Exhibit 3.79
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
PERKINELMER DETECTION SYSTEMS, INC.
(Pursuant to Section 905 of the California General Corporation Law)
=============================================
Christopher C. Cambria hereby certifies that:
1. He is the Vice President and Secretary of PerkinElmer Detection Systems,
Inc., a California corporation (the "Corporation").
2. Article First of the Articles of Incorporation of the Corporation is
hereby amended to read in full as follows:
"First: The name of the corporation is L-3 Communications Security and
Detection Systems Corporation California."
3. Article Fourth (a) of the Articles of Incorporation of the Corporation
is hereby amended to read in full as follows:
"Fourth: (a) The number of directors of the corporation shall be not
less than one (1) nor more than eight (8), the exact number of which shall
be fixed by a Bylaw adopted by the Board of Directors or by the
shareholders."
4. The foregoing amendments of the Articles of Incorporation of the
Corporation have been duly approved by the Board of Directors of the
Corporation.
5. The foregoing amendments of the Articles of Incorporation of the
Corporation have been duly approved by the required vote of shareholders
entitled to vote on such matter, pursuant to and in accordance with Section 902
of the California General Corporation Law. The total number of shares entitled
to vote on the foregoing matter is 500 shares of Common Stock. The number of
outstanding shares voting in favor of the foregoing amendment was 500 (100%),
which equaled or exceeded the vote required. The percentage vote required to
approve the foregoing amendment of the Articles of Incorporation of the
Corporation was a majority of the outstanding shares of Common Stock.
I further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this Certificate of Amendment are true
and correct of my own knowledge.
Dated: July 12, 2002
/s/ Christopher C. Cambria
------------------------------------------
Christopher C. Cambria, Vice President and
Secretary
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
----------------------------
PERKINELMER INSTRUMENTS, INC.
We, Robert Rosenthal and Philip Ayers, the Vice President and Secretary of
PerkinElmer Instruments, Inc., a corporation duly organized and existing under
the laws of the State of California, do hereby certify:
1. That they are the Vice President and the Secretary respectively, of
PerkinElmer Instruments, Inc., a California corporation.
2. That an amendment to the articles of incorporation of this corporation
has been approved by the board of directors.
3. The amendment so approved by the board of directors is as follows:
Article One of the articles of incorporation of this corporation is amended
to read as follows:
The name of the corporation is PerkinElmer Detection Systems, Inc.
4. That the corporation has only one class of shares and the total number
of outstanding shares is 500.
5. That the percentage vote required of each class is more than fifty
percent.
6. That the number of shares which gave written consent in favor of said
amendment exceeded the minimum percentage vote required.
7. That this certificate shall become effective upon filing.
Each of the undersigned declares under penalty of perjury that the
statements contained in the foregoing certificate are true of their own
knowledge.
Executed at Norwalk, Connecticut on June 22, 2000.
/s/ Robert Rosenthal
--------------------------------
Robert Rosenthal, Vice President
/s/ Philip Ayers
--------------------------------
Philip Ayers, Secretary
[LETTERHEAD OF THE PERKIN-ELMER CORPORATION]
November 29, 1999
Secretary of State
Legal Review Unit
1500 11th Street
Room 390
Sacramento CA 95814
Re: Consent to Use of Name
The Perkin-Elmer Corporation consents to the use of the Perkin Elmer name
in California by PerkinElmer, Inc. and its wholly owned subsidiaries.
The Perkin-Elmer Corporation
/s/ Thomas P. Livingston
------------------------
Thomas P. Livingston
Assistant Secretary
[LETTERHEAD OF PERKINELMER PRECISELY.]
November 29, 1999
Secretary of State
Legal Review Unit
1500 11 th Street
Room 390
Sacramento CA 95814
Re: Consent to Use of Name
PerkinElmer, Inc., which acquired the rights to the name Perkin Elmer from
The Perkin Elmer Corporation on May 28, 1999 (see attached consent from The
Perkin Elmer Corporation), consents to the use of the PerkinElmer name in
California by its wholly owned subsidiaries, PerkinElmer Holdings, PerkinElmer
LLC, PerkinElmer Optoelectronics NC, PerkinElmer Optoelectronics SC, PerkinElmer
Instruments, and PerkinElmer Astrophysics.
PerkinElmer, Inc.
/s/ Terrance L. Carlson
-----------------------
Terrance L. Carlson
Senior Vice President,
General Counsel & Clerk
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
-------------------------------------
EG&G ASTROPHYSICS
Robert Rosenthal and Philip Ayers of EG&G Astrophysics a corporation duly
organized and existing under the laws of the State of California do hereby
certify:
1. That they are the Vice President and the Secretary respectively of EG&G
Astrophysics a California corporation.
2. That an amendment to the articles of incorporation of this corporation
has been approved by the board of directors.
3. The amendment so approved by the board of directors is as follows:
Article first of the articles of incorporation of this corporation is
amended to read as follows:
That the name of the corporation is PerkinElmer Instruments, Inc.
4. That the corporation has only one class of shares and the total number
of outstanding shares is 500.
5. That the percentage vote required of each class is more than fifty
percent.
6. That the number of shares which gave written consent in favor of said
amendment exceeded the minimum percentage vote required.
7. That this Amendment shall become effective on January 1, 2000.
Each of the undersigned declares under penalty of perjury that the
statements contained in the foregoing certificate are true of their own
knowledge.
Executed at Wellesley, Massachusetts on December 16, 1999.
/s/ Robert Rosenthal
---------------------
Vice President
Robert Rosenthal
/s/ Philip Ayers
---------------------
Secretary
Philip Ayers
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
The undersigned certify that:
1. They are the President and the Assistant Secretary, respectively, of EG&G
ASTROPHYSICS RESEARCH CORPORATION, a California corporation.
2. Article First of the Articles of Incorporation of this corporation is
amended to read as follows: "The name of this Corporation is EG&G
Astrophysics."
3. The foregoing amendment of Articles of Incorporation has been duly approved
by the Board of Directors.
4. The foregoing amendment of the Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section
902, California Corporations Code. The total number of outstanding shares
of the corporation is five hundred (500). The number of shares voting in
favor of the amendment equaled or exceeded the vote required. The
percentage vote required was more than 50%.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
DATE: June 4, 1996 By: /s/ Thomas R. Schorling
------------------------- -----------------------------------
Its: Thomas R. Schorling
------------------------------------
President and Chief Operating Officer
By: /s/ John L. Healy
-------------------------------------
Its: John L. Healy
-----------------------------------
Assistant Secretary
AGREEMENT OF MERGER
OF
ASTROPHYSICS RESEARCH CORPORATION
AND
ESSEX PLACE ASTROPHYSICS, INC.
THIS AGREEMENT OF MERGER (this "Agreement") is entered into as of this 31st
day of October, 1988 by and among Astrophysics Research Corporation, a
California corporation ("ARC"), and Essex Place Astrophysics, Inc., a California
corporation ("Subsidiary").
1. ARC is a California corporation authorized to issue 20,000,000 shares of
common stock, par value $.10 per share ("Common Stock"), of which 8,206,522
shares are outstanding, and 420,000 shares of 7 3/4% Cumulative Convertible
Preferred Stock, par value $1.40 per share ("Preferred Stock"), of which no
shares are outstanding.
2. Subsidiary is a California corporation authorized to issue 500 shares of
common stock, no par value, of which 500 shares are outstanding as of the date
hereof, all of which are owned by EG&G, Inc.
3. Subsidiary shall be merged with and into ARC (the "Merger") in
accordance with the General Corporation Law of the State of California and on
the terms and conditions hereinafter set forth. At the Effective Time of the
Merger (as hereinafter defined), the separate existence of Subsidiary shall
cease, ARC shall be the surviving corporation and ARC shall succeed, without
other transfer, to all the rights and property of Subsidiary and shall be
subject to all the debts and liabilities thereof in the same manner as if ARC
had itself incurred them. All rights of creditors and all liens put on the
property of each corporation shall be preserved unimpaired; provided that such
liens shall be limited to the property affected thereby immediately prior to the
Effective Time of the Merger.
4. At the Effective Time of the Merger, each outstanding share of common
stock of Subsidiary shall be converted into one share of Common Stock of ARC.
5. At the Effective Time of the Merger, each share of Common Stock
outstanding immediately prior to the Effective Time of the Merger (except for
any such shares held by shareholders of ARC who perfect their rights as
dissenting shareholders under California law, which shares shall have the rights
and shall be extinguished as provided by California law) (collectively, the
"Shares") shall by virtue of the Merger cease to be outstanding and shall be
converted into .2376158 shares of common stock, par value $1.00 per share, of
EG&G.
6. Fractional shares shall not be issued and fractions of half or more
shall be rounded to the next higher number of whole shares and fractions of less
than half shall be disregarded except that if the fraction of a share which any
person would otherwise be entitled to receive is one-half of one percent or more
of the total shares such person would be entitled to receive, then such person
shall receive the next higher number of whole shares.
7. The conversion of shares as provided by this Agreement shall occur
automatically upon the Effective Time of the Merger without action by the
holders thereof. Each holder of
shares thereupon shall surrender his or her share certificate or certificates to
a representative of the First National Bank of Boston (the "Disbursing Agent")
and shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares into which his or her shares
theretofore represented by a certificate or certificates so surrendered shall
have been converted as aforesaid. Each holder of a certificate or certificates
representing shares of ARC Common Stock who has not surrendered his or her
shares to the Disbursing Agent within six months after the Effective Time of the
Merger shall look only to the Parent for delivery of certificates representing
shares of common stock in the Parent to which such stockholder is entitled,
subject to applicable escheat and other similar laws.
8. Notwithstanding that the conversion of shares pursuant to this Agreement
is automatic at the Effective Time of the Merger without action on the part of
the shareholder, dividends shall not be paid on the converted shares until the
surrender of certificates as provided in paragraph 7, but the amount of such
dividends shall be set aside. Upon such surrender of the certificate or
certificates, the dividends thus set aside shall be paid.
9. After the Effective Time of the Merger, Article First of the Articles of
Incorporation of ARC shall be amended and restated to read as follows:
"FIRST: The name of this corporation is EG&G Astrophysics Research
Corporation."
10. The Bylaws of the Subsidiary shall become the Bylaws of ARC by the
Merger.
11. Prior to the filing of this Agreement with the Secretary of State of
the State of California, this Agreement may, be amended by written agreement of
the Boards of Directors of Subsidiary and ARC, or by their respective officers
authorized by such Boards of Directors notwithstanding approval of this
Agreement by the shareholders of ARC and Subsidiary, provided that no such
amendment shall reduce the amount or change the form of the consideration to be
paid to the shareholders pursuant to this Agreement without the requisite vote
of the shareholders.
12. The effective date of the Merger is the date on which a copy of this
Agreement of Merger is filed with the Secretary of State of the State of
California (the "Effective Time of the Merger").
13. The corporations parties to this Agreement are also parties to an
Agreement and Plan of Reorganization and Merger.The two agreements are intended
to be construed together in order to effectuate their purposes.
14. This Agreement is intended as a Plan of Reorganization within the
meaning of Section 368 of the Internal Revenue Code.
2
IN WITNESS WHEREOF, the parties have caused this Agreement of merger to be
executed as of the date first above written.
ASTROPHYSICS RESEARCH CORPORATION
a California corporation
By: /s/
---------------------------------
Chairman of the Board of Directors
By: /s/
---------------------------------
Secretary
ESSEX PLACE ASTROPHYSICS, INC., a
California corporation
By: /s/
---------------------------------
President
By: /s/
---------------------------------
Secretary
3
OFFICERS' CERTIFICATE
OF
ASTROPHYSICS RESEARCH CORPORATION
Albert J. Centofante and Alicia Esquivel certify that:
1. They are the Chairman of the Board of Directors and Secretary,
respectively, of Astrophysics Research Corporation, a corporation organized
under the laws of the State of California ("ARC").
