Exhibit 3(a) THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
Secretary of State Federal Identification
ONE ASHBURTON PLACE, BOSTON, MA 02108 No. 04-2729042
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, David A. Boucher ,President, and
J. John Brennan ,Clerk of
Interleaf, Inc.
(Name of Corporation)
located at Ten Canal Park, Cambridge, MA 02141 do hereby certify that the
following restatement of the articles of organization of the corporation was
duly adopted at a meeting held on August 14, 1987, by vote of:
7,606,789 or more shares of Common Stock out of 11,254,990 shares
outstanding, being at least two-thirds of each class of stock outstanding and
entitled to vote and of each class or series of stock adversely affected
thereby:
1. The name by which the corporation shall be known is:
Interleaf, Inc.
2. The purposes for which the corporation is formed are as follows:
See Continuation Sheet 2A
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left hand margin of at least 1 inch for binding. Additions to
more than one article may be continued on a single sheet so long as each article
requiring each such addition is clearly
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indicated.
3. The total number of shares and the par value, if any, of each class
of stock which the corporation os authorized to issue is as follows:
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WITHOUT PAR VALUE WITH PAR VALUE
----------------- --------------
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CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
- -------------- ---------------- ---------------- ---------
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Preferred 5,000,000 $.10
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Common 20,000,000 $.01
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*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:
See Continuation Sheet 4A
*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 provisions, if any, for the conduct and regulation of
the business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining, or regulating the powers of
the corporation, or of its directors or stockholders, or of any
class of stockholders:
See Continuation Sheet 6A
*If there are no such provisions, state "None."
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CONTINUATION SHEET 2A
To purchase, manufacture, produce, assemble, receive, lease or in any
manner acquire, hold, own, use, operate, install, maintain, service, repair,
process, alter, improve, market, import, export, sell, lease, assign, transfer
and generally to trade and deal in and with communications, data processing,
graphic processing, electronic and other equipment, devices, apparatus,
components, parts and supplies, products, machinery, systems, goods, wares,
merchandise and personal property of every kind, nature or description, tangible
or intangible, used or capable to being used for any purpose whatsoever; and to
engage and participate in any mercantile, manufacturing or trading business of
any kind or character.
To carry on any business or other activity which may be lawfully carried
on by a corporation organized under the Business Corporation Law of the
Commonwealth of Massachusetts, whether or not related to those referred to in
the foregoing paragraph.
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CONTINUATION SHEET 4A
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors of the corporation is hereby authorized, within the
limitations and restrictions stated in these Articles of Organization to
determine or alter the rights, preferences, powers, privileges and the
restrictions, qualifications and limitations granted to or imposed upon any
wholly unissued series of Preferred Stock, and the number of shares constituting
any such series and the designation thereof; and to increase or decrease the
number of shares constituting any such series; and to increase or decrease the
number of shares of any series subsequent to the issue of shares of that series,
but not below the number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares then
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
The authority of the Board of Directors with respect to each such series
of Preferred Stock shall include, without limitation of the foregoing, the right
to determine and fix:
(1) The distinctive designation of such series and the number of
shares to constitute such series;
(2) The rate at which dividends on the shares of such series shall be
declared and paid, or set aside for payment, whether dividends at the rate so
determined shall be cumulative and whether the shares of such series shall be
entitled to any participating or other dividends in addition to dividends at the
rate so determined, and if so on what terms;
(3) The right, if any, of the corporation to redeem shares of the
particular series and, if redeemable, the price, terms and manner of such
redemption;
(4) The special and relative rights and preferences, if any, and the
amount or amounts per share, which the shares of such series shall be entitled
to receive upon any voluntary or involuntary liquidation, dissolution or winding
up of the corporation;
(5) The terms and conditions, if any, upon which shares of such series
shall be convertible into, or exchangeable for, shares of stock of any other
class or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
(6) The obligation, if any, of the corporation to retire or purchase
shares of such series pursuant to a sinking fund or fund of a similar nature or
otherwise, and the terms and conditions of such obligation;
(7) Voting rights, if any;
(8) Limitations, if any, on the issuance of additional shares of such
series or any
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shares of any other series of Preferred Stock; and
CONTINUATION SHEET 4A (CONTINUED)
(9) Such other preferences or restrictions or qualifications thereof as
the Board of Directors may deem advisable and not inconsistent with the law and
the provisions of these Articles of Organization.
