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Exhibit 3.3
STATEMENT OF RESOLUTION
ESTABLISHING SERIES OF SHARES
Pursuant to the provisions of Article 2.13 of the Texas Business
Corporation Act, the undersigned corporation submits the following statement for
the purpose of establishing and designating a series of shares and fixing and
determining the relative rights and preferences thereof.
1. The name of the corporation is Maxxim Medical, Inc. (the
"Corporation").
2. That pursuant to the authority conferred upon the Board of Directors
by the Articles of Incorporation of the said Corporation, the said Board of
Directors on July 10, 1997 adopted the following resolution establishing and
designating a series of shares and fixing and determining the preferences,
limitations and relative rights thereof:
"RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation by the Articles of Incorporation, the Board of Directors does
hereby provide for the issue of a series of Preferred Stock, $1.00 par value per
share, of the Corporation, to be designated "Series A Participating Preferred
Stock," initially consisting of 40,000 shares, and to the extent that the
designations, powers, preferences and relative and other special rights and the
qualifications, limitations, and restrictions of the Series A Participating
Preferred Stock are not stated and expressed in the Articles of Incorporation,
does hereby fix and herein state and express such designations, powers,
preferences and relative and other special rights and the qualifications,
limitations and restrictions thereof, as follows (all terms used herein which
are defined in the Articles of Incorporation shall be deemed to have the
meanings provided therein):
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock," $1.00 par value per
share, and the number of shares constituting such series shall be 40,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior right of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series A Participating Preferred Stock with respect to dividends, the holders
of shares of Series A Participating Preferred Stock shall be entitled to receive
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in
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cash on the last day of September, December, March and June in each year (each
such date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to, subject
to the provision for adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock of the Corporation (the "Common
Stock") since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Participating
Preferred Stock. In the event the Corporation shall at any time after July 10,
1997 (the "Rights Dividend Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount to which holders of shares
of Series A Participating Preferred Stock were entitled immediately prior to
such event under the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock).
(C) Dividends shall begin to accrue on outstanding shares of Series A
Participating Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Participating Preferred
Stock, unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and
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payable on such shares shall be allocated pro rate on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Participating
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Participating Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the shareholders
of the Corporation. In the event the Corporation shall at any time after the
Rights Dividend Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the number of votes per share to which holders of shares
of Series A Participating Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a
vote of shareholders of the Corporation.
(C) Except as required by law, holders of Series A Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) The Corporation shall not declare any dividend on, make any
distribution on, or redeem or purchase or otherwise acquire for consideration
any shares of Common Stock after the first issuance of a share or fraction of a
share of Series A Participating Preferred Stock unless concurrently therewith
it shall declare a dividend on the Series A Participating Preferred Stock as
required by Section 2 hereof.
(B) Whenever quarterly dividends or other dividends or
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distributions payable on the Series A Participating Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Participating Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with Series A
Participating Preferred Stock, except dividends paid ratably on the Series A
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such parity stock in exchange for shares of
any stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Participating Preferred
Stock;
(iv) purchase or otherwise acquire for consideration any shares
of Series A Participating Preferred Stock, or any shares of stock ranking on a
parity with the Series A Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(C) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be canceled promptly
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after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Participating Preferred Stock
shall have received $1.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Participating
Preferred Stock unless, prior thereto, the holders of shares of Common Stock
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii)
1,000 (as appropriately adjusted as set forth in subparagraph (C) below to
reflect such events as stock splits, stock dividends and recapitalization with
respect to the Common Stock) (such number in clause (ii), the "Adjustment
Number"). Following the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of
Series A Participating Preferred Stock and Common Stock, respectively, holders
of Series A Participating Preferred Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of the remaining assets to
be distributed in the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Participating Preferred Stock, then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Dividend Declaration Date (i) declare any dividend on
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Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Dividend Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Participating Preferred Stock shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Participating Preferred
Stock shall not be redeemable.
