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ARTICLES OF AMENDMENT TO AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
FIRSTWAVE TECHNOLOGIES, INC.
1.
The name of the Corporation is Firstwave Technologies, Inc.
2.
The Corporation hereby amends Article II of its Amended and Restated
Articles of Incorporation to designate a class of Series A Convertible
Preferred Stock consisting of 20,000 shares, no par value per share, as
provided on Exhibit A attached hereto.
3.
These Articles of Amendment were duly adopted by the unanimous written
consent of the Board of Directors of the Corporation, dated as of April 26,
1999. No shareholder approval was required to approve the amendment to Article
II of the Corporation's Amended and Restated Articles of Incorporation.
IN WITNESS WHEREOF, the undersigned, being the President of the
Corporation, has executed these Articles of Amendment on behalf of the
Corporation on April 28, 1999.
FIRSTWAVE TECHNOLOGIES, INC.
By:/s/ Richard T. Brock
-----------------------------------------
Name: Richard T. Brock
Title: President
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EXHIBIT A
CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
FIRSTWAVE TECHNOLOGIES, INC.
A GEORGIA CORPORATION (the "Corporation")
---------------------------------------------------------
Twenty thousand (20,000) shares of the Corporation's Preferred Stock,
no par value per share, designated as "Series A Convertible Preferred Stock"
("Series A Preferred Stock"), are authorized for issuance with the voting
powers, preferences and other special rights, qualifications, limitations and
restrictions thereof set forth below:
1. Dividends. Each holder of shares of Series A Preferred Stock shall be
entitled to receive, with respect to each share of Series A Preferred Stock
registered in his, her or its name on the stock transfer books of the
Corporation, cumulative dividends at a rate of $9 per annum. Dividends on
Series A Preferred Stock shall be paid annually on December 31 of each year to
holders of record as of December 15 of such year (except that any holder that
converts such holder's shares of Series A Preferred Stock pursuant to Section 3
hereof shall be paid, on the date of conversion, cumulative dividends dating
only through the last full fiscal quarter prior to the date of conversion),
shall accrue on each share beginning on the date of issuance, and shall be
cumulative. Dividends payable on the Series A Preferred Stock shall be paid in
cash or, at the election of the Corporation, in shares of the common stock, no
par value per share (the "Common Stock") of the Corporation. If the Corporation
elects to pay a dividend in shares of Common Stock, the number of shares of
Common Stock to be paid for each such dividend shall equal the number of shares
that could be purchased by an equivalent cash dividend at a price per share
equal to the average closing prices for the Common Stock for the last 20
trading days preceding the record date on the principal trading market for the
Common Stock. If there is no trading market for the Common Stock, the shares
shall be valued for this purpose in good faith by the Board of Directors of the
Corporation whose determination thereof shall be conclusive and binding on the
holders of Series A Preferred Stock. Any payment made by the Corporation on
unpaid cumulative dividends, if less than the total amount of such dividends,
shall be applied first to those dividends which have been accrued for the
longest time. No dividend or other distribution shall be paid on or declared or
set apart for payment on any shares of the Common Stock of the Corporation or
any shares of any other class or series or issue of preferred stock that
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is junior to Series A Preferred Stock as long as any accrued dividends on the
Series A Preferred Stock remain unpaid.
2. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Series A Preferred Stock shall be entitled, before any distribution or payment
is made upon the Common Stock or upon any other class or series or issue of
preferred stock of the Corporation that is junior to the Series A Preferred
Stock, to be paid an amount equal to $100 per share of Series A Preferred
Stock, plus all accrued but unpaid dividends (such amounts being herein
sometimes referred to as the "Liquidation Payments"). Thereafter, the holders
of the Series A Preferred Stock shall not be entitled to any further payment.
If upon such liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the assets to be distributed to the holders of the
Series A Preferred Stock are insufficient to permit payment to the holders of
Series A Preferred Stock of the full amount of the Liquidation Payments, then
the entire assets of the Corporation to be distributed shall be distributed
ratably per share among the holders of Series A Preferred Stock. Upon any such
liquidation, dissolution or winding up of the Corporation, after the holders of
the Series A Preferred Stock have been paid in full the amounts to which they
are entitled, the remaining assets of the Corporation shall be distributed
ratably to the remaining holders of the Corporation's capital stock in
accordance with their respective rights and preferences under the Corporation's
Articles of Incorporation. The Corporation must give written notice of such
liquidation, dissolution or winding up (stating a payment date, the amount of
the Liquidation Payment and the place where said sums shall be payable) by
first class mail, postage prepaid, not less than 30 or more than 60 days prior
to the payment date stated therein, to the holders of record of the Series A
Preferred Stock and the Common Stock, such notice to be addressed to each
shareholder at its mailing address as shown by the records of the Corporation.