2. The authorized capital stock of ARC consists of 20,000,000 shares of
common stock, par value $.10 per share, of which 8,206,522 shares are
outstanding, and 420,000 shares of 7 3/4% Cumulative Convertible Preferred
Stock, par value $1.40 per share, of which no shares are outstanding.
3. The principal terms of the Agreement of Merger in the form attached
hereto were approved by ARC by the vote of a number of shares of Common Stock
which equaled or exceeded the vote required.
4. The percentage vote required was more than 50% of the Common Stock.
DATED: 10-31 , 1988. /s/ Albert J. Centofante
------------------- ------------------------
Albert J. Centofante
Chairman of the Board of Directors
DATED: 10-31 , 1988. /s/ Alicia Esquivel
------------------- -------------------
Alicia Esquivel, Secretary
VERIFICATION BY WRITTEN DECLARATION
Albert J. Centofante declares under penalty of perjury under
the laws of the State of California that he has read the foregoing certificate
and knows the contents thereof and that the same is true of his own knowledge.
DATED: 10-31 , 1988. /s/ Albert J. Centofante
-------------------- ------------------------
Albert J. Centofante
Alicia Esquivel declares under penalty of perjury under the
laws of the State of California that she has read the foregoing certificate and
knows the contents thereof and that the same is true of her own knowledge.
DATED: 10-31 , 1988. /s/ Alicia Asquivel
-------------------- -------------------
Alicia Esquivel
OFFICERS' CERTIFICATE
OF
ESSEX PLACE ASTROPHYSICS, INC.
Louis P. Valente and John S. Donahue certify that:
1. They are the President and Secretary, respectively, of Essex Place
Astrophysics, Inc., a corporation organized under the laws of the State of
California.
2. The corporation has only one class of shares and the total number of
outstanding shares is 500.
3. The principal terms of the agreement in the form attached were approved
by the corporation by the vote of a number of shares of each class which equaled
or exceeded the vote required.
4. The percentage vote required of each class is more than fifty percent.
5. Equity securities of the corporation's parent corporation, EG&G, Inc., a
corporation organized under the laws of the Commonwealth of Massachusetts, are
to be issued in the merger and no vote of the shareholders of the parent
corporation was required.
Dated: October 31, 1988
/s/ Louis P. Valente
-----------------------
Louis P. Valente, President
/s/ John S. Donahue
-----------------------
John S. Donahue, Secretary
The undersigned, Louis P. Valente and John S. Donahue, each declare that
they have read the foregoing Certificate and know the contents thereof and that
the matters set forth in such Certificate are true of their own knowledge.
Executed on October 31, 1988 at Wellesley, Massachusetts.
/s/ Louis P. Valente
-----------------------
/s/ John S. Donahue
-----------------------
CERTIFICATE OF CORRECTION OF THE
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
ASTROPHYSICS RESEARCH CORPORATION
ALBERT J. CENTOFANTE and ALICIA ESQUIVEL certify that:
1. They are President and Secretary, respectively, of ASTROPHYSICS RESEARCH
CORPORATION.
2. The name of the Corporation is ASTROPHYSICS RESEARCH CORPORATION and it
is a California corporation.
3. The instrument being corrected is entitled "CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF ASTROPHYSICS RESEARCH CORPORATION" and said
instrument was filed with the Secretary of State of the State of California on
November 9, 1987.
4. Paragraph 4 of said Certificate of Amendment, as corrected, should read
as follows:
"The foregoing amendments have been duly approved by the required
number of shareholders in accordance with Section 902 of the California
Corporations Code. The Corporation has one class of shares outstanding. The
total number of outstanding shares of the corporation is 8,213,940. The
number of shares in favor of the amendment equalled or exceeded the vote
required. The percentage vote required was more than 50% of the outstanding
class of shares."
5. Said Paragraph 4, as corrected, conforms to the form of the amended
Articles as adopted by the Board of Directors and shareholders of the
Corporation.
6
We further declare under penalty of perjury under the laws of the State of
California that the matter set forth in this certificate are true and correct to
our own knowledge.
DATE: Nov. 23, 1987.
/s/ Albert J. Centofante
--------------------------
Albert J. Centofante
President
/s/ Alicia Esquivel
--------------------------
Alicia Esquivel
Secretary
7
AGREEMENT OF MERGER
AGREEMENT OF MERGER dated as of October 12, 1987 ("Agreement of Merger") by
and between SCANRAY CORPORATION, a California corporation ("Scanray"), and
ASTROPHYSICS RESEARCH CORPORATION, a California corporation ("ARC").
WHEREAS, ARC has 8,213,940 shares of Common Stock issued and outstanding,
7,852,393 of which are owned by Scanray;
WHEREAS, the respective Boards of Directors of Scanray and ARC deem it
desirable and for the benefit of Scanray and ARC (together, the "Constituent
Corporations") and their respective shareholders that Scanray and ARC be merged
into a single corporation with ARC being the surviving corporation (the
"Surviving Corporation") on the terms and conditions herein set forth and have
approved this Agreement of Merger; and
WHEREAS, as and when required by the provisions of this Agreement of
Merger, the shares of Common Stock of ARC held by Scanray will be cancelled and
ARC will issue shares of its Common Stock to the holders of shares of Common
Stock of Scanray sufficient in number and amount to carry out the exchange of
shares on the Effective Date of the Merger (as defined in Section 3.3 hereof) as
herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree that, pursuant to California General
Corporation Law Section 1101, Scanray and ARC shall be merged into a single
corporation, and that the terms and conditions of such merger (the "Merger") are
as follows:
1
ARTICLE I
THE PLAN OF MERGER
SECTION 1.1 - MERGER AND SURVIVING CORPORATION
In accordance with the applicable laws of the State of California, Scanray
shall be merged with and into ARC, and ARC shall be the Surviving Corporation
after the Merger and shall continue to exist as a corporation created and
governed by the laws of the State of California.
SECTION 1.2 - NAME OF THE SURVIVING CORPORATION
The name of the Surviving Corporation shall be "Astrophysics Research
Corporation".
SECTION 1.3 - PURPOSES OF SURVIVING CORPORATION
The purposes of the Surviving Corporation shall be the purposes set forth
in the Articles of Incorporation of ARC on file with the Secretary of the State
of California, which Articles are incorporated herein by reference.
SECTION 1.4 - BY-LAWS
The By-Laws of ARC, as in effect immediately prior to the Effective Date of
the Merger, shall be the By-Laws of the Surviving Corporation from and after the
Effective Date of the Merger.
SECTION 1.5 - OFFICERS AND DIRECTORS
The officers and directors of ARC in office immediately prior to the
Effective Date of the Merger shall be the officers and directors of the
Surviving Corporation, holding the offices in the Surviving Corporation which
they held in ARC immediately prior to the Effective Date of the Merger.
2
ARTICLE 2
CONVERSION OR CANCELLATION OF THE SHARES OF
COMMON STOCK OF THE CONSTITUENT CORPORATIONS
The manner of converting the shares of the Constituent Corporations into
shares of the Surviving Corporation upon the effectiveness of the Merger shall
be as follows:
SECTION 2.1 - STOCK OF ARC
Each share of Common Stock of ARC which shall be outstanding on the
Effective Date of the Merger, other than shares held by Scanray and other than
shares held by shareholders who perfect their rights as dissenting shareholders
under California law, shall continue to be one share of Common Stock of the
Surviving Corporation and shall not be affected by the Merger. Each share of
Common Stock of ARC held by Scanray on the Effective Date of the Merger shall be
cancelled.
SECTION 2.2 - STOCK OF SCANRAY
Each share of Common Stock of Scanray which shall be outstanding on the
Effective Date of the Merger shall be converted into 196.30982 shares of Common
Stock of ARC. No fractional shares, or cash in lieu thereof, will be issuable or
payable as a result of such conversion.
ARTICLE 3
APPROVAL, FILING, EFFECTIVE DATE AND EFFECT OF MERGER
SECTION 3.1 - APPROVAL BY SCANRAY AS MAJORITY SHAREHOLDER OF ARC
A proposal to approve this Agreement of Merger shall be submitted to
Scanray, the holder of 95% of the voting power of ARC, for consideration and
action thereon by written consent. Following such approval, notice of such
approval shall be given to the other shareholders of ARC, in accordance with
Section 603(b)(1) of the California General Corporation Law.
3
SECTION 3.2 - FILING OF AGREEMENT OF MERGER
Unless abandoned pursuant to the provisions of Article 4 hereof, upon the
date upon which the issuance of the shares of ARC pursuant to the Merger is
effectively qualified with the California Commissioner of Corporations or the
date which is ten days after the giving of the notice referred to in Section 3.1
hereof, whichever shall last occur, a copy of this Agreement of Merger with an
officers' certificate of each Constituent Corporation attached, as required
under Section 1103 of the California General Corporation Law, shall be filed
with the Secretary of the State of California in the manner required under the
laws of the State of California.
SECTION 3.3 - EFFECTIVE DATE
The Merger contemplated herein shall become effective (the "Effective Date
of the Merger") upon the date of the filing referred to in Section 3.2 hereof
with the Secretary of the State of California.
SECTION 3.4 - EFFECT OF MERGER
Upon the Effective Date of the Merger, the separate existence of Scanray
shall cease, and Scanray shall be merged with and into ARC, which shall continue
to exist as the Surviving Corporation in accordance with California General
Corporation Law Section 1107.
SECTION 3.5 - DELIVERY OF SHARES
The cancellation and the conversion of shares as provided by this Agreement
of Merger shall occur automatically upon the Effective Date of the Merger
without action by the holders thereof. Each holder of Scanray Common Stock
thereupon shall surrender his certificate or certificates to the Secretary of
ARC and shall be entitled to receive in exchange therefor a certificate(s)
representing the number of shares into which his shares theretofore represented
by
4
the certificate or certificates so surrendered shall have been converted as
aforesaid. Scanray shall surrender to the Secretary of ARC for cancellation the
shares of ARC held by Scanray.
ARTICLE 4
ABANDONMENT
Notwithstanding approval of this Agreement of Merger by the shareholders of
either of the Constituent Corporations, this Agreement of Merger may be
terminated and the Merger may be abandoned at any time prior to the filing of a
copy of this Agreement of Merger with the Secretary of the State of California
as follows:
(a) By mutual consent of the Boards of Directors of the Constituent
Corporations;
(b) By either Constituent Corporation if, in the opinion of its Board of
Directors, the consummation of this Agreement of Merger and the Merger
are not, for any reason, in the best interests of the corporation and
its shareholders.
(c) By either Constituent Corporation if the Effective Date of the Merger
shall not have occurred on or before December 31, 1987.
(d) In the event of the termination of this Agreement of Merger and the
abandonment of the Merger pursuant to subsection (b) or (c), notice
shall forthwith be given to the other party. In the event of the
termination of this Agreement of Merger and abandonment of the Merger
in accordance with the provisions of this Article 4, there shall be no
liability on the part of either party hereto to the other party.
5
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 - AMENDMENT AND MODIFICATION
The parties hereto, by mutual consent of their respective Boards of
Directors or the responsible officers authorized by such Boards of Directors,
may amend or supplement this Agreement of Merger in such manner as may be agreed
upon by the parties hereto in writing; provided, however, that no such amendment
may be made after approval of this Agreement of Merger by Scanray as the
majority shareholder of ARC.
SECTION 5.2 - ARTICLE AND SECTION HEADINGS
The article and section headings contained in this Agreement of Merger are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement of Merger.