Section 9. Ranking. The Series A Participating Preferred Stock shall rank
junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Articles of Incorporation of the Corporation
shall not be further amended in any manner which would materially alter or
change the powers, preference or special rights of the Series A Participating
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of a majority or more of the outstanding shares of Series A
Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Participating
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Preferred Stock may be issued in fractions of a share which shall entitle the
holder in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Participating Preferred Stock.
RESOLVED FURTHER, that the President and the Secretary or any Assistant
Secretary of this Corporation be, and they hereby are, authorized and directed
to prepare and file (or cause to be prepared and filed) a Statement of
Resolution Establishing Series of Shares in accordance with the foregoing
resolution and the provisions of Texas law and to take such actions as they may
deem necessary or appropriate to carry out the intent of the foregoing
resolution.
Dated August 29, 1997.
MAXXIM MEDICAL, INC.
By: /s/ Kenneth W. Davidson
---------------------------------------
Kenneth W. Davidson, President
/s/ Peter M. Graham
---------------------------------------
Secretary
STATE OF TEXAS S.
COUNTY OF HARRIS S.
Before me, a notary public, on this day personally appeared Kenneth W.
Davidson, known to me to be the person whose name is subscribed to the foregoing
document and, being by me first duly sworn, declared that the statements
therein contained are true and correct.
Given under my hand and seal of office this 29th day of August, A.D., 1997.
/s/ Grace K. Shephard
----------------------------------------
(Printed or stamped name)
Notary Public, State of Texas
My commission expires: July 16, 1998
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ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
MAXXIM MEDICAL, INC.
*****
PURSUANT to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation (the "Corporation") adopted the
following Articles of Amendment to its Articles of Incorporation:
ARTICLE ONE
The name of the Corporation is Maxxim Medical, Inc.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted by
the shareholders of the Corporation on March 15, 1996:
SECTION 1 of ARTICLE IV of the Articles of Incorporation of the Corporation
is amended in its entirety so that, as amended, SECTION 1 of ARTICLE IV
shall be and read as follows:
"ARTICLE IV
Capital Stock
Section 1. Authorized Shares. The total number of shares of stock
which the Corporation shall have authority to issue is 50,000,000,
divided into classes as follows: (i) 10,000,000 shares of Preferred
Stock, $1.00 par value each (hereinafter referred to as "Preferred
Stock"), and (ii) 40,000,000 shares of Common Stock, $0.001 par value
each (hereinafter referred to as "Common Stock")."
ARTICLE THREE
The number of shares of the Corporation outstanding at the time of such
adoption was 8,069,847 shares of common stock, $0.001 par value per share
("Common Stock"), and the number of shares entitled to vote thereon was
8,069,847 shares of Common Stock.
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ARTICLE FOUR
The number of shares of Common Stock voted for such amendment was
7,004,397; and the number of shares of Common Stock voting against such
amendment was 215,776.
ARTICLE FIVE
This amendment does not provide for a reclassification or exchange of
issued shares of the Corporation's capital stock.
ARTICLE SIX
This amendment effects no change in the amount of stated capital of the
Corporation.
DATED: March 15, 1996.
MAXXIM MEDICAL, INC.
By: /s/ Kenneth Davidson
---------------------------------------
Kenneth Davidson, Chairman of the Board,
President and Chief Executive Officer
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ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
HENLEY INTERNATIONAL, INC.
* * * * *
PURSUANT to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation (the "Corporation") adopts the
following Articles of Amendment to its Articles of Incorporation:
ARTICLE ONE
The name of the Corporation is Henley International, Inc.
ARTICLE TWO
The following amendment to the Articles of Incorporation was adopted by the
shareholders of the Corporation on March 4, 1993:
ARTICLE I of the Articles of Incorporation of the Corporation is amended in
its entirety so that, as amended, ARTICLE I shall be and read as follows:
"ARTICLE I
The name of the Corporation is MAXXIM MEDICAL, INC."
ARTICLE THREE
The number of shares of the Corporation outstanding at the time of such
adoption was 5,431,257 shares of common stock, $.001 par value per share
("Common Stock"), and the number of shares entitled to vote thereon was
5,431,257 shares of Common Stock.