A sale, lease, exchange or transfer of all or substantially all of the assets
of the Corporation shall be regarded as a liquidation, dissolution or winding
up of the affairs of the Corporation within the meaning of this Section 2.
3. Conversion.
3.1 Right to Convert. Subject to the terms and conditions of this
Section 3, the holder of any share or shares of Series A Preferred Stock shall
have the right, at such holder's option at any time after April 25, 2000, to
convert any such shares of Series A Preferred Stock (except that upon any
liquidation, dissolution or winding up of the Corporation the right of
conversion shall terminate at the close of business on the last full business
day preceding the date fixed for payment of the Liquidation Payments) into such
number of fully paid and nonassessable whole shares of Common Stock at a
conversion price determined by dividing $100 by $2.06 (the "Conversion Price")
(which equals 120% of the weighted average of the closing prices for the Common
Stock for the last 20 trading days prior to the subscription for the Series A
Preferred Stock for the holder thereof). If there is no trading market for the
Common Stock, the shares shall be valued for this purpose in good faith by the
Board of Directors of the Corporation whose determination thereof shall be
conclusive and binding on the holders of Series A Preferred Stock. Such rights
of conversion may be exercised by the holder thereof by giving written notice
to the Corporation that the holder elects to convert a stated number of shares
of Series A Preferred Stock into Common Stock and by surrender of a certificate
or certificates for the shares so to be
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converted to the Corporation at its principal office (or such other office or
agency of the Corporation as the Corporation may designate by notice in writing
to the holder or holders of the Series A Preferred Stock) at any time during
its usual business hours on the date set forth in such notice, together with a
statement of the name or names (with address), subject to compliance with
applicable laws to the extent such designation shall involve a transfer, in
which the certificate or certificates for shares of Common Stock are to be
issued. The number of whole shares of Common Stock into which the Preferred
Stock may be converted as determined hereinabove shall be adjusted to reflect
any recapitalization of the Common Stock of the Corporation, including as a
result of a stock dividend (other than shares of Common Stock paid to holders
of Series A Preferred Stock as dividend payments) or a stock split.
3.2 Issuance of Certificates; Time Conversion Effected. Promptly after
the receipt by the Corporation of the written notice referred to in subsection
3.1 and the certificate or certificates for the share or shares of the Series A
Preferred Stock to be converted, the Corporation shall issue and deliver, or
cause to be issued and delivered, to the holder, registered in such name or
names as such holder may direct, subject to compliance with applicable laws to
the extent such designation shall involve a transfer, a certificate or
certificates for the number of whole shares of Common Stock issuable upon the
conversion of such share or shares of Series A Preferred Stock. To the extent
permitted by law, such conversion shall be deemed to have been effected and the
Conversion Price shall be determined as of the close of business on the date on
which the Corporation receives such written notice and the certificate or
certificates for such share or shares shall have been surrendered as aforesaid,
and at such time the rights of the holder of such share or shares of Series A
Preferred Stock shall cease (with respect to the shares of Series A Preferred
Stock), and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares
represented thereby.
3.3 Fractional Shares; Dividends; Partial Conversion.
(a) No fractional shares shall be issued upon conversion of
the Series A Preferred Stock into Common Stock and the number of shares of
Common Stock to be issued shall be rounded to the nearest whole share, and no
payment or adjustment shall be made upon any conversion on account of any
cash dividends on the Series A Preferred Stock so converted or the Common
Stock issued upon such conversion. In case the number of shares of Series A
Preferred Stock represented by the certificate or certificates surrendered
pursuant to subsection 3.1 exceeds the number of shares converted, the
Corporation shall, upon such conversion, execute and deliver to the holder
thereof, at the expense of the Corporation, a new certificate or certificates
for the number of shares of Series A Preferred Stock, represented by the
certificate or certificates surrendered which are not to be converted.
(b) Upon conversion of any shares of Series A Preferred
Stock, the holder of the shares of Series A Preferred Stock so converted
shall be entitled to receive any dividends declared but unpaid with respect
to such shares of Series A Preferred Stock provided that such dividends shall
have been declared by the Board of Directors of the Corporation and the
record date for such dividends shall have been on or before the date such
shares shall have been
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converted. No payment or adjustment shall be made on account of dividends
declared and payable to holders of Common Stock of record on a date prior to
the date of conversion.