SECTION 5.3 - COUNTERPARTS
This Agreement of Merger may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6
IN WITNESS WHEREOF, each of the Constituent Corporations has caused this
Agreement of Merger to be executed in its corporate name by its appropriate
officers as of the date first above written.
SCANRAY CORPORATION
a California corporation
By: /s/ Albert J. Centofante
-------------------------------
Albert J. Centofante, President
By: /s/ Alicia Esquivel
-------------------------------
Alicia Esquivel, Secretary
ASTROPHYSICS RESEARCH CORPORATION,
a California corporation
By: /s/ Albert J. Centofante
-------------------------------
Albert J. Centofante, President
By: /s/ M. Carlene Davidson
-------------------------------
M. Carlene Davidson, Secretary
7
OFFICERS' CERTIFICATE OF MERGER
FOR
SCANRAY CORPORATION
We, the undersigned, do certify that:
1. We are, and at all times herein mentioned were, the duly elected or
appointed and qualified President and Secretary of Scanray Corporation, herein
called "said corporation," a corporation duly organized and existing under the
laws of the State of California.
2. On October 12, 1987, the Board of Directors of said corporation approved
the attached merger agreement in the form attached.
3. The merger agreement was entitled to be and was approved by the Board of
Directors of said corporation alone under the provisions of Section 1201 of the
California Corporations Code because shareholders of said corporation
immediately prior to the merger shall own, immediately after the merger, equity
securities other than warrants or rights to subscribe or purchase equity
securities of the surviving corporation possessing more than five-sixths of the
voting power of the surviving corporation, to wit: the shareholders of said
corporation immediately before the merger will immediately after the merger own
7,852,390 of the 8,213,937 outstanding voting shares of the surviving
corporation.
We declare under penalty of perjury that the foregoing is true and correct
of our own knowledge. Executed at Long Beach, Los Angeles County, California on
October 14, 1987.
/s/ Albert J. Centofante
----------------------------------------
Albert J. Centofante, President
/s/ Alicia Esquivel
----------------------------------------
Alicia Esquivel, Secretary
2
OFFICERS' CERTIFICATE OF MERGER
FOR
ASTROPHYSICS RESEARCH CORPORATION
We, the undersigned, do certify that:
1. We are, and at all times herein mentioned were, the duly elected and
qualified President and Secretary of Astrophysics Research Corporation, herein
called "said corporation", a corporation organized and existing under the laws
of the State of California.
2. On October 12, 1987, the principal terms of the merger agreement in the
form attached hereto were approved by said corporation by a vote of a number of
shares of each class which equaled or exceeded the vote required, under the
General Corporation Law of California, for approval of the principal terms of
the merger described in the attached agreement by the outstanding shares of each
class of said corporation.
3. The total number of outstanding shares of each class of said corporation
entitled to vote on the merger was and is: 8,213,940 Common Shares.
4. The percentage vote required by each class, and the number and
percentage of affirmative votes cast by each class is as follows:
PERCENTAGE PERCENTAGE
VOTES AFFIRMATIVE VOTE
CLASS REQUIRED VOTES CAST OBTAINED
- ------------- ------------ ----------- ----------
Common Shares 50% plus 1 7,852,393 95.6%
We declare under penalty of perjury that the foregoing matters stated in
this certificate are true to our knowledge. Executed at Long Beach, Los Angeles
County, California on October 14, 1987.
/s/ Albert J. Centofante
--------------------------------------
Albert J. Centofante, President
/s/ M. Carlene Davidson
--------------------------------------
M. Carlene Davidson, Secretary
2
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION OF
ASTROPHYSICS RESEARCH CORPORATION
ALBERT J. CENTOFANTE and EDITH J. GILLIAT hereby certify:
1. That they are the President and the Secretary respectively of
Astrophysics Research Corporation, a California corporation.
2. That the by-laws authorize the Directors to act by unanimous written
consent without a meeting; and that on February 23, 1976, by unanimous written
consent without a meeting, the Directors adopted a resolution, amending the
Articles as follow.
RESOLVED, that so much of Article FIFTH of the Articles of Incorporation
which now reads:
"FIFTH: This corporation is authorized to issue two classes of shares
to be designated respectively 7 3/4% Cumulative Convertible Preferred Stock
(hereinafter called "Preferred") and Common Stock (hereinafter called
"Common"). The total number of shares which this corporation shall have
authority to issue is 2,420,000 and the aggregate par value of all the
shares that are to have a par value shall be $788,000; the number of shares
of Preferred shall be 420,000 and the par value of each share of Preferred
shall be $1.40; the number of shares of Common shall be 2,000,000 and the
par value of each share of Common shall be $0.10."
be amended to read:
"FIFTH: This corporation is authorized to issue two classes of shares
to be designated respectively 7 3/4% Cumulative Convertible Preferred Stock
(hereinafter called "Preferred") and Common Stock (hereinafter called
"Common"). The total
number of shares which this corporation shall have authority to issue is
8,920,000 and the aggregate par value of all the shares that are to have a
par value shall be $1,438,000; the number of shares of Preferred shall be
420,000 and the par value of each share of Preferred shall be $1.40; the
number of shares of Common shall be 8,500,000 and the par value of each
share of Common shall be $0.10."
3. That the stockholders have adopted said amendment by resolution at a
meeting held at Harbor City, California on March 22, 1976. That the wording of
the amended article as set forth in the shareholder's resolution, is the same as
that set forth in the director's resolution in Paragraph 2 above.
4. That the number of shares which voted affirmatively for the adoption of
said resolution is 415,813 and that the total number of shares entitled to vote
on or consent to said amendment is 823,094.
/s/ Albert J. Centofante
-----------------------------------
Albert J. Centofante, President
/s/ Edit J. Gilliat
-----------------------------------
Edith J. Gilliat, Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing certificate are true and correct.
Executed at Harbor City, California, on March 23, 1976.
/s/ Albert J. Centofante
-----------------------------------
Albert J. Centofante
/s/ Edith J. Gilliat
-----------------------------------
Edith J. Gilliat
2
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION OF
ASTROPHYSICS RESEARCH CORPORATION
ALBERT J. CENTOFANTE and LEE SOBEL hereby certify:
1. That they are the president and the secretary. respectively, of
ASTROPHYSICS RESEARCH CORPORATION, a California corporation.
2. That the bylaws of said corporation authorize the directors to adopt
resolutions amending the articles by unanimous written consent without a
meeting; and that on March 12, 1971, by unanimous written consent without a
meeting, the directors adopted a resolution amending the articles as follows:
RESOLVED, that Article FIFTH of the Articles of Incorporation of this
corporation, be amended to read as follows:
"FIFTH: This corporation is authorized to issue two classes of shares
to be designated respectively 7 3/4% Cumulative Convertible Preferred Stock
(hereinafter called "Preferred") and Common Stock (hereinafter called
"Common"). The total number of shares which this corporation shall have
authority to issue is 2,420,000 and the aggregate par value of all the
shares that are to have a par value shall be $788,000; the number of shares
of Preferred shall be 420,000 and the par value of each share of Preferred
shall be $1.40; the number of shares of Common shall be 2,000,000 and the
par value of each share of Common shall be $0.10.
The corporation shall at all times reserve and keep available out of
its authorized but unissued common shares, shall obtain and keep in force
such permits or other authorizations as may be required, and shall comply
with all requirements as to registration or other qualification, in order
to enable the corporation lawfully to issue and deliver solely for the
purpose of effecting the conversion of the Preferred and lawfully to issue
and deliver solely for the purpose of effecting the exercise of the Warrant
(as hereinafter defined), such number of shares of Common as shall from
time to time be sufficient to effect such conversion and such exercise. The
corporation shall from time to time in accordance with the laws of the
State of California increase the authorized amount of its shares of Common
if at any time the number of common shares remaining unissued and available
for issuance shall not be sufficient to permit conversion of the Preferred
and exercise of the Warrant.
A statement of the designations, relative rights, preferences, powers,
qualifications, limitations and restrictions granted to or imposed upon the
respective classes and series of the shares of capital stock or the holders
thereof is as follows:
SECTION 1. Definitions--For the purposes of this Article FIFTH the
following definitions shall apply:
(A) The term "Additional Shares of Common" shall mean all shares of
Common issued by this corporation after March 10, 1971, except
(i) the shares of Common into which the Preferred is convertible
and the shares into which the Preferred shall have been converted,
(ii) Warrant Stock, and
(iii) all shares of Common up to an aggregate of 810,000 shares,
issuable upon (a) exercise of any warrants, options or stock purchase
rights granted under or in connection with agreements of employment
with employees of this corporation and its Subsidiaries and under
agreements engaging the services of consultants to this corporation
and its Subsidiaries, (b) any merger or consolidation approved in
accordance with Section 8.F hereof, and (c) any acquisition of all or
substantially all of the business of any Person made with the prior
approval of the holders of not less than 66 ?% of the outstanding
shares of the Preferred; and the shares which shall have been
thereupon issued.
(B) The term "Board" shall mean the Board of Directors of this
corporation;
(C) The term "Common" shall mean this corporation's common stock.
(D) The terms "Consolidated Excess of Current Assets over Current
Liabilities" "Consolidated Junior Net Tangible Assets" and "Consolidated
Net Income", shall mean the "Excess of Current Assets over Current
Liabilities", "Junior Net Tangible Assets" and "Net Income" of this
corporation and its Subsidiaries (whether or not ordinarily consolidated in
consolidated financial statements of this corporation and its
Subsidiaries), all consolidated in accordance with generally accepted
accounting principles consistently applied.
(E) "Consolidated Net Income" shall mean the Net Income of this
corporation and its Subsidiaries (whether or not ordinarily consolidated in
consolidated financial statements of this corporation and its Subsidiaries)
consolidated in accordance with generally accepted accounting principles
consistently applied.
(F) "Conversion Price" shall mean the price per share of Common at
which the Preferred may be converted to Common Stock (as provided in
Section 7 hereof) and such other prices as shall result from adjustments to
this sum pursuant to the provisions of Section 7 hereof.
(G) "Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities which are convertible into or
exchangeable for Additional Shares of Common.
(H) The term "Current Assets" of any corporation shall include, at any
date, all assets which would, in accordance with generally accepted
accounting principles, be classified as current assets, but in any event
not including
2
(iv) any shares of stock or any indebtedness of such corporation
held in the treasury of such corporation;
(v) any shares of stock of a Subsidiary of such corporation; and
(vi) any franchises, licenses, permits, patents, patent
application, copyrights, trademarks, trade names, good will,
experimental or organizational expense, unamortized debt discount and
expense, deferred charges, unamortized excess of cost over book value
of assets acquired and all other items treated as intangibles.
Cash or other assets may be included in Current Assets notwithstanding the
fact that they have been segregated or separately classified on the books of
such corporation for the purpose of meeting current liabilities.
(I) "Current Market Price" per share of Common for the purposes of any
provision of this Article at the date therein specified, shall be deemed to
be the average of the daily market prices for 30 consecutive business days
commencing 45 business days before such date. The market price for each
such business day shall be the last sale price on such day on the New York
Exchange, or, if the Common is not then listed or admitted to trading on
the New York Stock Exchange, on such other stock exchange on which such
stock is then listed or admitted to trading, or, if no sale takes place on
such day on any such exchange, the average of the closing bid and asked
prices on such day as officially quoted on any such exchange, or, if the
Common is not then listed or admitted to trading on any stock exchange, the
market price for each such business day shall be the average of the
reported closing bid and asked price quotations on such day in the
over-the-counter market, as furnished by the National Quotation Bureau,
Inc., or, if such firm at the time is not engaged in the business of
reporting such prices, as furnished by any similar firm then engaged in
such business and selected by this corporation, or if there is no such
firm, as furnished by any member of the National Association of Securities
Dealers, Inc., selected by this corporation. If the Current Market Price
per share of Common cannot be ascertained by any of the foregoing methods,
the Current Market Price per share of Common shall be deemed to be fifteen
times the Consolidated Net Income per share of Common of this corporation
and its Subsidiaries for the most recent fiscal year, as determined by the
audited financial statements of this corporation and its Subsidiaries, and
after giving effect to any then outstanding conversion privileges,
warrants, options and other similar rights.