ARTICLE FOUR
The number of shares of Common Stock voted for such amendment was
3,623,513; and the number of shares of Common Stock voting against such
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amendment was 26,197.
ARTICLE FIVE
This amendment does not provide for a reclassification of issued shares of
the Corporation's capital stock.
ARTICLE SIX
This amendment effects no change in the amount of stated capital of the
Corporation.
DATED: March 4, 1993.
HENLEY INTERNATIONAL, INC.
By: /s/ Kenneth W. Davidson
------------------------------------
Kenneth W. Davidson, President
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RESTATED ARTICLES OF INCORPORATION
ARTICLE ONE
Henley Merger Corp., pursuant to the provisions of Article 4.07 of the
Texas Business Corporation Act, hereby adopts restated articles of
incorporation which accurately copy the articles of incorporation and all
amendments thereto that are in effect to date and as further amended by such
restated articles of incorporation as hereinafter set forth and which contain
no other change in any provision hereof.
ARTICLE TWO
The articles of incorporation of the corporation are amended by the
restated articles of incorporation as follows:
Article I, Section 3(e) of Article IV, Section 6(c) of Article IV, and
Article VIII of the Articles of Incorporation of the Corporation in effect
on the date hereof are hereby deleted in their entirety and replaced by
Article I, Section 3(e) of Article IV, Section 6(c) of Article IV, and
Article VIII of the Restated Articles of Incorporation as hereinafter set
forth.
ARTICLE THREE
Each such amendment made by the restated articles of incorporation has
been effected in conformity with the provisions of the Texas Business
Corporation Act and such restated articles of incorporation and each such
amendment made by the restated articles of incorporation were duly adopted by
the shareholders of the corporation on the 1st day of December, 1989.
ARTICLE FOUR
The number of shares outstanding at the time of such adoption was 1,000,
and the number of shares entitled to vote on the restated articles of
incorporation as so amended was 1,000, the holders of all of which have signed
a written consent to the adoption of such restated articles of incorporation as
so amended.
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ARTICLE FIVE
The articles of incorporation and all amendments and supplements thereto
are hereby superseded by the restated articles of incorporation set forth on
Exhibit A attached hereto which accurately copy the entire text thereof and as
amended as above set forth.
HENLEY MERGER CORP.
By: /s/ KEN DAVIDSON
-----------------------
Printed Name: Ken Davidson
-------------
Title: President
--------------------
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EXHIBIT A
RESTATED
ARTICLES OF INCORPORATION
OF
HENLEY INTERNATIONAL, INC.
Under the Texas Business Corporation Act, Henley International, Inc. (the
"Corporation") does hereby adopt the following Articles of Incorporation for
the Corporation:
ARTICLE I
Name
The name of the Corporation is Henley International, Inc.
ARTICLE II
Duration
The period of the duration of the Corporation is perpetual.
ARTICLE III
Purpose and Powers
The purpose or purposes for which the Corporation is organized are:
To transact any and all lawful business for which corporations may be
incorporated under the Texas Business Corporation Act (the "Act").
ARTICLE IV
Capital Stock
Section 1. Authorized Shares. The total number of shares of stock which
the Corporation shall have authority to issue is 30,000,000, divided into
classes as follows: (i) 10,000,000 shares of Preferred Stock, $1.00 par value
each (hereinafter referred to as "Preferred Stock"), and (ii) 20,000,000 shares
of Common Stock, $0.001 par value each (hereinafter referred to as "Common
Stock").
Section 2. Preferred Stock. The Preferred Stock shall have the
preferences, limitations, and relative rights as shall be established by the
Board of Directors by a resolution or resolutions adopted in compliance with
Article 2.13(B) of the Act, and may be issued in one or more series pursuant
to Section (IV)(3) hereof.
Section 3. Designation of Series. Series of Preferred Stock may be
established from time to time of any number of the
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shares of authorized Preferred Stock pursuant to any resolution or resolutions
adopted by the Board of Directors of the Corporation which establishes a
distinctive serial designation and fixes the relative rights and preference
thereof and otherwise satisfies the requirements of Article 2.13(B) of the Act.