3.4 Other Notices. If at any time:
(a) the Corporation declares any dividend upon its Common
Stock payable in cash or stock or makes any other distribution to the holders
of the Common Stock;
(b) the Corporation offers for subscription pro rata to the
holders of its Common Stock any additional shares of stock of any class or
other rights;
(c) there is any reclassification of the capital stock of the
Corporation, or a consolidation or merger of the Corporation with, or a sale
of all or substantially all its assets to, another corporation; or
(d) there is a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then the Corporation shall give, by first class mail, postage prepaid,
addressed to each holder of any shares of Series A Preferred Stock at the
address of such holder as shown on the books of the Corporation, (a) at least
15 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in
respect of any such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, at least 15 days' prior written notice of the date
when the same shall take place. Such notice in accordance with the foregoing
clause (a) shall also specify, in the case of any such dividend, distribution
or subscription rights, the date on which the holders of Common Stock shall be
entitled thereto, and such notice in accordance with the foregoing clause (b)
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up, as the case may be.
3.5 Stock to be Reserved. The Corporation must at all times reserve
and keep available out of its authorized but unissued Common Stock, solely
for the purpose of issuance upon the conversion of the Series A Preferred
Stock as herein provided, such number of shares of Common Stock as shall then
be issuable upon the conversion of all outstanding shares of Series A
Preferred Stock. All shares of Common Stock which shall be so issued shall be
duly and validly issued and fully paid and nonassessable and free from all
taxes, liens and charges arising out of or by reason of the issue thereof,
and, without limiting the generality of the foregoing, the Corporation
covenants that it will from time to time take all such action as may be
requisite to assure that the par value per share of the Common Stock is at
all times equal to or less than the effective Conversion Price. The
Corporation will take all such action within its control as may be necessary
on its part to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or regulation, or of any requirement
of any
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national securities exchange upon which the Common Stock of the Corporation
may be listed. If at any time the number of authorized but unissued shares of
Common Stock are insufficient to effect the conversion of all of the then
outstanding shares of Series A Preferred Stock, the Corporation shall take
such corporate actions as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes.
3.6 No Reissuance of Series A Preferred Stock. Shares of Series A
Preferred Stock that are converted into shares of Common Stock as provided
herein shall not be reissued.
3.7 Issue Tax. The issuance of certificates for shares of Common Stock
upon conversion of the Series A Preferred Stock shall be made without charge
to the holders thereof for any issuance tax in respect thereof, provided that
the Corporation shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the Series A Preferred
Stock which is being converted.
3.8 Closing of Books. The Corporation will at no time close its
transfer books against the transfer of any Series A Preferred Stock or of any
shares of Common Stock issued or issuable upon the conversion of any shares
of Series A Preferred Stock in any manner which interferes with the timely
conversion of such Series A Preferred Stock.
3.9 Definition of Common Stock. As used in this Section 3, the term
"Common Stock" means and includes the Corporation's authorized Common Stock
as constituted on the date of filing of this Certificate of Designation and
shall also include any capital stock of any class of the Corporation
thereafter authorized that shall not be limited to a fixed sum in respect of
the rights of the holders thereof to participate in dividends or in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; provided, however, that such
term, when used to describe the securities receivable upon conversion of
shares of the Series A Preferred Stock of the Corporation, shall include only
shares designated as Common Stock of the Corporation on the date of filing of
this Certificate of Designation.
4. Voting. Except as otherwise provided by law and herein, the holders of
Series A Preferred Stock shall vote together with the holders of Common Stock
on all matters to be voted on by the shareholders of the Corporation, and
each holder of Series A Preferred Stock shall be entitled to one vote for
each share of Common Stock that would be issuable to such holder upon the
conversion of all the shares of Series A Preferred Stock held by such holder
on the record date for the determination of shareholders entitled to vote.
