Exhibit 3.1
FEDERAL IDENTIFICATION
NO. 04-1864170
- ------------- THE COMMONWEALTH OF MASSACHUSETTS
Examiner WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
RESTATED ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B, SECTION 74)
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Name
Approved
We, DANIEL DALLEMOLLE, President, and, M. FRANCES DURDEN, *Clerk,
of ENESCO GROUP, INC.
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(Exact name of corporation)
C/O PRINCE, LOBEL, GLOVSKY & TYE, LLP
located at 585 COMMERCIAL STREET, BOSTON, MA 02109
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(Street address of corporation in Massachusetts)
do hereby certify that the following Restatement of the Articles of
Organization was duly adopted at a meeting held on JANUARY 16, 2002
by a vote of the directors:
ARTICLE I
The name of the corporation is:
ENESCO GROUP, INC.
ARTICLE II
The purpose of the corporation is to engage in the following
business activity(ies):
TO MANUFACTURE, PROCESS, ASSEMBLE, WAREHOUSE, BUY, SELL,
DISTRIBUTE AND OTHERWISE ENGAGE IN AND CARRY ON THE BUSINESS OF
MARKETING GIFTWARE AND COLLECTIBLE PRODUCTS AND OTHER ITEMS,
MATERIALS, ARTICLES, GOODS AND MERCHANDISE AND OTHERWISE DEALING IN
REAL, PERSONAL AND INTELLECTUAL OR INDUSTRIAL PROPERTY OF ALL KINDS
AND DESCRIPTIONS; TO EXERCISE ALL OF THE POWERS CONFERRED UPON
BUSINESS CORPORATIONS BY, AND FROM TIME TO TIME PERMITTED TO BE
EXERCISED BY BUSINESS CORPORATIONS UNDER, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS; AND TO ENGAGE IN AND CARRY ON ANY
OTHER LAWFUL BUSINESS OR TRANSACTION WHICH MAY NOW OR HEREAFTER BE
PERMITTED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS TO BE
CONDUCTED, WHETHER IN THAT COMMONWEALTH OR ELSEWHERE, BY A BUSINESS
CORPORATION ORGANIZED UNDER CHAPTER 156B OF THE MASSACHUSETTS
GENERAL LAWS.
ARTICLE III
State the total number of shares and par value (if any) of each class of stock
which the corporation is authorized to issue,.
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WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
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TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
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Common: NONE Common: 80,000,000 $0.125
Preferred: NONE Preferred: NONE
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
NOT APPLICABLE.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
NONE.
ARTICLE VI
**Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders.
SEE CONTINUATION SHEET.
** If there are no provisions state "None".
NOTE: THE PRECEDING SIX(6) ARTICLES ARE CONSIDERED TO BE PERMANENT AND MAY ONLY
BE CHANGED BY FILING APPROPRIATE ARTICLES OF AMENDMENT.
CONTINUATION SHEET
ARTICLE 6A
A. In addition to any affirmative vote required by law or these
Restated Articles of Organization or the By-laws of the Corporation, and except
as otherwise expressly provided in Section B of this Article 6A, a Business
Combination (as hereinafter defined) with, or proposed by or on behalf of, any
Interested Stockholder (as hereinafter defined) or any Affiliate or Associate
(as hereinafter defined) of any Interested Stockholder or any person who
thereafter would be an Affiliate or Associate of such Interested Stockholder
shall require the affirmative vote of not less than eighty percent (80%) of the
votes entitled to be cast by the holders of all the then outstanding shares of
Voting Stock (as hereinafter defined), voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage or separate class vote may be specified,
by law or in any agreement with any national securities exchange or otherwise.
B. The provisions of Section A of this Article 6A shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law or by
any other provision of these Restated Articles of Organization or the By-laws of
the Corporation, or any agreement with any national securities exchange, if the
Business Combination shall have been approved, either specifically or as a
transaction which is within an approved category of transactions, by a majority
(whether such approval is made prior to or subsequent to the acquisition of, or
announcement or public disclosure of the intention to acquire, beneficial
ownership of the Voting Stock that caused the Interested Stockholder to become
an Interested Stockholder) of the Continuing Directors (as hereinafter defined).