(J) The term "Excess of Current Assets over Current Liabilities" of
any corporation shall mean, at any date, the excess of the Current Assets
of such corporation over all liabilities (including tax and other proper
accruals) of such corporation which would, in accordance with generally
accepted accounting principles, be classified as current liabilities, but
in any event including
(i) all Indebtedness of such corporation payable on demand or
maturing not more than one year after such date (except such
Indebtedness as is, pursuant to the terms of a revolving credit
agreement or otherwise, renewable or extendible at the option of such
corporation for a period ending more than one year after such date),
including any
3
fixed payments (whether installment, serial maturity or sinking fund
payments or otherwise) required to be made by such corporation not
more than one year after such date in respect of the principal of any
of its Indebtedness.
(ii) all reserves in respect of liabilities or Indebtedness
(payable on demand or not more than one year after such date) the
validity of which is at such date contested by such corporation; and
(iii) all liabilities of such corporation (1) to any government
or any subdivision or agency thereof for amounts collected by such
corporation under any sales tax law or withheld from salaries or wages
of persons in its employ under any income tax or any social security
or similar law applicable to such persons, and (2) on account of
amounts withheld or collected by such corporation from persons in its
employ for the purpose of purchasing obligations of any government.
(K) "Funded Indebtedness" of any corporation shall include at any
date, all Indebtedness of such corporation which would, in accordance with
sound accounting practice, be classified a funded indebtedness, and all
Indebtedness, whether secured or unsecured, of such corporation having a
final maturity (or which, pursuant to the terms of a revolving credit
agreement or otherwise, is renewable or extendible at the option of such
corporation for a period ending) more than one year after the date of the
creation thereof, notwithstanding the fact that payments in respect thereof
(whether installment, serial maturity, or sinking fund payments or
otherwise) are required to be made by such corporation less than one year
after the date of the creation thereof and notwithstanding the fact that
any amount thereof is at the time included also in current liabilities. Any
Indebtedness which is extended or renewed shall be deemed to have been
created at the date of such extension or renewal.
(L) The term "Indebtedness" of any corporation shall mean the
principal of (and premium, if any) and unpaid interest on
(i) indebtedness which is for money borrowed from others;
(ii) indebtedness guaranteed, directly or indirectly, in any
manner by such corporation, or in effect guaranteed, directly or
indirectly, by such corporation through an agreement, contingent or
otherwise, to supply funds to or in any other manner invest in the
debtor, or to purchase indebtedness, or to purchase property or
services primarily for the purpose of enabling the debtor to make
payment of the indebtedness or of assuring the owner of the
indebtedness against loss;
(iii) all indebtedness secured by any mortgage, lien, pledge,
charge or other encumbrance upon property owned by such corporation,
even though such corporation has not in any manner become liable for
the payment of such indebtedness;
(iv) all indebtedness of such corporation created or arising
under any conditional sale, lease or other title retention agreement
with respect to property acquired by such corporation even though the
rights and remedies of the seller, lessor or lender
4
under such agreement or lease in the event of default are limited to
repossession or sale of such property; and
(v) renewals, extensions and refundings of any such indebtedness.
(M) The term "Junior Net Tangible Assets" of this corporation shall
mean, at any date, the excess of its Net Tangible Assets over
(i) the par value of the Preferred outstanding at such date, plus
(ii) the greater of the par or stated value of, or consideration
received in respect of, or the amount payable on the redemption of,
any of its then outstanding stock having any priority as to dividends
or assets superior to or on a parity with any such priority of the
Preferred.
(N) The term "Junior Stock" shall mean all stock of this corporation
other than the Preferred.
(O) The term "Majority Voting Right Event" shall mean any time when
this corporation shall
(i) be in default (which default shall not have been cured) in
whole or in part in the payment of four or more quarterly dividends
(whether consecutive or not) on any share of the Preferred;
(ii) be in default (which default shall not have been cured) in
whole or in part in any two years, whether consecutive or not in
redeeming the Preferred as provided in Section 5 hereof; or
(iii) be in default in any of the provisions of Section 8 hereof.
(P) The term "Net Income" for any period shall mean the net income (or
net loss) of any corporation for such period including gains or losses from
sales or other dispositions of capital assets in the normal course of
business, after deducting all charges which should be deducted before
arriving at net income available for dividends after making proper
provisions for minority interests in Subsidiaries, but before deduction for
any taxes (or provision or reserve therefor) based on income, all as
determined in accordance with generally accepted accounting principles
consistently applied; provided, however, that
(i) gains or losses from sales or other dispositions of capital
assets other than in the normal course of business shall be excluded
in the determination of Net Income,
(ii) reserves (including reserves for contingencies, whether
general or special) set aside out of income shall be deducted in the
determination of Net Income,
(iii) all expenditures which have been capitalized and which,
pursuant to generally accepted accounting principles, are classified
as intangible assets (other than
5
expenses properly applicable to the organization of such corporation)
shall be deducted in the determination of Net Income, and
(iv) any amounts set aside out of income as reserves and which in
accordance with generally accepted accounting principles are
subsequently transferred to surplus shall be added in the
determination of Net Income.
(Q) The term "Net Tangible Assets" of any corporation shall mean at
any date the excess of
(i) the aggregate of all assets of such corporation, at their net
book values (after deducting related depreciation, amortization and
other valuation reserves) as shown on a balance sheet of such
corporation, prepared in accordance with generally accepted accounting
principles, other than (a) intangible assets, such as good will,
trademarks, brand names, and patents, (b) treasury stock, (c)
unamortized debt discount and expense, and (d) capitalized development
and marketing expenses and less all reserves other than those already
deducted from related assets and other than reserves which, in effect,
are appropriations of earned surplus as set forth on such balance
sheet and after appropriate adjustments are made on account of
minority interests, if any, in Subsidiaries,
over
(ii) the book value of all its liabilities.
(R) The term "Person" shall mean an individual, a corporation, a
partnership, a trust, an unincorporated organization or a government
organization or any agency or political subdivision thereof.
(S) The term "Subsidiary" shall mean any corporation at least 50% of
whose outstanding voting stock shall at the time be owned directly or
indirectly by this corporation or by one or more Subsidiaries or by this
corporation and one or more Subsidiaries.
(T) The term "Warrant" shall mean the warrant for the purchase,
initially, of 120,000 shares of Common, to be issued pursuant to a Purchase
Agreement dated March 10, 1971 between this corporation and Allstate
Insurance Company.
(U) The term "Warrant Stock" shall mean the shares of Common into
which the Warrant is convertible and the shares into which the Warrant
shall have been converted.
SECTION 2. Dividend Rights of Preferred--The holders of the Preferred shall
be entitled to receive, out of any funds legally available therefor, dividends
at the rate of seven and three-quarters per cent per annum of the par value
thereof, and no more, payable in cash quarterly commencing on the 30th day of
June, 1971, and on the 31st day of March, 30th day of June and September and
31st day of December in each year ("dividend payment dates") when and as
declared by the Board. With respect to any share of Preferred issued within
three months preceding any of such dates, the initial dividend thereon shall be
prorated and paid for only such portion of said three-months period as shall
precede such initial dividend payment date. Such
6
dividends, computed on the basis of a 360-day year, shall accrue on each such
share from the date of its original issuance and shall accrue from day to day,
whether or not earned or declared. Such dividends shall be cumulative so that if
the full dividends in respect of any previous quarterly dividend period and for
the current quarterly period, shall not have been paid on the Preferred at the
time outstanding, the deficiency shall be fully paid on or declared and set
apart for such shares before any dividend or other distribution shall be paid on
or declared or set apart for any Junior Stock and before any redemption,
retirement, purchase or other acquisition of any Junior Stock.
SECTION 3. Liquidation Rights of Preferred--In the event of any voluntary
liquidation, dissolution or winding up of this corporation, the holders of each
share of Preferred shall be entitled to receive, ratably, a preferential amount
in cash equal to all accrued and unpaid dividends due thereon to the date that
payment is available to said holders whether earned, legally available therefor
or declared or not, and an amount for each share of Preferred determined
according to the date of such voluntary liquidation, dissolution or winding up
of this corporation as follows:
If before March 31, 1976--$1.48
If before March 31, 1977--$1.47
If before March 31, 1978--$1.45
If before March 31, 1979--$1.43
If before March 31, 1980--$1.41
In the event of any involuntary liquidation, dissolution or winding up of
this corporation, the holders of each share of Preferred shall be entitled to
receive a preferential amount equal to the par value thereof, and a further
preferential amount in cash equal to all accrued and unpaid dividends thereon
whether earned, legally available therefor or declared or not, to the date that
payment is made available to the holders of each share of Preferred.
In the event of a voluntary or involuntary liquidation, dissolution or
winding up, the holder of each share of Preferred shall share equally in any
funds available for distribution under this Section 3.
All of the preferential amounts to be paid to the holders of Preferred as
in this Section 3 provided shall be paid or set apart for payment before the
payment or setting apart for payment of any amount for, or the distribution of
any assets of this corporation to, the holders of any junior Stock in connection
with such liquidation, dissolution or winding up.
After the payment or the setting apart for payment to the holder of
Preferred of the preferential amounts so payable to them, the holders of Junior
Stock shall be entitled to receive all remaining assets of this corporation. A
liquidation, dissolution or winding up of this corporation, as such terms are
used in this Section 3, shall not be deemed to be occasioned by or to include
any consolidation or merger of this corporation with or into any other
corporation or corporations or a reorganization within the meaning of Section
368(a)(1)(B) or (C) of the Internal Revenue Code of 1954, as amended.
7
SECTION 4. Redemption--This corporation may not redeem any Preferred prior
to March 31, 1976. At and after March 31, 1976, this corporation may at its
option, from time to time upon any Sinking Fund Payment Date (as hereinafter in
Section S defined) redeem, in addition to the shares of Preferred redeemed
through the application of funds in the Sinking Fund, as hereinafter provided,
an equal or lesser number of shares of Preferred. The redemption price for each
share of Preferred so redeemed shall be an amount in cash equal to all accrued
and unpaid dividends thereon whether earned, legally available therefor or
declared or not, to the date of redemption plus the amount which would be
payable in accordance with Section 3 above on a voluntary liquidation if such
liquidation took place on the date of redemption.
Redemption of less than all of the then outstanding shares of Preferred
shall be pro rata among the holders of the Preferred.
At least sixty days previous notice by snail, postage prepaid, shall be
given to the holders of record of the Preferred to be redeemed, such notice to
be addressed to each such shareholder at his post office address as shown by the
records of this corporation; if such redemption occurs after March 31, 1976,
said notice shall be sent to the holders of record of all shares of outstanding
Preferred. On or after the date fixed for redemption and stated in said notice,
said holder of the Preferred shall surrender his certificate for such shares to
this corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price. In case less than all the
shares represented by any such surrendered certificate are redeemed, a new
certificate shall forthwith be issued representing the unredeemed shares. If
such notice of redemption shall have been duly given, and if on the date fixed
for redemption funds necessary for the redemption shall be available therefor,
then notwithstanding that the certificates evidencing any shares of Preferred so
called for redemption shall not have been surrendered, dividends shall cease to
accrue on those shares of Preferred so called for redemption, and all rights
with respect to said shares so called for redemption shall forthwith after such
date cease and determine, except only the rights of the holders to receive the
redemption price thereof, without interest, upon surrender of their certificates
therefor.