5. Restrictions. At any time when shares of Series A Preferred Stock are
outstanding, and in addition to any other vote of shareholders required by
law or by the Corporation's Articles of Incorporation, without the prior
consent of the holders of a majority of the outstanding Series A Preferred
Stock, given in person or by proxy, either in writing, at an annual meeting
or at a special meeting called for that purpose, at which meeting the holders
of the shares of such Series A Preferred Stock shall vote together as a
class:
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(a) The Corporation will not:
(i) create or authorize the creation of any
additional class or series of shares unless the same ranks
junior to the Series A Preferred Stock both as to dividends
and as to the distribution of assets on liquidation;
(ii) increase the authorized amount of the Series A
Preferred Stock, or increase the authorized amount of any
additional class or series of shares unless the same ranks
junior to the Series A Preferred Stock both as to dividends
and as to the distribution of assets on liquidation; or
(iii) create or authorize any obligations or
securities convertible into shares of Series A Preferred
Stock or into shares of any other class unless the same ranks
junior to the Series A Preferred Stock both as to dividends
and as to the distribution of assets on liquidation,
in each case whether any such creation or authorization or increase shall be by
means of amendment of the Corporation's Articles of Incorporation, merger,
consolidation or otherwise.
(b) The Corporation will not amend, alter or repeal the
Corporation's Articles of Incorporation or Bylaws in any manner, or file any
directors' resolutions pursuant to the Georgia Business Corporation Code
containing any provision, in either case which affects the respective
preferences, voting power, qualifications, special or relative rights or
privileges of the Series A Preferred Stock or which in any manner adversely
affects the Series A Preferred Stock or the holders thereof as a class.
6. Redemption.
6.1 Call for Redemption. So long as dividends for all past dividend
periods shall have been paid on all outstanding shares of Series A Preferred
Stock prior to any notice of redemption being given and the full dividends
thereon for the then current dividend period shall have been paid or declared
and amounts sufficient for the payment thereof set aside (or shares of Common
Stock for such purpose shall have been reserved if the Corporation shall have
elected to pay such dividend in such shares), commencing April 26, 2001, and at
any time thereafter the Corporation, at the option of the Board of Directors,
may redeem in whole or in part the shares of Series A Preferred Stock at the
time outstanding, at any time or from time to time, upon notice given as
hereinafter specified, at a redemption price of $100 per share. In case of any
redemption of only a part of the shares of Series A Preferred Stock at the time
outstanding, the redemption shall be pro rata.
6.2 Notice. Notice of redemption of shares of Series A Preferred Stock
shall be mailed by first class mail, postage prepaid, addressed to the holders
of record of the shares to be redeemed at their respective last addresses as
they shall appear on the books of the Corporation. Such mailing shall be at
least 20 days and not more than 60 days prior to the date fixed for redemption.
Any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the stockholder receives such
notice, but
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failure duly to give such notice by mail, or any defect in such notice or in
the mailing thereof, to any holder of shares of Series A Preferred Stock
designated for redemption shall not affect the validity of the proceedings
for the redemption of any other shares of Series A Preferred Stock.
6.3 Procedure. If such notice of redemption shall have been duly given
or if the Corporation shall have given to the bank or trust company
hereinafter referred to irrevocable authorization promptly to give such
notice, and if on or before the redemption date specified therein all funds
necessary for such redemption shall have been set aside by the Corporation,
separate and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares called for redemption, so as to be and continue to
be available therefor, or, at the option of the Corporation, deposited by the
Corporation with such bank or trust company in trust for the pro rata benefit
of the holders of the shares called for redemption, then, notwithstanding
that any certificate for shares so called for redemption shall not have been
surrendered for cancellation, on and after such redemption date, all shares
so called for redemption, not theretofore converted and outstanding on the
redemption date, shall no longer be deemed to be outstanding and all rights
with respect to such shares shall forthwith on such redemption date cease and
terminate, except only the right of the holders thereof to receive the amount
payable on redemption thereof, without interest. The aforesaid bank or trust
company shall be organized and in good standing under the laws of the United
States of America or of the State of Georgia, shall be doing business in
Georgia, and shall be identified in the notice of redemption. Any interest
accrued on such funds shall be paid to the Corporation from time to time. Any
funds so deposited and unclaimed at the end of three years from the
redemption date shall, to the extent permitted by law, be released or repaid
to the Corporation, after which time the holders of the shares so called for
redemption shall look only to the Corporation for payment thereof. Any funds
so deposited or set aside by the Corporation which shall not be required for
such redemption because of the exercise of any right of conversion pursuant
to Section 3 hereof shall be released or repaid to the Corporation forthwith.
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ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
BROCK INTERNATIONAL, INC.
1. The name of the corporation is BROCK INTERNATIONAL, INC.
(hereinafter the "Corporation").
2. The Restated Articles of Incorporation of the Corporation are
hereby amended by deleting Article I. in its entirety and substituting the
following in lieu thereof:
"I.
The name of the corporation is FIRSTWAVE TECHNOLOGIES, INC."
3. All other provisions of the Restated Articles of Incorporation
shall remain in full force and effect.