C. The following definitions shall apply with respect to this Article
6A:
1. The term "Business Combination" shall mean:
a. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder or (ii) any other company (whether or not itself an
Interested Stockholder) which is or after such merger or
consolidation would be an Affiliate or Associate of an
Interested Stockholder; or
b. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay,
extension of credit, joint venture participation or other
arrangement (in one transaction or a series of transactions)
with or for the benefit of any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder involving
any assets, securities or commitments of the Corporation, any
Subsidiary or any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder which (except for any
arrangement, whether as employee, consultant or otherwise,
other than as a director, pursuant to which any Interested
Stockholder or any Affiliate or Associate thereof shall,
directly or indirectly, have any control over or responsibility
for the management of any aspect of the business or affairs of
the Corporation, with respect to which arrangements the value
tests set forth below shall not apply), together with all other
such arrangements (including all contemplated future events),
has an aggregate Fair Market Value and/or involves aggregate
commitments of $10,000,000 or more or constitutes more than 5
percent of the book value of the total assets (in the case of
transactions involving assets or commitments other than capital
stock) or 5 percent of the stockholders' equity (in the case of
transactions involving assets or commitments other than capital
stock) or 5 percent of the stockholders' equity (in the case of
transactions in capital stock) of the entity in question (the
"Substantial Part"), as reflected in the most recent fiscal
year-end consolidated balance sheet of such entity existing at
the time the stockholders of the Corporation would be required
to approve
or authorize the Business Combination involving the assets,
securities and/or commitments constituting any Substantial
Part; or
c. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation or for any amendment to the
Corporation's By-laws; or
d. any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or
otherwise involving an Interested Stockholder) that has the
effect, directly or indirectly, of increasing the proportionate
share of any class or series of Capital Stock, or any
securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any
Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
e. any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing
clauses (a) to (d).
2. The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article
3 of these Restated Articles of Organization, and the term `Voting
Stock' shall mean all Capital Stock which by its terms may be voted
on all matters submitted to stockholders of the Corporation
generally.
3. The term "person" shall mean any individual, firm, company or
other entity and shall include any group comprised of any person and
any other person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding,
directly or indirectly, for the purpose of acquiring, holding,
voting or disposing of Capital Stock.
4. The term "Interested Stockholder" shall mean any person (other
than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit
plan of the Corporation or any Subsidiary or any trustee of or
fiduciary with respect to any such plan when acting in such
capacity) who (a) after June 26, 1986, becomes or announces or
publicly discloses a plan or intention to become the beneficial
owner of Voting Stock representing ten percent (10%) or more of the
votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock, except any person who becomes such a 10%
holder solely as the result of Corporate action; or (b) is an
Affiliate or Associate of the Corporation and at any time after June
26, 1986 and within the two-year period immediately prior to the
date in question has become the beneficial owner of Voting Stock
representing ten percent (10%) or more of the votes entitled to be
cast by the holders of all then outstanding shares of Voting Stock,
unless such Affiliate or Associate has become such a 10% holder
solely as a result of Corporate action.
5. A person shall be a "beneficial owner" of any Capital Stock (a)
which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; (b) which such person or
any of its Affiliates or Associates has, directly or indirectly, (i)
the right to acquire (whether such right is exercisable immediately
or subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, except a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (the
"Act") (or any subsequent provisions replacing such Act, rules or
regulations); or (c) which is beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Capital Stock. For the purposes of
determining whether a person is an Interested Stockholder pursuant
to Paragraph 4 of this Section C, the number of shares of Capital
Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through application of this
Paragraph 5 of Section C, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
6. The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended and the rules and regulations
thereunder (the "Act"), as in effect on date of amendment (the term
"registrant" in said Rule 12b-2 meaning in this case the
Corporation).
7. The term "Subsidiary" means any company of which a majority of
any class of equity security is beneficially owned by the
Corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in Paragraph 4 of
this Section C, the term "Subsidiary" shall mean only a company of
which a majority of each class of equity security is beneficially
owned by the Corporation.
8. The term "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board of Directors"), while such
person is a member of the Board of Directors, who is not an
Affiliate or Associate or representative of the Interested
Stockholder and was a member of the Board of Directors prior to the
time that the Interested Stockholder became an Interested
Stockholder, and any successor of a Continuing Director while such
successor is a member of the Board of Directors, who is not an
Affiliate or Associate or representative of the Interested
Stockholder and is recommended or elected to succeed the Continuing
Director by a majority of Continuing Directors.
9. The term "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date
in question of a share of such stock on the Composite Tape for New
York Stock Exchange Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange, or, if such
stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Act on which such stock is
listed, or, if such stock is not listed on any such exchange, the
highest last quoted price or, if not so quoted, the highest average
of the high bid and low asked prices in the over-the-counter market
with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any similar
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith;
and (c) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined
in good faith by a majority of the Continuing Directors.