The relative rights and preferences of Preferred Stock may vary between
any series established by the Board of Directors in any and all respects,
including, (by way of illustration but not by way of limitation) differences in
any of the following respects between the characteristics of the series being
established and the relative rights and preferences of any other series or
class of stock of the Corporation:
(a) Voting rights;
(b) The price at and the terms and conditions on which shares may be
redeemed;
(c) The rate, preferences, and priorities of any distributions from the
Corporation payable with respect to shares and the dates, terms, and
other conditions on which such distributions shall be payable and
whether such distributions are cumulative, noncumulative, or partially
cumulative;
(d) Rights upon the dissolution or liquidation of, or upon any
distribution of the assets of, the Corporation;
(e) The terms and conditions on which shares may be converted into shares
of any other class, classes or series of stock of the Corporation;
(f) The right to participate in the benefit of a sinking fund or purchase
fund to be applied to the purchase or redemption of shares; and
(g) The benefit of conditions or restrictions upon (i) the incurrence by
the Corporation or any subsidiary of any indebtedness (ii) the
issuance of any additional stock (including additional shares of such
series or of any other series) or (iii) the payment of distributions
or the making of other distributions on, and the purchase, redemption
or other acquisition by the Corporation or any subsidiary of any
outstanding stock of the Corporation.
Section 4. Increase or Decrease in Shares of a Series. Except where
otherwise provided by the Board of Directors of the Corporation at the time of
the designation of a series, the number of shares comprising such series may be
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increased or decreased (but not below the number of shares then outstanding)
from time to time by a resolution or resolutions adopted by the Board of
Directors of the Corporation.
Section 5. Reissuance of Shares of Preferred Stock. Shares of any series
of Preferred Stock which have been redeemed (whether through the operation of a
sinking fund or otherwise), purchased or otherwise acquired by the Corporation,
or which, if convertible or exchangeable, have been converted into or exchanged
for shares of stock, of any other class or classes, shall have the status of
authorized and unissued shares of Preferred Stock and may be reissued as part
of the series of which they were originally a part or may be reclassified or
reissued as part of any other series of Preferred Stock, all subject to the
conditions or restrictions adopted by the Board of Directors of the Corporation
when establishing the series of Preferred Stock.
Section 6. Common Stock. The Common Stock shall have the following
preferences, limitations, and relative rights:
(a) Each share of Common Stock shall entitle the holder thereof to one
vote, in person or by proxy, at any and all meetings of the
shareholders of the Corporation on any proposition before such
meetings.
(b) Subject to the rights of the holders of any Preferred Stock or any
series thereof, the holders of Common Stock shall be entitled to
receive, when, as and if declared by the Board of Directors of the
Corporation, out of funds legally available therefor, distributions
payable in cash, stock or otherwise.
(c) Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, and after the holders of the
Preferred Stock of each series shall have been paid in full the
amounts, if any, to which they respectively shall be entitled in
preference to the holders of the Common Stock, or a sum sufficient
for such payments in full shall have been set aside, the remaining
net assets of the Corporation shall be distributed pro rata to the
holders of Common Stock, to the exclusion of the holders of the
Preferred Stock other than holders of Preferred Stock who are
expressly entitled to participate in the distribution of the net
assets of the Corporation remaining after the distribution to holders
of the Preferred Stock which are in preference to the rights of the
holders of the Common Stock.
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ARTICLE V
Initial Consideration for Issuance of Shares
The Corporation will not commence business until it has received for the
issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00), consisting of money, labor done, or property actually received.
ARTICLE VI
Initial Registered Office and Agent
The street address of the initial registered office of the Corporation is
Nine Greenway Plaza, Suite 1717, Houston, Texas 77046, and the name of its
initial registered agent at such address is J. Randolph Ewing.