4. This amendment to the Restated Articles of Incorporation was duly
adopted by a unanimous written consent of the Board of Directors of the
Corporation dated January 27, 1998.
5. Pursuant to Section 14-2-1002(6) of the Georgia Business
Corporation Code,shareholder approval is not required for such an amendment.
6. The effective date of the foregoing amendment shall be March 1,
1998.
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IN WITNESS WHEREOF, the undersigned does hereby set his hand effective
this 29th day of January, 1998.
BROCK INTERNATIONAL, INC.
/s/ Kenneth D. Barwick
-----------------------------------------
Kenneth D. Barwick, Senior Vice President
ATTEST:
/s/ G. William Speer
- -----------------------------------
G. William Speer, Secretary
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ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
BROCK CONTROL SYSTEMS, INC.
--------------------------------------------------
1. The name of the corporation is BROCK CONTROL SYSTEMS, INC.
(hereinafter the "Corporation").
2. The Articles of Incorporation of the Corporation are hereby amended
by deleting Article I. in its entirety and substituting the following in lieu
thereof:
"I.
The name of the corporation is BROCK INTERNATIONAL, INC."
3. This amendment to the Articles of Incorporation was duly adopted by
unanimous written consent of the Board of Directors of the Corporation on
January 31, 1996.
4. Pursuant to Section 14-2-1002(6) of the Georgia Business
Corporation Code, shareholder approval is not required for such an amendment.
IN WITNESS WHEREOF, the undersigned does hereby set his hand
effective this 2nd day of February, 1996.
BROCK CONTROL SYSTEMS, INC.
/s/ Richard T. Brock
-------------------------------------
Richard T. Brock,
Chairman and President
ATTEST:
/s/ G. William Speer
- -----------------------------------
G. William Speer, Secretary
[CORPORATE SEAL]
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BROCK CONTROL SYSTEMS, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
1.
The name of the corporation is BROCK CONTROL SYSTEMS, INC.
2.
The Articles of Incorporation of Brock Control Systems, Inc., as filed
with the Georgia Secretary of State on October 1, 1984, as amended by those
certain Articles of Amendment filed with the Georgia Secretary of State on May
9, 1990, are hereby amended and restated in their entirety as follows:
I.
The name of the Corporation is BROCK CONTROL SYSTEMS, INC.
II.
The Corporation shall have authority to issue 11,00,000 shares of
stock, of which 1,000,000 shares shall be designated "Preferred Stock," no par
value, and 10,000,000 shares shall be designated "Common Stock," no par value.
The designations and preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, and terms
and conditions of redemption of the shares of stock are as follows:
Preferred Stock
The Preferred Stock may be issued from time to time by the Board of
Directors as shares of one or more series. The description of shares of each
series of Preferred Stock, including any preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption shall be as set forth in
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resolutions adopted by the Board of Directors, and articles of amendment shall
be filed with the Georgia Secretary of State as required by law to be filed
with respect to issuance of such Preferred Stock, prior to the issuance of any
such shares.
The Board of Directors is expressly authorized at any time to adopt
resolutions providing for the issuance of, or providing for a change in the
number of, shares of any particular series of Preferred Stock and, if and to
the extent from time to time required by law, to file articles of amendment
which are effective without shareholder action to increase or decrease the
number of shares included in each series of Preferred Stock (but not to
decrease the number of shares in any series below the number of shares then
issued), and to set or change in any one or more respects the designations,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms and conditions of
redemption relating to the shares of each series.
Common Stock
Subject to all of the rights of the Preferred Stock as expressly
provided herein, by law or by the Board of Directors pursuant to this Article
II, the Common Stock of the Corporation shall possess all such rights and
privileges as are afforded to capital stock by applicable law in the absence of
any express grant of rights or privileges provided for herein, including, but
not limited to, the following rights and privileges:
(a) Dividends may be declared and paid or set apart for
payment upon the Common Stock out of any assets or funds of the
Corporation legally available for the payment of dividends;
(b) The holders of Common Stock shall have the right to vote
for the election of directors and on all other matters requiring
shareholder action, each share being entitled to one vote; and
(c) Upon the voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, the net assets of the
Corporation available for distribution shall be
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distributed pro rata to the holders of the Common Stock in accordance
with their respective rights and interests.
III.
The registered office of the Corporation shall be at 229 Peachtree
Street, N.E., Suite 2100, Atlanta, Georgia 30303 in Fulton County. The
registered agent of the Corporation at such address shall be Joe G. Davis, Jr.