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CONTINUATION SHEET 6A
6A. AMENDMENT OF BY-LAWS
The directors may make, amend, or repeal the By-Laws of the corporation in
whole or in part, except with respect to any provisions thereof which by law or
these Articles of Organization or the By-Laws requires action by the
stockholders.
6B. STOCKHOLDER MEETINGS
Meetings of the stockholders of the corporation may be held anywhere in
the United States.
6C. AUTHORITY
The corporation shall have the power to be a partner in any business
enterprise which this corporation would have the power to conduct by itself.
6D. LIMITATION OF DIRECTOR LIABILITY
To the fullest extent permitted by Chapter 156B of the Massachusetts
General Laws, as it may be amended from time to time, a director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability.
6E. CLASSIFIED BOARD OF DIRECTORS
This Article is inserted for the management of the business and for the
conduct of the affairs of the Corporation, and it is expressly provided that it
is intended to be in furtherance and not in limitation or exclusion of the
powers conferred by the statutes of the Commonwealth of Massachusetts.
Section 1. Number of Directors. Subject to the rights of the holders of
Preferred Stock of the Corporation then outstanding to elect additional
directors under specified circumstances, the number of directors of the
Corporation shall not be less than three nor more than thirteen (13). The exact
number of directors within the minimum and maximum limitations specified in the
preceding sentence shall be fixed from time to time pursuant to a resolution
adopted by a majority of directors then in office, although less than a quorum.
Section 2. Classes of Directors. The Board of Directors shall be and is
divided into three classes: Class I, Class II and Class III. No one class shall
have more than one director more than any other class. If a fraction is
contained in the quotient arrived at by dividing the authorized number of
directors by three, then, if such fraction is one-third, the extra director
shall be a
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member of Class III and, if such fraction is two-thirds, one of the extra
directors shall be a member of Class III and one of the extra directors shall be
a member of Class II, unless otherwise provided for from time to time by
resolution adopted by a majority of the directors then in office, although less
than a quorum.
Section 3. Election of Directors. Elections of directors need not be
by written ballot except as and to the extent provided in the By-Laws of the
Corporation.
Section 4. Terms of Office. Each director shall serve for a term ending on
the date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that each initial director in Class I
shall serve for a term ending on the date of the Corporations's 1988 annual
meeting; each initial director in Class II shall serve for a term ending on the
date of the Corporation's 1989 annual meeting; and each initial director in
Class III shall serve for a term ending on the date of the Corporation's 1990
annual meeting.
Section 5. Allocation of Directors Among Classes in the Event of Increases
or Decreases in the Number of Directors. In the event of any increase or
decrease in the authorized number of directors, (i) each director then serving
as such shall nevertheless continue as director of the class of which he is a
member until the expiration of his current term or his prior death, retirement
or resignation and (ii) the newly created or eliminated directorships resulting
from such increase or decrease shall be apportioned by the Board of Directors
among the three classes of directors so as to ensure that no one class has more
than one director more than any other class. To the extent possible, consistent
with the foregoing rule, any newly created directorships shall be added to those
classes whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of office are to expire at the earliest dates
following such allocator, unless otherwise provided for from time to time by
resolution adopted by a majority of the directors then in office, although less
than a quorum.
Section 6. Quorum; Action of Meeting. A majority of the directors at any
time in office shall constitute a quorum for the transaction of business and, if
at any meeting of the Board of Directors there shall be less than such a quorum,
a majority of those present may adjourn the meeting from time to time. Every act
or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the Board
of Directors unless a greater number is required by law, by the By-Laws of the
Corporation or by these Articles of Organization.