ARTICLE VII
Board of Directors
The initial Board of Directors of the Corporation consists of six (6)
directors, and the names and addresses of the persons to serve as the directors
of the Corporation until the first annual meeting of shareholders or until their
successors are elected and qualified are:
NAME ADDRESS
Roy M. Borrell, M.D. 2703 Highland Court
Sugar Land, Texas 77478
Kenneth W. Davidson 104 Industrial Boulevard
Sugar Land, Texas 77478
Peter Dorflinger 4000 Technology Drive
Angleton, Texas 77515
Ernest J. Henley 104 Industrial Boulevard
Sugar Land, Texas 77478
Henk Wafelman Enraf-Nonius
Rontgenweg
P. O. Box 483
2600 al delft
Route 0302
Holland
Richard O. Martin 4000 Technology Drive
Angleton, Texas 77515
The number of directors constituting the Board of Directors shall be fixed by,
or in the manner provided in, the Bylaws of the Corporation.
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ARTICLE VIII
Voting; Cumulative Voting Denied; Quorum
No shareholder shall have the right to cumulate his votes for the election
of directors, but each share of the Common Stock shall be entitled to one vote
in the election of each director and for all other purposes. Holders of
Preferred Stock shall not be entitled to vote on any matter unless otherwise
specifically required by law or provided for pursuant to the resolution
establishing the preferences, limitations, and relative rights of the Preferred
Stock. With respect to any matter which the affirmative vote of the holders of a
specified portion of the shares entitled to vote is required by the Act, the
act of the shareholders on that matter shall be the affirmative vote of the
holders of a majority of the shares entitled to vote on such matter, rather
than the affirmative vote otherwise required by the Act. Any action required to
be taken or which may be taken at an annual or special meeting of the
shareholders may be taken without a meeting, without prior notice and without a
vote if a written consent setting forth the action so taken shall be signed by
those shareholders holding the minimum number of votes that would be necessary
to take such action at a meeting at which the holders of all shares entitled to
vote on the action were present and voted. A quorum shall be present at a
meeting of shareholders if the holders of one-third (1/3) of the shares
entitled to vote are represented at a meeting in person or by proxy.
ARTICLE IX
Denial of Preemptive Rights
No shareholder of the Corporation or any other person shall have any
preemptive right whatsoever to acquire additional, unissued, or treasury shares
of the Corporation, or securities of the Corporation convertible into or
carrying a right to subscribe to or acquire shares or other securities of the
Corporation.
ARTICLE X
Bylaws
The initial Bylaws of the Corporation shall be adopted by its Board of
Directors. The power to alter, amend, or repeal the Bylaws or adopt new Bylaws
shall be exclusively vested in the Board of Directors.
ARTICLE XI
Limitation of Liability
A director of the Corporation shall not be liable to the Corporation or
its shareholders for monetary damages for any act or omission made by the
director in the director's capacity as a director, except for the following:
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(A) a breach of the director's duty of loyalty to the Corporation or its
shareholders;
(B) an act or omission not in good faith or that involves intentional
misconduct or a knowing violation of the law;
(C) a transaction from which the director received an improper benefit,
whether or not the benefit resulted from an action taken within the
scope of the director's office;
(D) an act or omission for which the liability of the director is expressly
provided by statute; or
(E) an act related to an unlawful stock repurchase or payment of dividend.
Any repeal or amendment of this Article by the shareholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the liability of a director of the Corporation existing at the
time of such repeal or amendment. In addition to the circumstances in which a
director shall not be liable pursuant to the provisions of this Article XI, a
director shall not be liable to the fullest extent permitted by any provision of
the statutes of Texas hereafter enacted that further limits the liability of a
director.
ARTICLE XII
Incorporator
The name and address of the incorporator is as follows:
NAME ADDRESS
Casey W. Doherty Nine Greenway Plaza
Suite 1717
Houston, Texas 77046
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 13th day
of December, 1989.
HENLEY INTERNATIONAL, INC.,
formerly known as Henley Merger
Corp.
By: /s/ Kenneth W. Davidson
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Kenneth W. Davidson
President
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