D. A majority of the Continuing Directors shall have the power and duty
to determine for the purposes of this Article 6A, on the basis of information
known to them after reasonable inquiry, all questions arising under this Article
6A, including, without limitation, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Capital Stock or other securities
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another, (d) whether a Proposed Action is with, or proposed by, or
on behalf of an Interest Stockholder or an Affiliate or Associate of an
Interested Stockholder, (e) whether the assets that are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $10,000,000 or more, and (f)
whether the assets or securities that are the subject of any Business
Combination constitute a Substantial Part. Any such determination made in good
faith shall be binding and conclusive on all parties.
E. Nothing contained in this Article 6A shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
F. This Article 6A shall not be exclusive with respect to its subject
matter.
G. Except as otherwise provided in the Restated Articles of
Organization or as otherwise required by law, any merger or consolidation or
sale, lease or exchange of all or substantially all of the Corporations assets,
including its goodwill, which would otherwise require a vote of stockholders of
this Corporation pursuant to Chapter 156B of the General Laws of the
Commonwealth of Massachusetts shall require the affirmative vote of a majority
of the shares of each class of stock of this Corporation outstanding and
entitled to vote on the question.
H. For the purposes of this Article 6A, a Business Combination or any
proposal to amend, repeal or adopt any provision of these Restated Articles of
Organization inconsistent with this Article 6A (collectively, "Proposed Action")
is presumed to have been proposed by, or on behalf of, an Interested Stockholder
or an Affiliate or Associate of an Interested Stockholder or a person who
thereafter would become such if (1) after the Interested Stockholder became
such, the Proposed Action is proposed following the election of any director of
the Corporation who with respect to such Interested Stockholder, would not
qualify to serve as a Continuing Director or (2) such Interested Stockholder,
Affiliate, Associate or person votes for or consents to the adoption of any such
Proposed Action, unless as to such Interested Stockholder, Affiliate, Associate
or person a majority of the Continuing Directors makes a good faith
determination that such Proposed Action is not proposed by or on behalf of such
Interested Stockholder, Affiliate, Associate or person, based on information
known to them after reasonable inquiry.
I. Notwithstanding any other provisions of these Restated Articles of
Organization or the By-laws of the Corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, these
Restated Articles of Organization or the By-laws of the Corporation), any
proposal to amend, repeal or adopt any provision of these Articles of
Organization inconsistent with this Article 6A which is proposed by or on behalf
of an Interested Stockholder or an Affiliate or Associate of an Interested
Stockholder shall require the affirmative vote of the holders of not less than
eighty percent (80%) of the votes entitled to be cast by the holders of all the
then outstanding shares of Voting Stock, voting together as a single class;
provided, however, that this Section H shall not apply to, and such eighty
percent (80%) vote shall not be required for, any amendment, repeal or adoption
unanimously recommended by the Board of Directors if all of such directors are
persons who would be eligible to serve as Continuing Directors within the
meaning of Section C, Paragraph 8 of this Article 6A.
ARTICLE 6B
The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than three
nor more than eighteen directors, the exact number of directors to be determined
from time to time by resolution adopted by affirmative vote of a majority of the
entire Board of Directors. The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his term expires and until
his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Any
vacancy on the Board of Directors that results from an increase in the number of
directors may only be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in
the Board of Directors may only be filled by a majority of the directors then in
office, even if less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his predecessor.
Nominations for the election of directors at an annual meeting may be
made by the Board of Directors or a committee appointed by the Board of
Directors or by any stockholder entitled to vote generally in the election of
directors. However, any stockholder may nominate one or more persons for
election as directors at an annual meeting
only if written notice of such stockholders intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary not later than forty-five days prior to
the anniversary of the date of the immediately preceding annual meeting. Each
such notice shall set forth: (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of this Corporation
entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e)
the consent of each nominee to serve as a director if so elected. The presiding
officer of the meeting may refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure.
A director may not be removed from office without cause, and may be
removed for cause only after a reasonable notice and opportunity to be heard
before the body proposing to remove him.
Notwithstanding any other provision of these Restated Articles of
Organization, the affirmative vote of holders of 80% of the shares entitled to
vote at an election of directors shall be required to amend, alter, change or
repeal, or to adopt any provision as part of these Restated Articles of
Organization inconsistent with the purpose and intent of, this Article 6B.
ARTICLE 6C
Except as otherwise provided herein or required by law, the Corporation
may authorize, at a meeting of stockholders duly called for the purpose, by a
vote of a majority of each class of stock outstanding and entitled to vote
thereon, any amendment of these Restated Articles of Organization.