The holder of shares to be redeemed may, any time after notice is given
hereunder but before the date fixed for redemption, exercise his right under
Section 7 hereof to convert into Common the shares of Preferred to be redeemed,
and such conversion shall terminate or reduce pro tanto this corporation's right
to redeem shares of Preferred on such Sinking Fund Payment Date.
SECTION 5. A. Sinking Fund--So long as any shares of Preferred shall be
outstanding, this corporation shall, as a sinking fund for the purchase or
redemption of the Preferred (herein called the "Sinking Fund") set aside
annually in cash, for payment on March 31st of each year (hereinafter called
"Sinking Fund Payment Date") commencing in the year 1976 and ending in the year
1980, a sum equal to the aggregate par value of the Preferred then outstanding
divided by the number of remaining Sinking Fund Payment Dates, including the
current such date, said cash to be set aside out of any monies legally available
for the Sinking Fund, after full payment or provision for payment has been made
for all unpaid and accumulated dividends on the Preferred and the dividends due
on such date. If, on any Sinking Fund Payment Date, the funds of this
corporation legally available therefor shall be insufficient to discharge the
Sinking Fund requirements in full, funds to the extent legally available for
such purpose shall be set aside on a
8
pro rata basis. Such Sinking Fund requirements shall be cumulative so that if,
for any year or years, such requirements shall not be fully discharged as they
become due, funds legally available therefor, as herein provided, after such
payment or provision for dividends, for each fiscal year thereafter, shall be
applied thereto until such requirements are fully discharged.
B. Redemption of Preferred from the Sinking Fund--On each Sinking Fund
Payment Date, the money in the Sinking Fund shall be used to redeem, at par, on
a pro rata basis among the holders thereof, Preferred of an aggregate par value
equal to the amount of the Sinking Fund Payment Date requirement for each such
Sinking Fund. Redemptions of Preferred, in accordance with this subsection B,
shall be in accordance with the procedures provided in Section 4 hereof, at the
redemption price of the par value of the shares to be redeemed plus in each case
an amount in cash equal to accrued and unpaid dividends thereon to the date of
redemption, whether earned, legally available therefor or declared or not, to
the Sinking Fund Payment Date, to be paid from the general funds of this
corporation and not from the respective Sinking Fund. Any remaining money in the
Sinking Fund shall become a part of the general funds of this corporation.
SECTION 6. Contingent Voting Rights to Elect a Majority of Directors--Upon
the occurrence of a Majority Voting Right Event, the holders of the Preferred,
voting as a class, shall be entitled to elect the smallest number of directors
which will constitute a majority of the authorized number of directors, and the
holders of the Common and such other of this corporation's stock as shall then
have the right to vote shall be entitled to elect the remaining members of the
Board. At such time as (i) all dividends accumulated on the outstanding
Preferred have been paid or declared and set part for payment. (ii) this
corporation has set aside in the Sinking Fund and paid to holders of the
Preferred all monies required by Section 5 hereof to be set aside and paid, and
(iii) all other Majority Voting Right Events which gave rise to the exercise of
voting rights provided for in this Section 5 shall have been cured and no other
Majority Voting Right Event shall have occurred and remained uncured, the rights
of the holders of the Preferred to vote as provided in this Section 6 shall
erase, subject to renewal from time to time upon the same terms and conditions.
At any time after the voting power to elect a majority of the Board shall
have become vested in the holders of the Preferred as provided in this Section
6, the President or any Vice-President of this corporation may, and upon the
request of the record holders of at least ten per cent of the Preferred then
outstanding, addressed to him at the principal office of this corporation shall,
call a special meeting of the holders of the Preferred, the Common and such
other of this corporation's stock as shall then have the right to vote for the
election of directors, to be held at the place and upon the notice provided in
the by-laws of this corporation for the holding of meetings. If such meeting
shall not be so called within ten days after personal service of the request, or
within fifteen days after mailing of the same by registered mail within the
United States of America, then the record holders of at least ten per cent of
the Preferred then outstanding may designate in writing one of their number to
call such meeting, and the person so designated may call such meeting at the
place and upon the notice above provided, and for that purpose shall have access
to the stock books of this corporation. At any meeting so called or at any
annual meeting held while the holders of the Preferred have the voting power to
elect a majority of the Board, the holders of a majority of the then outstanding
Preferred present in person or by proxy, shall be sufficient to constitute a
quorum for the election of directors the holders of Preferred are entitled to
elect, and the persons so elected as directors, together with
9
such persons, if any, as may be elected as directors by the holders of the
Common shall constitute the duly elected directors of this corporation. In the
event the holders of the Common fail to elect the number of authorized directors
which they are entitled to elect at such meeting, such director or directors
shall be elected by a majority vote of the holders of the Preferred. In the
event that a director elected by the holders of Preferred shall die or otherwise
be unable to serve, a new director or directors may be appointed by the
directors elected by the holders of the Preferred who had elected the director
who has died or is otherwise unable to serve.
When the rights of the holders of Preferred to vote as provided in this
Section 6 have ceased, as hereinabove provided, the term of office of the
persons elected by them as directors shall terminate and the vacancies shall be
filled by the remaining directors then in office.
SECTION 7. Conversion.
(A) CONVERSION PRIVILEGE. The Preferred, valued for purposes of this
Section 7 at $1.40 per share, shall at the option of the holder thereof be
convertible into shares of Common at the price of $1.40 per share of Common
subject to adjustment pursuant to the provisions of this Section 7. An
amount equal to all accrued and unpaid dividends due on the Preferred being
converted shall be paid in cash to the date of conversion whether earned,
legally available therefor or declared or not.
(B) METHOD OF EXERCISE; PAYMENT, ISSUANCE OF NEW CERTIFICATE; TRANSFER
AND EXCHANGE. The conversion right granted hereby may be exercised by the
holder of any share of the Preferred, in whole or in part, by the surrender
of the certificate representing such share at the principal office of the
Company in Los Angeles, California, (or at such other place as the Company
may designate in writing sent to the holder at his address shown on the
books of the Company). In the event of any exercise of such right,
certificates for the shares of Common so purchased shall be delivered to
such holder within a reasonable time, not exceeding twenty days after
conversion, and unless the certificate representing the shares of Preferred
has been fully converted, a new certificate, representing the shares of
Preferred not so converted, shall also be issued to the holder within said
time.
(C) STOCK FULLY PAID; RESERVATION OF SHARES. This Corporation
covenants that all shares which may be issued upon the exercise of the
conversion rights will, upon issuance, be fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue thereof.
This corporation further covenants and agrees that during the period within
which the conversion rights may be exercised, this corporation will at all
times have authorized, and reserved for the purpose of the issue upon
exercise of such conversion rights, a sufficient number of shares of Common
to provide for the exercise of such conversion rights. Should the
Conversion Price be at any time less than the par value of the Common, the
Company also covenants to cause to be taken such action (whether by
lowering the par value of the Common, the conversion of the Common from par
value to no par value, or otherwise) as will permit the exercise of
conversion rights, without any additional payment by the holders of the
Preferred (other than payment of applicable transfer taxes, if any), and
the issuance of the Common, which Common, upon issuance, will be fully paid
and nonassessable.
10
(D) ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number and
kind of securities purchasable upon the exercise of the conversion rights
and the Conversion Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
(i) Reclassification. Consolidation or Merger. In case any
reclassification or change of outstanding securities issuable upon
conversion of the Preferred (other than a change in par value, or from
par value to no par value, or from no par value to par value or as a
result of a subdivision or combination), or in case of any
consolidation or merger of this corporation with or into another
corporation (other than a merger with another corporation in which
this corporation is a continuing corporation and which does not result
in any reclassification or change--other than a change in par value,
or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination--of outstanding
securities issuable upon conversion of the Preferred), or in case of
any sale or transfer to another corporation of the property of this
corporation as an entirety or substantially as an entirety (other than
a sale for cash), this corporation, or such successor or purchasing
corporation, as the case may be, shall, without payment of any
additional consideration therefor, execute duly authorized
certificates for preferred stock, providing that the holder of the
Preferred shall have the right to convert such new Preferred and
procure upon such conversion in lieu of each share of Common
theretofore issuable upon conversion of the Preferred the kind and
amount of shares of stock, other securities, money and property
receivable upon such classification, change, consolidation, merger,
sale or transfer by a holder of one share of Common issuable upon
conversion of the Preferred had the Preferred been converted
immediately prior to such classification, change, consolidation,
merger, sale or transfer. Such new Preferred shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this subsection D. The provisions
of this subsection D(i) shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and
transfers.
(ii) Subdivision or Combination of Shares. If this corporation at
any time while the Preferred remains outstanding and unexpired, shall
subdivide or combine its Common, the Conversion Price shall be
proportionately reduced, in case of subdivision of shares, as at the
effective date of such subdivision, or if this corporation shall take
a record of holders of its Common for the purpose of so subdividing,
as at such record date, whichever is earlier, or shall be
proportionately increased, in the case of combination of shares, as at
the effective date of such combination, or, if this corporation shall
take a record of holders of its Common for the purpose of so
combining, as at such record date, whichever is earlier.
(iii) Certain Dividends and Distributions. If this corporation at
any time while the Preferred is outstanding and unexpired shall:
11
(a) Stock Dividends. Pay a dividend payable in, or make
other distribution of, Common, then the Conversion Price shall be
adjusted. as at the date this corporation shall take a record of
the holders of Common, for the purpose of receiving such dividend
or other distribution (or if no such record is taken, as at the
date of such payment or other distribution), to that price
determined by multiplying the Conversion Price in effect
immediately prior to such record date (or if no such record is
taken. then immediately prior to such payment or other
distribution) by a fraction the numerator of which shall be the
total number of shares of Common outstanding immediately prior to
such dividend or distribution, and the denominator of which shall
be the total number of shares of Common outstanding immediately
after such dividend or distribution (plus in the event that this
corporation paid cash for fractional shares, the number of
additional shares which would have been outstanding had this
corporation issued fractional shires in connection with said
dividend); or
(b) Liquidating Dividends, etc. Make a distribution of its
assets to the holders of Common as a dividend in liquidation or
partial liquidation or by way of return of capital or other than
as a dividend payable out of earnings or surplus legally
available for dividends under the laws of the State of
California, the holder of the Preferred shall, upon its
conversion, be entitled to receive, in addition to the number of
shares of Common receivable thereupon, and without payment of any
additional consideration therefor, a sum equal to the amount of
such assets as would have been payable to such holder as owner of
that number of shares of Common of this corporation receivable by
conversion of the Preferred had such holder been the holder of
record of such Common on the record date for such distribution:
and an appropriate provision therefor shall be made a part of any
such distribution.
(iv) Issuance of Additional Shares of Common. If this corporation
at any time while the Preferred remains outstanding and unexpired
shall issue any Additional Shares of Common (otherwise than as
provided in the foregoing subsections (i) through (iii) above) at a
price per share less than the Current Market Price or less than the
Conversion Price then in effect, or without consideration, then the
Conversion Price upon each such issuance shall be adjusted to that
price determined by multiplying the Conversion Price by a fraction:
(a) If issued for a price per share less than the Current
Market Price:
(1) the numerator of which shall be the number of
shares of Common outstanding immediately prior to the
issuance of such Additional Shares of Common plus the number
of shares of Common which the aggregate consideration for
the total number of such Additional Shares of Common so
issued would purchase at the Current Market Price, and
12
(2) the denominator of which shall be the number of
shares of Common outstanding immediately prior to the
issuance of such Additional Shares of Common plus the number
of such Additional Shares of Common so issued.