Section 7. Removal. Subject to the rights of the holders of any Preferred
Stock then outstanding, any director or the entire Board of Directors may be
removed from office, with or without cause, at any time by the affirmative vote
of the holders of at least eighty percent (80%) of the voting power of all the
shares of the Corporation entitled to vote generally in the election of
directors voting together as a single class.
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Section 8. Tenure. Notwithstanding any provisions to the contrary
contained herein, each director shall serve until a successor is elected and
qualified or until his death, resignation or removal.
Section 9. Vacancies. Subject to the rights of the holders of any
Preferred Stock then outstanding, any vacancies in the Board of Directors
occurring for any reason and any newly created directorships resulting from any
increase in the number of directors may be filled only by the Board of Directors
acting by the affirmative vote of at least a majority of the directors then in
office, although less than a quorum. Each director so chosen shall hold office
until the next election of the class for which such director shall have been
chosen and until his successor shall be elected and qualified or until his
earlier death, resignation or removal.
Section 10. Stockholder Nominations and Introduction of Business, Etc.
Advance notice of stockholder nominations for election of directors and other
business to be brought by stockholders before a meeting of stockholders shall be
given in the manner provided in the By-Laws of the Corporation and the
appointment of judges of election shall be made in the manner provided in the
By-Laws of the Corporation.
Section 11. Amendments to Article. Notwithstanding any other provisions of
law, these Articles of Organization or the By-Laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least eighty percent (80%) of the votes
which all the stockholders would be entitled to cast at any annual election of
directors or class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Article; provided that such eighty
percent (80%) vote shall not be required, and only the vote otherwise provided
by law, by the By-Laws of the Corporation or by these Articles of Organization
shall be required, for any amendment, repeal or adoption previously approved by
the Board of Directors and by each Disinterested Director (as defined in Article
6F).
6F. FAIR PRICE PROVISION
The stockholder vote required to approve Business Combinations
(hereinafter defined) shall be as set forth in this Article.
Section 1. Definition of "Business Combination." The term "Business
Combination" as used in this Article shall mean any of the following:
(a) Any merger or consolidation of the Corporation or any Subsidiary
with (i) any Interested Stockholder or (ii) any other corporation
(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 (in one
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transaction or a series of transactions) to or with any Interested
Stockholder or any Affiliate or Associate of any Interested
Stockholder of all or a Substantial Part of the assets of the
Corporation or any Subsidiary thereof; or
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(c) The issuance, exchange or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate or Associate of any Interested
Stockholder in exchange for cash, securities or other consideration
(or a combination thereof) having an aggregate Fair Market Value of,
equal to or in excess of a Substantial Part of the assets of the
corporation; or
(d) The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(e) 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 into or otherwise
involving an Interested Stockholder or any Affiliate or Associate of
an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned
by any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(f) Any agreement, contract or other arrangement with an Interested
Stockholder or any Affiliate or Associate of an Interested
Stockholder (or in which the Interested Stockholder or any Affiliate
or Associate of an Interested Stockholder has an interest other than
proportionately as a stockholder) providing for any one or more of
the actions specified in subsections (a) to (e) of this Section 1.
Section 2. Vote for Certain Transactions. Except where a higher vote may
be required by law or these Articles of Organization, the Corporation may, by
vote of a majority of the stock outstanding and entitled to vote thereon (or if
there are two or more classes of stock entitled to vote as separate classes,
then by vote of a majority of each such class of stock outstanding) (i)
authorize the sale, lease or exchange of all or substantially all of its
property and assets, including its goodwill, pursuant to Section 75 of Chapter
156B of the Massachusetts General Laws (or any successor provision thereto), as
amended from time to time, (ii) approve an agreement of merger or consolidation
pursuant to Section 78 of Chapter 156B of the Massachusetts General Laws (or any
successor provision thereto), as amended from time to time, and (iii) authorize
the dissolution of the Corporation pursuant to Section 100 of Chapter 156B of
the Massachusetts General Laws (or any successor provision thereto), as amended
from time to time.