ARTICLE 6D
The Board of Directors shall have the power to make, amend or repeal
the Bylaws of the Corporation in whole or in part.
ARTICLE 6E
Directors of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a Director occurring on or after April 24, 1987 notwithstanding any
provision of law imposing such liability; provided, however, that the foregoing
provision shall not be deemed to eliminate or limit any liability of a Director
(i) for any breach of the Director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section
Sixty-one or Sixty-two of the Business Corporation Law of the Commonwealth or
(iv) for any transaction from which the Director derived an improper personal
benefit.
ARTICLE 6F
Meetings of the stockholders of the Corporation shall be held anywhere
within the United States, as determined by the Board of Directors of the
Corporation, as permitted by the provisions of the Massachusetts Business
Corporation Law.
ARTICLE VII
The effective date of the restated Articles of Organization of the corporation
shall be the date approved and filed by the Secretary of the Commonwealth. If a
later effective date is desired, specify such date which shall not be more than
thirty days after the date of filing.
THE EFFECTIVE DATE OF THE RESTATED ARTICLES OF ORGANIZATION SHALL BE APRIL 15,
2002.
ARTICLE VIII
THE INFORMATION CONTAINED IN THIS ARTICLE VIII IS NOT A PERMANENT PART OF THE
ARTICLES OF ORGANIZATION.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation in Massachusetts is:
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President:
Treasurer:
SEE RIDER TO ARTICLE VIII (B) ATTACHED
Clerk:
Directors:
c. The fiscal year (i.e., tax year) of the corporation shall end on the last day
of the month of: DECEMBER
d. The name and business address of the resident agent of the corporation, if
any, of the corporation is:
PRINCE, LOBEL, GLOVSKY & TYE LLP, 585 COMMERCIAL STREET, BOSTON, MA 02109
**We further certify that the foregoing Restated Articles of Organization affect
no amendments to the Articles of Organization of the corporation as heretofore
amended,
SIGNED UNDER THE PENALTIES OF PERJURY, this 11th day of April, 2002,
/s/ Daniel DalleMolle, *President,
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DANIEL DALLEMOLLE
/s/ M. Frances Durden, *Clerk.
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M. FRANCES DURDEN
RIDER TO ARTICLE VIII(B)
OFFICERS
Business Address Residence Address
President:
Daniel DalleMolle Enesco Group, Inc. 7719 Oakridge Court
225 Windsor Drive Crystal Lake, IL 60012
Itasca, IL 60143
Clerk:
M. Frances Durden Enesco Group, Inc. 228 Ivy Court
225 Windsor Drive Streamwood, IL 60107
Itasca, IL 60143
Treasurer:
Jeffrey W. Lemajeur Enesco Group, Inc. 9 East Emerson Street
225 Windsor Drive Arlington Heights, IL 60005
Itasca, IL 60143
DIRECTORS
Business Address Residence Address
Anne-Lee Verville None 359 Stickney Hill Road
Hopkinton, NH 03229
Daniel DalleMolle Enesco Group, Inc. 7719 Oakridge Court
225 Windsor Drive Crystal Lake, IL 60012
Itasca, IL 60143
Eugene Freedman Enesco Group, Inc. 1155 Oak Ridge Drive
225 Windsor Drive Glencoe, IL 60022
Itasca, IL 60143-1225
John F. Cauley None 119 The Laurels
Enfield, CT 06082
George R. Ditomassi None 152 Tennyson Drive
Longmeadow, MA 01106
Judith R. Haberkorn None Swans Way
153B Clark Point
West Tremont, ME 04690
Donald L. Krause None 19635 Independence Court
Brookfield, WI 53045
Donna Brooks Lucas DBL Multi-Media Group 714 Foxdale Avenue
714 Foxdale Avenue Winnetka, IL 60093
Winnetka, IL 60093
Homer G. Perkins None 8 Carol Avenue
Easthampton, MA 01027
Thane A. Pressman None 585 Meguzee Point Road
Unit 202
Elk Rapids, MI 49629
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B, SECTION 74)
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I hereby approve the within Restated
Articles of Organization and, the
filing fee in the amount of $ ________
having been paid, said articles are
deemed to have been filed with me this
____________ day of _________________,
20____________.
Effective date:
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WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Andrew D. Ashe, Esq.
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Prince, Lobel, Glovsky & Tye LLP
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585 Commercial Street
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Boston, MA 02109
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Telephone: (617) 456-8065
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