(a) If issued for a consideration per share less than the
Conversion Price:
(1) the numerator of which shall be the number of
shares of Common outstanding immediately prior to the
issuance of such Additional Shares of Common plus the number
of shares of Common which the aggregate consideration for
the total number of such Additional Shares of Common so
issued would purchase at the Conversion Price, and
(2) the denominator of which shall be the number of
shares of Common outstanding immediately prior to the
issuance of such Additional Shares of Common plus the number
of such Additional Shares of Common so issued.
If such Additional Shares of Common shall be issued at a price per share
less than both the Conversion Price and the Current Market Price, the
Conversion Price shall be adjusted in the manner provided in subparagraphs
(a) or (b) of this subsection D(iv) which will result in the greater
reduction in the amount of the Conversion Price. The provisions of this
subsection D(iv) shall not apply under any of the circumstances for which
an adjustment is provided in subsections D(i), D(ii) or D(iii). No
adjustment of the Conversion Price shall be made under this subsection
D(iv) upon the issuance of any Additional Shares of Common which are issued
pursuant to the exercise of any warrants, options or other subscription or
purchase rights or pursuant to the exercise of any conversion or exchange
rights in any Convertible Securities if any such adjustments shall
previously have been made upon the issuance of any such warrants, options
or other rights or upon the issuance of any Convertible Securities (or upon
the issuance of any warrants, options or any rights therefor) pursuant to
subsections D(v) or D(vi) hereof. For the purposes of this subsection, the
date as of which the Current Market Price shall be computed shall be the
earlier of the date on which this corporation shall enter into a firm
contract for the issuance of such Additional Shares of Common or the date
of actual issuance of Additional Shares of Common.
(v) Issuance of Warrants, Options or Other Rights. In case this
corporation shall issue any warrants, options or other rights to
subscribe for or purchase any Additional Shares of Common or any
Convertible Securities and the price per share for which Additional
Shares of Common may at any time thereafter be issuable pursuant to
such warrants, options or other rights or pursuant to the terms of
such Convertible Securities shall be less than the Current Market
Price or less than the Conversion Price per share of Common, then such
Conversion Price shall he adjusted as provided in subsection D(iv)
hereof on the basis that the maximum number of Additional Shares of
Common issuable pursuant to all such warrants, options or other rights
or necessary to effect the
13
conversion or exchange of all such Convertible Securities shall be
deemed to have been issued as of the date for the determination of
tine Current Market Price per share of Common as hereinafter provided
and the aggregate consideration for such maximum number of Additional
Shares of Common shall be deemed to be the minimum consideration
received and receivable by this corporation for the issuance of such
Additional Shares of Common pursuant to such warrants, options or
other rights or pursuant to the terms of such Convertible Securities.
For the purposes of this subsection, the date as of which the Current
Market Price of Common shall be computed shall be the earlier of the
date on which this corporation shall enter into a firm contract for
the issuance of such warrants, options or other rights, or the date of
actual issuance of such warrants, options or other rights.
(vi) Issuance of Convertible Securities. In case this corporation
shall issue any Convertible Securities and the consideration per share
for which Additional Shares of Common may at any time thereafter be
issuable pursuant to the terms of such Convertible Securities shall be
less than the Current Market Price or the Conversion. Price then such
Conversion Price shall be adjusted as provided in subsection D(iv)
hereof on the basis that the maximum number of Additional Shares of
Common necessary to effect the conversion or exchange of all such
Convertible Securities shall be deemed to have been issued as of the
date for the determination of the Current Market Price as hereinafter
provided, and the aggregate consideration for such maximum number of
Additional Shares of Common shall be deemed to be the minimum sum of
the consideration received and the consideration receivable by this
corporation for the issuance of such Additional Shares of Common
pursuant to the terms of such Convertible Securities. For the purposes
of this subsection, the date as of which the Current Market Price of
Common shall be computed shall be the earlier of the date on which
this corporation shall enter into a firm contract for the issuance of
such Convertible Securities., or the date of actual issuance of such
Convertible Securities. No adjustment of the Conversion Price shall be
made under this subsection upon the issuance of any Convertible
Securities which are issued pursuant to the exercise of any warrants
or other subscription or purchase rights therefor, if any such
adjustment shall previously have been made upon the issuance of such
warrants or other rights pursuant to subsection D(iv) hereof.
(vii) Adjustment of Number of Shares. Upon each adjustment in the
Conversion Price pursuant to any provision of this subsection D, the
number of shares of Common purchasable hereunder shall be adjusted, to
the nearest one hundredth of a whole share, to the product obtained by
multiplying such number of shares purchasable immediately prior to
such adjustment in the Conversion Price by a fraction, the numerator
of which shall be the Conversion Price immediately prior to such
adjustment and the denominator of which shall be the Conversion Price
immediately thereafter.
14
(viii) Other Provisions Applicable to Adjustments Under this
Subsection. The following provisions shall be applicable to the making
of adjustments in the Conversion Price hereinabove provided in this
subsection:
(a) Computation of Consideration. To the extent that any
Additional Shares of Common or any Convertible Securities or any
warrants, options or other rights to subscribe for or purchase
any Additional Shares of Common or any Convertible Securities
shall be issued for a cash consideration, the consideration
received by this corporation therefor shall be deemed to he the
amount of the cash received by this corporation therefor, or, if
such Additional Shares of Common or Convertible Securities are
offered by this corporation for subscription, the subscription
price, or, if such Additional Shares of Common or Convertible
Securities are sold to underwriters or dealers for public
offering without a subscription offering, the initial public
offering price, in any such case excluding any amounts paid or
receivable for accrued interest or accrued dividends and without
deduction of any compensation, discounts or expenses paid or
incurred by this corporation for and in the underwriting of, or
otherwise in connection with, the issue thereof. To the extent
that such issuance shall be for a consideration other than cash,
then, except as herein otherwise expressly provided, the amount
of such consideration shall he deemed to be the fair value of
such consideration at the time of such issuance as determined in
good faith by the Board. The consideration for any Additional
Shares of Common issuable pursuant to any warrants, options or
other rights to subscribe for or purchase the same shall be the
consideration received by this corporation for issuing such
warrants, options or other rights, plus the additional
consideration payable to this corporation upon the exercise of
such warrants, options or other rights. The consideration for any
Additional Shares of Common issuable pursuant to the terms of any
Convertible Securities shall be the consideration received by
this corporation for issuing any warrants, options or other
rights to subscribe for or purchase such Convertible Securities,
plus the consideration paid or payable to this corporation in
respect of the subscription for or purchase of such Convertible
Securities, plus the additional consideration, if any, payable to
this Corporation upon the exercise of the right of conversion or
exchange in such Convertible Securities. In case of the issuance
at any time of any Additional Shares of Common or Convertible
Securities in payment or satisfaction of any dividend upon any
class of stock other than Common, this corporation shall be
deemed to have received for such Additional Shares of Common or
Convertible Securities a consideration equal to the amount of
such dividend so paid or satisfied;
(b) Readjustment of Conversion Price. Upon the expiration of
the right to convert or exchange any Convertible Securities, or
upon the expiration of any rights, options or warrants, the
issuance of which Convertible Securities, rights, options or
warrants effected an adjustment
15
in the Conversion Price, if any such Convertible Securities shall
not have been converted or exchanged, or if any such rights,
options or warrants shall not have been exercised, the number of
shares of Common deemed to be issued and outstanding by reason of
the fact that they were issuable upon conversion or exchange of
any such Convertible Securities or upon exercise of any such
rights, options or warrants shall no longer be computed as set
forth above, and the Conversion Price shall forthwith be
readjusted and thereafter be the price which it would have been
(but reflecting any other adjustments in the Conversion Price
made pursuant to the provisions of this subsection D after the
issuance of such Convertible Securities, rights, options or
warrants) had the adjustment of the Conversion Price made upon
the issuance or sale of such Convertible Securities or issuance
of rights, options or warrants been made on the basis of the
issuance only of the number of Additional Shares of Common
actually issued upon conversion or exchange of such Convertible
Securities or upon the exercise of such rights, options or
warrants, and thereupon only the number of Additional Shares of
Common actually so issued shall be deemed to have been issued and
only the consideration actually received by this corporation
(computed as in paragraph (a) above of this subsection D(viii)
shall be deemed to have been received by this corporation; and
(c) Treasury Shares. The number of shares of Common at any
time outstanding shall not include any shares thereof then
directly or indirectly owned or held by or for the account of
this corporation or any of its Subsidiaries.
(ix) Other Action Affecting Common. In case after the date hereof
this corporation shall take any action affecting its Common, other
than an action described in any of the foregoing subsections D(i)
through D(vi) here inclusive, which in the opinion of the Board would
have a materially adverse effect upon the rights of the holder of the
Preferred, the Conversion Price shall be adjusted in such manner and
at such time as the Board may in good faith determine to be equitable
in the circumstances.
(E) NOTICE OF ADJUSTMENTS, ETC. Whenever any Conversion Price shall be
adjusted pursuant to subsection D hereof, this corporation shall promptly
make a certificate signed by its President or a Vice President and by its
Treasurer or Assistant Treasurer or Secretary or Assistant Secretary,
setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated (including a description of the basis on which the Board made
any determination hereunder), and the Conversion Price after giving effect
to such adjustment, and shall promptly cause copies of such certificate to
be mailed (by first class mail postage prepaid) to the holder of the
Preferred. This corporation shall promptly give notice (by first class mail
postage prepaid) to the holder of the Preferred of any commitment to make a
sale or transfer to another corporation of the property of this
16
corporation as an entirety or substantially as an entirety, for cash, and
shall give such notice not less than 30 days in advance of the transaction
of sale or transfer.
(F) FRACTIONAL SHARES. No fractional shares of Common will be used in
connection with any subscription hereunder but in lieu of such fractional
shares, this corporation shall make a cash payment therefor equal in amount
to the product of the applicable fraction multiplied by the Conversion
Price then in effect.