Section 3. Higher Vote for Business Combinations. In addition to any
affirmative vote required by law, the By-Laws of the Corporation or these
Articles of Organization, and except as otherwise expressly provided in Section
4 of this Article, any Business Combination shall require the affirmative vote
of the holders of at least eighty percent (80%) of the votes which all
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stockholders would be entitled to cast at any annual election of Directors or
class of Directors (the "Voting Stock"). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law or in any agreement with any securities
exchange or otherwise.
Section 4. When Higher Vote Is Not Required. The provisions of Section 3
of this Article 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 and any other provision of the Articles of Organization or
the By-Laws of this Corporation, if the conditions specified in either of the
following subsections (a) or (b) are met:
(a) Approval by Disinterested Directors. The Business Combination shall
have been approved by a majority of the Disinterested Directors.
(b) Price and Procedure Requirements. All of the following seven
conditions shall have been met:
(i) The transaction constituting the Business Combination shall
provide that the holders of Common Stock receive, in exchange
for their stock, per share consideration (consisting of the
cash and the Fair Market Value, as of the date of the
consummation of the Business Combination, of consideration
other than cash) at least equal to the highest of the
following:
A. If applicable, the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Stockholder for any shares of Common Stock in connection
with the direct or indirect acquisition by the
Interested Stockholder of shares of Common Stock which
were acquired (1) within the two-year period immediately
prior to the first public announcement of the proposed
Business Combination (the "Announcement Date") or (2) in
the transaction in which it became an Interested
Stockholder, whichever is higher;
B. The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (the
"Determination Date"), whichever is higher; and
C. If applicable, the price per share equal to the Fair
Market Value per share of Common Stock determined
pursuant to paragraph B immediately preceding,
multiplied by the ratio of (1) the highest per share
price (including any brokerage commissions, transfer
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taxes and soliciting dealers' fees) paid by or on behalf
of the Interested Stockholder for any share of Common
Stock in connection with the direct or indirect
acquisition by the Interested Stockholder of shares of
Common Stock which were acquired within the two-year
period immediately prior to the Announcement Date to (2)
the Fair Market Value per share of Common Stock on the
first date in such two-year period on which the
Interested Stockholder beneficially owned any shares of
Common Stock.
All per share prices shall be adjusted to reflect any
intervening stock splits, stock dividends and reverse
stock splits.
(ii) If the transaction constituting the Business Combination shall
also provide that the holders of any class of outstanding
Voting Stock, other than Common Stock, if any, are to receive
consideration in exchange for their stock, the per share
consideration (consisting of the cash and the Fair Market
Value, as of the date of the consummation of the Business
Combination, of consideration other than cash) shall be at
least equal to the highest of the following (it being intended
that the requirements of this subsection (b)(ii) shall be
required to be met with respect to every class of outstanding
Voting Stock, whether or not the Interested Stockholder
beneficially owns any shares of a particular class of Voting
Stock):
A. If applicable, the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of such class of Voting Stock
in connection with the direct or indirect acquisition by
the Interested Stockholder of beneficial ownership of
such share which was acquired (1) within the two-year
period immediately prior to the Announcement Date or (2)
in the transaction in which it became an Interested
Stockholder, whichever is higher;
B. If applicable, the highest preferential amount per share
to which the holders of shares of such class of Voting
Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of
the Corporation, regardless of whether the Business
Combination to be consummated constitutes such an event;
C. The Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination
Date, whichever is higher; and
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D. If applicable, the price per share equal to the Fair
Market Value per share of such class of Voting Stock
determined pursuant to paragraph C immediately
preceding, multiplied by the ratio of (1) the highest
per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by or
on behalf of the stockholder for any share of such class
of Voting Stock in connection with the direct or
indirect acquisition by the Interested Stockholder of
beneficial ownership of shares which were acquired
within the two-year period immediately prior to the
Announcement Date to (2) the Fair Market Value per share
of such class of Voting Stock on the first day in such
two-year period on which the Interested Stockholder
beneficially owned any shares of such class of Voting
Stock.