IV.
The name and address of the incorporator is:
R. Hunt Dunlap, Jr.
Cashin & Davis
229 Peachtree Street, N.E.
Suite 2100
Atlanta, Georgia 30303
V.
The mailing address of the principal office of the Corporation is:
Brock Control Systems, Inc.
2859 Paces Ferry Road
Suite 1000
Atlanta, Georgia 30339
VI.
(a) The number of directors of the Corporation shall be not less than
two (2) and not more than eleven (11) as determined from time to time by the
Board of Directors. If the number of directors fixed by the Board of Directors
is less than six (6), all directors shall be deemed to belong to the same class
and shall hold office until the next annual shareholders' meeting following
their election or appointment. If the number of directors fixed by the Board of
Directors is six (6) or more, the directors shall be divided into three classes
(designated as "Class
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I," "Class II" and "Class III") as nearly equal in number as possible. The
directors in Class I first chosen shall hold office until the first annual
meeting of the shareholders following their election or appointment. The
directors in Class II first chosen shall hold office until the second annual
meeting of the shareholders following their election or appointment. Directors
in Class III first chosen shall hold office until the third annual meeting of
the shareholders following their election or appointment. At each annual
meeting of the shareholders held thereafter, directors shall be chosen for a
term of three (3) years to succeed those whose terms expire.
(b) Any vacancy in the Board of Directors resulting from the death,
resignation or retirement of a director, or any other cause other than removal
by the shareholders or increase in the number of directors, shall be filled by
a majority vote of the remaining directors, though less than a quorum, for a
term corresponding to the unexpired term of his predecessor in office.
(c) Newly created directorships resulting from any increase in the
authorized number of directors shall be filled by a majority vote of the
remaining directors, though less than a quorum, and the directors so chosen
shall hold office for a term expiring at the next annual meeting of
shareholders at which a successor shall be elected and shall qualify.
(d) At any meeting of the shareholders called for the purpose, the
entire board of directors or any individual director may, by the vote of eighty
percent (80%) of all of the shares of the Corporation outstanding and entitled
to vote for election of directors, be removed from office for cause.
(e) Notwithstanding anything contained in these Articles of
Incorporation to the contrary, the affirmative vote of the holders of at least
eighty percent (80%) of the shares of the Corporation entitled to vote for
election of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article VI.
VII.
No director shall have any personal liability to the Corporation or to
its shareholders for monetary damages for breach of duty of care or other duty
as a director, by reason of any act or
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omission occurring subsequent to the date when this provision becomes
effective, except that this provision shall not eliminate or limit the
liability of a director for:
(a) Any appropriation of any business opportunity of the Corporation
in violation of his duties;
(b) Acts or omissions which involve intentional misconduct or a
knowing violation of law;
(c) Liabilities of a director imposed by Section 14-2-832 of the
Georgia Business Corporation Code; or
(d) Any transaction from which the director derived an improper
personal benefit.
VIII.
Notwithstanding any provision of law to the contrary, the affirmative
vote of two-thirds of all of the votes entitled to be cast on the matter shall
be sufficient, valid and effective, after due authorization, approval or advise
of such action by the Board of Directors, as required by law, to approve and
authorize the following acts of the Corporation:
(a) amendment of the Articles of Incorporation of the Corporation;
(b) consolidation of the Corporation with one or more corporations to
form a new consolidated corporation;
(c) merger of the Corporation into another corporation or the merger
of one or more other corporations into the Corporation;
(d) sale, lease, exchange or other transfer of all, or substantially
all, of the property and assets of the Corporation, including its goodwill;
(e) the voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation; or
(f) any other transaction that Section 14-2-1110 of the Georgia
Business Corporation Code defines as a "Business Combination".
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IX.
Any action required by law or by the Bylaws of the Corporation to be
taken at a meeting of the shareholder of the Corporation, and any action which
may be taken at a meeting of the shareholders, may be taken without a meeting
if a written consent, setting forth the action so taken, shall be signed by all
the shareholders entitled to vote on the action.
IN WITNESS WHEREOF, BROCK CONTROL SYSTEMS, INC. has caused these
Amended and Restated Articles of Incorporation to be executed, its corporate
seal affixed and the foregoing to be attested, all by duly authorized officers
on the 4th day of February 1993.
BROCK CONTROL SYSTEMS, INC.
By: /s/ Rodger L. Johnson
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Rodger L. Johnson, President
Attest: /s/ Donna M. Eckman
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Donna M. Eckman, Secretary
6