SECTION 8. Covenants. So long as any Preferred shall be outstanding, this
corporation shall not:
(A) permit Consolidated Excess of Current Assets over Current
Liabilities to be an amount less than $250,000;
(B) amend or repeal any provision of, or add any provision to, this
corporation's articles of incorporation or by-laws if such action would
alter or change the preferences, rights, privileges or powers (including
the par value) of, or the restrictions provided for the benefit of, any
Preferred, without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred;
(C) authorize, create or issue shares of any class of stock having any
preference or priority as to dividends or assets superior to or on a parity
with any such preference or priority of the Preferred, or authorize, create
or issue shares of stock of any class or any bonds, debentures, notes or
other obligations convertible into or exchangeable for, or having option
rights to purchase, any shares of stock of this corporation having any such
preference, without the prior approval of the holders of not less than 66
?% of the outstanding shares of the Preferred;
(D) reclassify any junior Stock into shares having any preference or
priority as to dividends or assets superior to or on a parity with any such
preference or priority of the Preferred, without the prior approval of the
holders of not less than 66 ?% of the outstanding shares of the Preferred;
(E) incur any Indebtedness or become lessee under any lease, or permit
any Subsidiary so to do, if the holder of such Indebtedness or the lessor
under such lease shall be entitled by any conversion privilege, warrant,
option or similar right issued or granted in connection with the issuance
of such Indebtedness or the making of such lease by whatever means
evidenced, to obtain any stock or other securities of this corporation or
any of its Subsidiaries, without the prior approval of the holders of not
less than 66 ?% of the outstanding shares of the Preferred;
(F) merge or consolidate with any other corporation or sell, lease,
transfer or otherwise dispose of all or a substantial part of its assets to
any person, firm or corporation, or purchase all or a substantial part of
the assets of any Person or permit any Subsidiary so to do (except that any
Subsidiary may merge or consolidate with any other Subsidiary), or
reclassify or in any manner change the Common, without the prior approval
of the holders of not less than 66 ?% of the outstanding shares of the
Preferred;
17
(G) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, take any action prior to March
31, 1974 which would cause an adjustment to be made in the number of shares
issuable upon exercise of the Warrant or upon conversion of the Preferred;
(H) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, issue or agree to issue any
Common or convertible securities or warrants or other rights to purchase
shares of Common or convertible securities other than shares of Common, and
securities convertible into shares of Common, which upon issuance shall not
be Additional Shares of Common;
(I) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, pay or declare any dividend on
any class of stock of this corporation other than on the Preferred, or
apply any of its assets to the redemption, retirement, purchase or other
acquisition, directly or indirectly, through Subsidiaries or otherwise, of
any class of stock of this corporation other than the Preferred unless,
after giving effect thereto the aggregate amount of all such declarations,
payments, redemptions, retirements, purchases and other acquisitions after
March 10, 1971 does not exceed an amount equal to 50% of Net Income (after
deducting therefrom all dividends and redemption premiums theretofore paid
in respect of the Preferred and all payments of taxes based on income, or
provision or reserve therefor) earned by this corporation after March 31,
1971;
(J) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, pay or declare any dividend on
any class of stock of this corporation other than on the Preferred, or
apply any of its assets to the redemption, retirement, purchase or other
acquisition, directly or indirectly through Subsidiaries or otherwise, of
any class of stock of this corporation other than the Preferred, at any
time that any dividend or Sinking Fund Payment due on the Preferred has not
been paid or when the holders of the Preferred are entitled, pursuant to
the provisions of this Article Fifth, to vote for the election of
directors;
(K) create, incur, renew, extend or refund any Indebtedness of this
corporation or of any Subsidiary, or permit any Subsidiary to do so, if
after giving effect thereto the aggregate amount of all Indebtedness of
this corporation and its Subsidiaries shall exceed an amount equal to two
times the amount of Consolidated Junior Net Tangible Assets;
(L) lend or advance to, purchase or guarantee the obligations of, or
in any other manner invest or engage in or permit any Subsidiary so to
lend, advance, purchase, guarantee or invest or engage in any franchising
business, any business of oil exploration, oil production or oil
transportation, nor in any business of producing, selling, or marketing any
product for sale to consumers at a price less than $15 or any product or
line of products for which advertising and promotion expenses, in the
aggregate, necessarily or usually exceed 20% of net sales, without the
prior approval of the holders of not less than 66 ?% of the outstanding
shares of the Preferred. Notwithstanding the foregoing, this corporation
and its Subsidiaries may invest in evidences of Indebtedness issued by
entities (including governmental bodies) engaged in a business other than
that
18
engaged in by this corporation, if such evidences of Indebtedness are
acquired in the ordinary course of business as a result of sales to such
entities, or if such evidences of Indebtedness are issued by entities rated
as "Prime" by financial institutions and are for a term not in excess of
180 days;
(M) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred purchase, retire or otherwise
acquire, pursuant to the provision of any mandatory retirement fund or
otherwise, any shares of the Preferred, except the redemption of Preferred
as provided in Section 5 hereof, unless full cumulative dividends have been
fully paid or declared and set apart for payment on the Preferred and this
corporation shall have complied with the requirements of Section 5 hereof;
(N) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, enter into any agreement,
indenture or other instrument which, by its terms, prevents this
corporation from making, or directly or indirectly restricts its right to
make, the payments of the dividends on shares of the Preferred or the
payments into the Sinking Fund, or the redemption of the Preferred
therefrom, or permit any Subsidiary to enter into any agreement, indenture
or other instrument which, by its terms, prevents such Subsidiary from
making, or restricts its right to make payments of dividends on the stock
of such Subsidiary owned by this corporation;
(O) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, take any action immediately
after which and as a reasonably foreseeable result of which this
corporation is restricted under the terms of any agreement to which this
corporation is then a party from making payments of dividends on the
Preferred or payments into the Sinking Fund for the Preferred, or from
redeeming the Preferred therefrom;
(P) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, make or retain any investment
in any Subsidiary unless all of the capital stock of such Subsidiary (other
than directors' qualifying shares) shall be owned and held by this
corporation; or
(Q) without the prior approval of the holders of not less than 66 ?%
of the outstanding shares of the Preferred, lend or in any manner advance
funds (other than advances of $5,000 or less per employee for the purpose
of travel), or permit any Subsidiary so to do, to directors, officers or
employees of this corporation or any Subsidiary in an amount at any time
exceeding, in the aggregate, $25,000.
SECTION 9. Voting Rights of Common. Subject to the provisions hereof with
regard to the voting rights of the holder of any share of Preferred and to the
laws of California, the holders of the Common shall possess all the voting power
for the election of this corporation's directors and for all other purposes."
1. That the shareholders have adopted said amendment by resolution at a
meeting held at Los Angeles, California, on March 19, 1971. That the wording of
the amended article, as
19
set forth in the shareholders' resolution, is the same as that set forth in the
directors' resolution set forth in Paragraph 2 above.
2. That the number of shares of Common of this corporation voting in favor
of such Amendment of the Articles of Incorporation is 519,435.
3. That the total number of shares of the corporation entitled to vote upon
or consent to the adoption of such Amendment of the Articles of Incorporation is
650,000 shares of Common.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment on this 24 day of March, 1971.
/s/ Albert J. Centofante
Albert J. Centofante
Lee Sobel
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate are true and correct to their knowledge.
Executed at Los Angeles, California this 24 day of March, 1971.
/s/ Albert J. Centofante
Albert J. Centofante, President
Lee Sobel, Secretary
20
Aggregate par value chg from $50,000 to $200,000
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ASTROPHYSICS RESEARCH CORPORATION
The undersigned, Alfred Reifman and Richard J. Riordan, hereby certify that
they are now, and at all times herein mentioned have been, the President and the
Secretary, respectively, of Astrophysics Research Corporation, a California
corporation, and further certify that:
1. The following resolution was adopted by the Board of Directors of
said corporation; said action was taken by the unanimous written consent of
the Board of Directors without a meeting and the By-Laws of said
corporation authorize the directors to so act.
RESOLVED, that Article FIFTH of the Articles of Incorporation of this
corporation be amended to read in full as follows:
"FIFTH: This corporation shall have authority to issue only one
class of shares of stock, to be designated common stock; the total
number of said shares, as the same are constituted on the effective
date of this amendment, shall be Two Million (2,000,000); the
aggregate par value of all of said shares shall be Two Hundred
Thousand Dollars ($200,000.00); and the par value of each of said
shares shall be ten cents ($.10)."
2. Said amendment was adopted and approved by the written consent of
the shareholders. The wording of amended Article FIFTH, as set forth in the
shareholder's written consent, is the same as that set forth in the
foregoing resolution of the Board of Directors.
3. The number of shares of said corporation consenting to such
amendment was 500,000 shares.
4. The number of shares of said corporation entitled to vote on or
consent to the adoption of such amendment is 500,000 shares.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment of Articles of Incorporation on October 25 1968 at Los Angeles,
California.
/s/ / Alfred Reifman
-------------------------------
Alfred Reifman, President
/s/ Richard J. Riordan
-------------------------------
Richard J. Riordan, Secretary
DECLARATION UNDER PENALTY OF PERJURY
The undersigned, Alfred Reifman and Richard J. Riordan, the President and
Secretary, respectively, of the corporation named in the foregoing Certificate
of Amendment of Articles of Incorporation, hereby declare under penalty of
perjury that said Certificate is true and correct of their own knowledge.
IN WITNESS WHEREOF, the undersigned have executed this Declaration Under
Penalty of Perjury on October 25, 1968 at Los Angles, California.
/s/ / Alfred Reifman
--------------------------------
Alfred Reifman
/s/ Richard J. Riordan
--------------------------------
Richard J. Riordan
2
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
ASTROPHYSICS RESEARCH CORPORATION
The undersigned, Albert J. Centofante and Richard J. Riordan, hereby
certify that they are now, and at all times herein mentioned have been, the
Executive Vice President and Secretary, respectively, of Astrophysics Research
Corporation, a California corporation, and further certify that:
1. At a special meeting of the Board of Directors of the corporation duly
held on the 26th day of June, 1969, at 9:30 a.m. P.D.T. at 445 South Figueroa
Street, 30th Floor, Los Angeles, California, the following resolution was
adopted:
RESOLVED, that Article FOURTH (a) of the Articles of Incorporation be
amended to read as follows:
"FOURTH: (a) The number of directors of the corporation shall be
not less than five (5) nor more than eight (8), the exact number of
which shall be fixed by a By-Law adopted by the Board of Directors or
by the shareholders."
2. At a regular shareholders meeting duly held on the 19th day of August,
1969, at 10:00 o'clock a.m. P.D.T. at the International Hotel, 6211 West Century
Boulevard, Los Angeles, California, the foregoing amendment of the Articles of
Incorporation was approved by a resolution of the shareholders identical in form
to the Directors' resolution set forth above. The total number of shares of the
corporation entitled to vote on the adoption of the foregoing amendment is
600,000 shares. The total number of shares of the corporation voting in favor of
the foregoing amendment was 600,000 shares.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment of Articles of Incorporation on June 30, 1970, at Los Angeles,
California.
/s/ Albert J.. Centofante
-------------------------------------
Albert J. Centofante
Executive Vice President
/s/ Richard J. Riordan
-------------------------------------
Richard J. Riordan, Secretary
3
DECLARATION UNDER PENALTY OF PERJURY
The undersigned, Albert J. Centofante and Richard J. Riordan, Executive
Vice President and Secretary, respectively, of the corporation named in the
foregoing Certificate of Amendment of Articles of Incorporation, hereby declare
under penalty of perjury that said Certificate is true and correct of their own
knowledge.
IN WITNESS WHEREOF, the undersigned have executed this Declaration Under
Penalty of Perjury on June 30, 1970 at Los Angeles, California.
/s/ Albert J.. Centofante
--------------------------------
Albert J. Centofante
/s/ Richard J. Riordan
--------------------------------
Richard J. Riordan
4
Cap. structure chg. from $25,000 to $50,000.
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
ASTROPHYSICS RESEARCH CORPORATION
The undersigned, Alfred Reifman, and Richard J. Riordan, hereby certify
that they now are, and at all times herein mentioned have been, the President
and Secretary, respectively, of Astrophysics Research Corporation, a California
corporation, and further certify that:
5. At a special meeting of the Board of Directors of said corporation held
at its principal office for the transaction of business, 10889 Wilshire
Boulevard, Los Angeles, California, at 2:00 o'clock P.M. on the 30th day of
July, 1965, the following resolutions were duly adopted:
RESOLVED, that Article FIFTH of the Articles of Incorporation of this
corporation be amended to read in full as follows:
"FIFTH: This corporation shall have authority to issue only one
class of shares of stock, to be designated common stock; the total
number of said shares shall be Five Hundred Thousand (500,000); the
aggregate par value of all of said shares shall be Fifty Thousand
Dollars ($50,000); and the par value of each of said shares shall be
ten cents ($.10). Upon the filing with the Secretary of State of the
State of California of the Certificate of Amendment by which this
Article FIFTH is amended to read as herein set forth, each issued and
outstanding share of capital stock, par value $1 per share, of this
corporation shall be subdivided, split and changed into and shall
become ten (10) shares of common stock par value $.10 per share, of
this corporation, and the holder of each such share of capital stock,
par value $1 per share, in lieu thereof shall immediately become the
holder of ten (10) shares of common stock, par value $.10 per share,
of this corporation."