All per share prices shall be adjusted for intervening
stock splits, stock dividends and reverse stock splits.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as was previously paid by
or on behalf of the Interested Stockholder in connection with
its direct or indirect acquisition of beneficial ownership of
shares of such class of Voting Stock. If the Interested
Stockholder beneficially owns shares of any class of Voting
Stock which were acquired with varying forms of consideration,
the form of consideration to be received by holders of such
class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of Voting
Stock beneficially owned by the Interested Stockholder.
(iv) After the Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination (A) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to
declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any
outstanding preferred stock; (B) there shall have been (1) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock) except as approved by a majority of the
Disinterested Directors, and (2) an increase in such annual
rate of dividends (as necessary to prevent any such reduction)
in the event of any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so
to increase such annual rate is approved by a majority of the
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Disinterested Directors; and (C) such Interested Stockholder
shall not have become the beneficial owner of any shares of
Voting Stock except as part of the transaction in which it
became an Interested Stockholder and except in a transaction
which after giving effect thereto, would not result in any
increase in the Interested Stockholder's percentage beneficial
ownership of any class of Voting Securities.
(v) After the Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have
received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of
the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions replacing
such Act, rules or regulations) shall be mailed by the
Interested Stockholder to all stockholders of the Corporation
at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or
subsequent provisions).
(vii) Such Interested Stockholder shall not have made any major
change in the Corporation's business or equity capital
structure without the approval of the majority of the
Disinterested Directors.
Section 5. Certain Definitions. For the purposes of this Article:
(a) The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprising 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 Voting Stock of the Corporation.
(b) 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 or which:
(i) Is at such time the beneficial owner, directly or indirectly,
of shares of the
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Corporation having more than ten percent (10%) of the voting
power of the then outstanding Voting Stock; or
(ii) At any time within the two-year period immediately prior to
such time was the beneficial owner, directly or indirectly, of
shares of the Corporation having more than ten percent (10%)
of the voting power of the then outstanding Voting Stock; or
(iii) Is at any time an assignee of or has otherwise succeeded to
the beneficial ownership of any shares of Voting Stock which
were at any time within the two-year period immediately prior
to such time beneficially owned by any Interested Stockholder
if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not
involving a public offering within the meaning of the
Securities Act of 1933.
(c) A person shall be a "beneficial owner" of any shares of Voting
Stock:
(i) Which are beneficially owned, directly or indirectly, by such
person or any of its Affiliates or Associates;
(ii) Which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether or not such right is
exercisable immediately) pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options or
otherwise or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) Which are 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 Voting Stock.
(d) For the purposes of determining whether a person is an Interested
Stockholder pursuant to subsection 4(b), the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed
beneficially owned by an Interested Stockholder through application
of subsection 5(c) but shall not include any other shares of Voting
Stock which may be issuable pursuant to any agreement, arrangement
or understanding, or upon the exercise of conversion rights,
exchange rights, warrants or options or otherwise.
(e) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect
on June 19, 1987 (the term registrant in said
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Rule 12b-2 meaning, in this case, the Corporation).
(f) "Beneficially owned" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on June 19, 1987.
(g) "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the
Corporation.
(h) "Disinterested Director" means any member of the Board of Directors
of the Corporation who is unaffiliated with, and not a
representative of, an Interested Stockholder or any Affiliate or
Associate of an Interested Stockholder and was a member of the Board
of Directors on June 19, 1987 or prior to the time that the
Interested Stockholder or any Affiliate or Associate of an
Interested Stockholder became an Interested Stockholder, and any
successor of a Disinterested Director who is unaffiliated with, and
not a representative of, the Interested Stockholder or any Affiliate
or Associate of an Interested Stockholder and is recommended or
elected to succeed a Disinterested Director by a majority of the
Disinterested Directors then on the Board of Directors.
(i) "Fair Market Value" means: (i) 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 Securities Exchange
Act of 1934 on which such stock is listed or, if such stock is not
listed on any such exchange, the highest closing sale price or the
highest closing bid quotation, respectively, with respect to a share
of such stock during the 30-day period preceding the date in
question on the National Market System or the National Association
of Securities Dealers, Inc. Automated Quotations System, as the case
may be, or any 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 Disinterested
Directors in good faith; and (ii) in the case of property other than
cash or stock, the fair market value of such property on the date in
question as determined by the Board of Directors in good faith.
