EXHIBIT 3(a)
[NOTE: THE FOLLOWING RESTATED ARTICLES OF ORGANIZATION HAVE BEEN FURTHER
RESTATED, FOR PURPOSES OF FILING THE SAME WITH THE SECURITIES AND EXCHANGE
COMMISSION ONLY, TO GIVE EFFECT TO ALL AMENDMENTS OF AND ADDITIONS TO THE
RESTATED ARTICLES OF ORGANIZATION OF ENESCO GROUP, INC. FILED WITH THE
SECRETARY OF THE COMMONWEALTH OF THE COMMONWEALTH OF MASSACHUSETTS PRIOR TO
THE DATE THESE RESTATED ARTICLES OF ORGANIZATION ARE FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. SIGNATURES FROM THE ORIGINAL HAVE BEEN
OMITTED.]
FEDERAL IDENTIFICATION
NO. 04-1864170
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108-1512
RESTATED ARTICLES OF ORGANIZATION
General Laws, Chapter 156B, Section 74
This certificate must be submitted to the Secretary of the
Commonwealth within sixty days after the date of the vote of stockholders
adopting the restated articles of organization. The fee for filing this
certificate is prescribed by General Laws, Chapter 156B, Section 114. Make
check payable to the Commonwealth of Massachusetts.
We, Jeffrey A. Hutsell , President
Peter R. Johnson , Clerk
of STANHOME INC.
(Exact name of corporation)
located at 333 Western Avenue, Westfield, Massachusetts 01085
(Street address of corporation in Massachusetts)
do hereby certify that the following amendments to the restatement of the
articles of organization of the corporation were duly adopted at a meeting
held on April 23, 1998, by vote of:
13,067,133 shares of common stock of 16,417,653 shares outstanding,
- ----------- --------------- -----------
(type, class & series, if any)
being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
1. The name by which the corporation shall be known is:
Enesco Group, Inc.
2. The purposes for which the corporation is formed are as
follows: 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.
3. The total number of shares and the par value, if any, of
each class of stock which the corporation is authorized
to issue is as follows:
WITHOUT PAR VALUE WITH PAR VALUE
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
Preferred None None
Common Stock None 80,000,000 $.125
4. If more than one class is authorized, a description of
each of the different classes of stock with, if any, the
preferences, voting powers, qualifications, special or
relative rights or privileges as to each class thereof
and any series now established:
"Not Applicable".
5. The restrictions, if any, imposed by the articles of
organization upon the transfer of shares of stock of any
class are as follows:
"None".
6. Other lawful provision, 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:
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
a 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.
We further certify that the foregoing restated articles of
organization effect no amendments to the articles of organization of the
corporation as heretofore amended.
(*If there are no such amendments, state "None".)
These Restated Articles of Organization shall become effective on
April 30, 1998 at 5:00 P.M.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 24th day of April in the year 1998.
/s/ Jeffrey A. Hutsell President
/s/ Peter R. Johnson Clerk