RESOLVED FURTHER, that the President or Vice President and the
Secretary or Assistant Secretary of this corporation be and they
hereby are authorized and directed to procure the adoption and
approval of the foregoing amendment by the written consent of
shareholders of this corporation holding at
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least a majority of the voting power, and thereafter to sign and
verify by their oath and file a certificate in the form and manner
required by Section 3672 of the California Corporations Code, and in
general to do any and all things necessary to effect said amendment in
accordance with Section 3672.
6. Said amendment was adopted and approved by the written consent of the
shareholders, and a copy of the form of such written consent is as follows:
"ASTROPHYSICS RESEARCH CORPORATION
Written Consent of Shareholders to
Amendment of Articles of Incorporation
The undersigned shareholders of Astrophysics Research Corporation, a
California corporation, do hereby approve, adopt and consent to the amendment of
the Articles of Incorporation of said corporation as set forth in the following
resolution adopted by the Board of Directors of said corporation at a special
meeting duly held at 2:00 o'clock P.M. on July 30, 1965, at 10889 Wilshire
Boulevard, Los Angeles, California:
[At this point in said form of written consent there
appeared a complete copy of the resolution of the
Board of Directors first set forth under Paragraph 1
above.]
IN WITNESS WHEREOF, each of the undersigned stockholders has hereunto
signed his name and, following his name, the date of signing and the number of
shares of said corporation held by him of record on said date entitled to vote
upon amendments of said Articles of Incorporation.
Name Date Number of Shares"
---- ---- ----------------
7. The number of shares of said corporation consenting to such amendment
was 25,000 shares.
8. The number of shares of said corporation entitled to vote on or consent
to the adoption of such amendment is 25,000 shares.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment of Articles of Incorporation this 14th day of September, 1965.
/s/ / Alfred Reifman
----------------------------------------
Alfred Reifman, President
/s/ Richard J. Riordan
----------------------------------------
Richard J. Riordan, Secretary
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DECLARATION UNDER PENALTY OF PERJURY
The undersigned, Alfred Reifman and Richard J. Riordan, the President
and Secretary, respectively, of the corporation named in the foregoing
Certificate of Amendment of Articles of Incorporation, each do hereby
declare under penalty of perjury that said Certificate is true and correct
of their own knowledge.
EXECUTED this 14th day o(pound) September, 1965, at Los Angeles,
California.
/s/ / Alfred Reifman
----------------------------
Alfred Reifman
/s/ Richard J. Riordan
----------------------------
Richard J. Riordan
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ARTICLES OF INCORPORATION
OF
ASTROPHYSICS RESEARCH CORPORATION
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have this day voluntarily associated ourselves
together for the purpose of forming a corporation under the laws of the State of
California AND WE HEREBY CERTIFY:
FIRST: The name of this corporation is: ASTROPHYSICS RESEARCH CORPORATION.
SECOND: The corporation's purposes are:
(a) Primarily and initially to engage in the business of conducting
studies of detailed scientific problems connected with defense and space
efforts.
(b) To manufacture, buy, sell, assemble, distribute, and otherwise
acquire, or to own, hold, use, sell, assign, transfer, exchange, lease,
license or otherwise dispose of, and to invest, trade, deal in and with
goods, wares, merchandise, building materials, supplies, and all other
personal property of every class and description.
(c) To purchase, acquire, own, hold, use, lease either as lessor or
lessee, rent, sublet, grant, sell, exchange, subdivide, mortgage, deed in
trust, manage, improve, cultivate, develop, maintain, construct, operate,
and generally deal in, any and all real estate, improved or unimproved,
stores, office buildings, dwelling houses, boarding houses, apartment
houses, hotels, business blocks, garages, warehouses, manufacturing plants,
and other buildings of any kind or description, and any and all other
property of every kind or description, real, personal and mixed, and any
interest or right therein, including water and water rights, wheresoever
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situated, either in California, other states of the United States, the
District of Columbia, territories and colonies of the United States and
foreign countries,
(d) To purchase, acquire, take, hold, own, use and enjoy, and to sell,
lease, transfer, pledge, mortgage, convey, grant, assign, or otherwise
dispose of, and generally to invest, trade, deal in and with oil royalties,
mineral rights of all kinds, mineral bearing land and hydrocarbon products
of all kinds, oil, gas and mineral leases, and all rights and interests
therein, and in general products of the earth and deposits, both subsoil
and surface, of every nature and description.
(e) To enter into, make, perform and carry out contracts of every kind
for any lawful purpose without limit as to amount, with any person, firm,
association or corporation, municipality, county, parish, state, territory,
government (foreign or domestic) or other municipal or governmental
subdivision.
(f) To become a partner (either general or limited or both) or joint
venturer, and to enter into agreements of partnership, or joint venture
agreements, with one or more other persons or corporations, for the purpose
of carrying on any business whatsoever which this corporation may deem
proper or convenient in connection with any of the purposes herein set
forth or otherwise, or which may be calculated, directly or indirectly, to
promote the interests of this corporation or to enhance the value of its
property or business.
(g) To acquire, by purchase or otherwise, the goodwill, business,
property rights, franchises and assets of every kind, with or without
undertaking, either wholly or in part, the liabilities of any person, firm,
association or corporation; and to acquire any property or business as a
going concern or otherwise, (a) by purchase of the assets thereof wholly or
in part, (b) by acquisition of the shares of any part thereof, or (c) in
any other manner; and to pay for the
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same in cash or in the shares or bonds or other evidences of indebtedness
of this corporation, or otherwise; to hold, maintain and operate, or in any
manner dispose of the whole or any part of the goodwill, business, rights
and property so acquired, and to conduct in any lawful manner the whole or
any part of the goodwill, business, rights and property so acquired, and to
conduct in any lawful manner the whole or any part of any business so
acquired; and to exercise all the powers necessary or convenient in and
about the management of such business.
(h) To take, purchase, and otherwise acquire, own, hold, use, sell,
assign, transfer, exchange, lease, mortgage, convey in trust, pledge,
hypothecate, grant licenses in respect of and otherwise dispose of letters
patent of the United States or any foreign country, patent rights, licenses
and privileges, inventions, improvements and processes, copyrights,
trademarks and trade names, and government, state, territorial, county and
municipal grants and concessions of every character which this corporation
may deem advantageous in the prosecution of its business or in the
maintenance, operation, development or extension of its properties.
(i) From time to time to apply for, purchase, acquire by assignment,
transfer or otherwise exercise, carry out and enjoy any benefit, right,
privilege, prerogative or power conferred by, acquired under or granted by
any statute, ordinance, order, license, power, authority, franchise,
commission, right or privilege which any government or authority or
governmental agency or corporation or other public body may be empowered to
enact, make or grant; to pay for, aid in, and contribute toward carrying
the same into effect; and to appropriate any of this corporation's shares,
bonds and/or assets to defray the costs, charges and expenses thereof.
(j) To subscribe or cause to be subscribed for, and to take, purchase
and otherwise acquire, own, hold, use, sell, assign, transfer, exchange,
distribute and otherwise
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dispose of, the whole or any part of the shares of the capital stock,
bonds, coupons, mortgages, deeds of trust, debentures, securities,
obligations, evidences of indebtedness, notes, goodwill, rights, assets and
property of any and every kind, or any part thereof, of any other
corporation or corporations, association or associations, firm or firms, or
person or persons, together with shares, rights, units or interests in or
in respect of any trust estate, now or hereafter existing, and whether
created by the laws of the State of California or of any other state,
territory or country; and to operate, manage and control such properties,
or any of them, either in the name of such other corporation or
corporations or in the name of this corporation, and, while the owner of
any of said shares of capital stock, to exercise all of the rights, powers
and privileges of ownership of every kind and description, including the
right to vote thereon, with power to designate some person or persons for
that purpose from time to time, and to the same extent as natural persons
might or should do.
(k) To promote or to aid in any manner, financially or otherwise, any
person, firm, corporation or association of which any shares of stock,
bonds, notes, debentures or other securities or evidences of indebtedness
are held directly or indirectly by this corporation; and for this purpose
to guarantee the contracts, dividends, shares, bonds, debentures, notes and
other obligations of such other persons, firms, corporations or
associations; and to do any other acts or things designed to protect,
preserve, improve or enhance the value of such shares, bonds, notes,
debentures or other securities or evidences of indebtedness.
(l) To borrow and lend money, but nothing herein contained shall be
construed as authorizing the business of banking, or as including the
business purposes of a bank, savings bank or trust company.
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(m) To issue bonds, notes, debentures or other obligations of this
corporation from time to time for any of the objects or purposes of this
corporation, and to secure the same by mortgage, deed of trust, pledge or
otherwise or to issue the same unsecured; to purchase or otherwise acquire
its own bonds, debentures or other evidences of its indebtedness or
obligations; to purchase, hold, sell, and transfer the shares of its own
capital stock to the extent and in the manner provided by the laws of the
State of California as the same are now in force or may be hereafter
amended.
(n) To conduct and carry on, directly or indirectly, research,
development and promotional or experimental activities and to promote or
aid, financially or otherwise, any person, firm or corporation engaged in
such activities, or any of them.
(o) To carry on any business whatsoever, either as principal, agent,
partner or joint venturer, which this corporation may deem proper or
convenient in connection with any of the foregoing purposes or otherwise,
or which may be calculated directly or indirectly to promote the interests
of this corporation or to enhance the value of its property or business;
and to conduct its business in this state, in other states, in the District
of Columbia, in the territories and colonies of the United States, and in
foreign countries.
(p) To have and to exercise all the powers conferred by the laws of
California upon corporations formed under the laws pursuant to and under
which this corporation is formed, as such laws are now in effect or may at
any time hereafter be amended.
The foregoing statement of purposes shall be construed as a statement of
both purposes and powers, and the purposes and powers stated in each clause
shall, except where otherwise expressed, be in nowise limited or restricted by
any reference to or inference from the terms or provisions of any other clause,
but shall be regarded as independent purposes and powers.
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THIRD: The County in the State of California where the principal office for
transaction of the business of this corporation is to be located is Los Angeles
County.
FOURTH: (a) The number of directors of the of the corporation is three.
(b) The names and address of the persons who are appointed to act
as first directors are:
(1) William E. Guthner, Jr.
611 Wilshire Boulevard
Los Angeles 17, California
(2) V.E. Stockfield
611 Wilshire Boulevard
Los Angeles 17, California
(2) J.W. McDonald
611 Wilshire Boulevard
Los Angeles 17, California
FIFTH: The total number of shares which the corporation is authorized to
issue is Twenty-Five Thousand (25,000) shares. The aggregate par value of said
shares is Twenty-five Thousand Dollars ($25,000.00) and the par value of each
share is One Dollar ($1.00). No distinction shall exist between the shares of
the corporation or the holders thereof.
IN WITNESS WHEREOF, for the purpose of forming this corporation under the
laws of the State of California, we, the undersigned, who are the incorporators
of this corporation and the persons named hereinabove as the first directors of
this corporation, have executed these Articles of Incorporation this 7th day of
May, 1962.
/s/ William E. Guthner, Jr.
--------------------------------
William E. Guthner, Jr.
/s/ V.E. Stockfield
--------------------------------
V.E. Stockfield
/s/ J.W. McDonald
--------------------------------
J.W. McDonald
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STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 7th day of May, 1962, before me, the undersigned, a Notary Public
in and for said County and State, residing therein, duly commissioned and sworn,
personally appeared WILLIAM E. GUTHNER, JR., V.E. STOCKFIELD and J.W. McDONALD,
known to me to be the persons whose names are subscribed to the foregoing
Articles of Incorporation, and acknowledged to me that they executed the same.
/s/ Hattie R. Michalis
----------------------------------------
Notary Public in and for said
County and State
HATTIE R. MICHALIS
MY COMMISSION EXPIRES JUNE 12, 1962
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