(j) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash" as used in
subsection 4(b) of this Article shall include the shares of Common
Stock and/or the shares of any other class of outstanding Voting
Stock retained by the holders of such shares.
(k) "Substantial Part" of the Corporation shall mean more than ten
percent (10%) of
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the fair market value of the total assets of the Corporation as of
the end of its most recent fiscal quarter ending prior to the time
the determination is made.
Section 6. Determinations by Disinterested Directors. The Disinterested
Directors shall have the power and duty to determine for purposes of this
Article, on the basis of information known to them after reasonable inquiry, all
facts necessary to determine compliance with this Article, including, without
limitation, (a) whether a person is an Interested Stockholder, (b) the number of
shares of Voting Stock beneficially owned by any person, (c) whether a person is
an Affiliate or Associate of another, (d) whether the requirements of subsection
4(b) have been met with respect to any Business Combination and (e) whether the
assets which are the subject of any Business Combination equal or exceed, or
whether the consideration to be received from the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
equals or exceeds, a Substantial Part of the assets of the Corporation. Any such
determination made in good faith shall be binding and conclusive on all persons
for all purposes.
Section 7. No Duty to Approve Business Contributions. Nothing contained in
this Article shall be construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Section 8. Minimum Consideration. Consideration for shares to be paid to
any stockholder pursuant to this Article shall be the minimum consideration
payable to the stockholder and shall not limit a stockholder's right under any
provision of law or otherwise to receive greater consideration for any shares of
the Corporation.
Section 9. Fiduciary Obligations. The fact that any Business Combination
complies with the provisions of section 4 of this Article shall not be construed
to impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the stockholders of the Corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors or any member thereof with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
Section 10. Amendments to Article. Notwithstanding any other provisions of
law, these Articles of Organization or the By-Laws of the Corporation, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least eighty percent (80%) of the votes
which all the stockholders would be entitled to cast at any annual election of
directors or class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, this Article; provided that such eighty
percent (80%) vote shall not be required, and only the vote otherwise provided
by law, by the By-Laws of the Corporation or by these Articles of Organization
shall be required, for any amendment, repeal or adoption previously approved by
the Board of Directors and by each Disinterested Director.
-17-
(Degree)We further certify that the foregoing restated articles of
organization effect no amendments to the articles of organization of the
corporation _____________ amended, except amendments to the following articles
sixth _______________________________________________________________________.
((Degree)If there is no such amendment, state "None")
Briefly describe amendments in space below:
Article 6 is amended by the addition of Articles 6D, 6E and 6F. Article 6D
provides for the elimination of the personal liability of directors for monetary
damages, except under certain circumstances. Article 6E provides for the
classification of the Board of Directors into three classes and amended
procedures for changing the number of directors, removing directors and filling
vacancies on the Board of Directors. Article 6F contains a "fair price"
provision providing for minimum price, form of consideration and procedural
requirements, or alternatively, the affirmative vote of 80% of the holders of
the outstanding stock entitled to vote in connection with certain business
combinations involving a 10% stockholder, or a vote of a majority of the holders
of the outstanding stock entitled to vote in connection with corporate actions
which satisfy or do not trigger the fair price provision.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this day of September in this year 1987.
_____________________________________________________ President/Vice President
David A. Boucher
_____________________________________________________ Clerk/Assistant Clerk
J. John Brennan
-18-
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
I hereby approve the within
restated articles of organization and,
the filing fee in the amount of $
having been paid, said articles are
deemed to have been filed with me
this day of ,
1987.
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
Photo Copy of Restated Articles Of Organization
To Be Sent To:
Ellen Chiniara, Esquire
-----------------------------------------------
Hale and Dorr
-----------------------------------------------
60 State Street
-----------------------------------------------
Boston, MA 02109
-----------------------------------------------
-19-
Telephone: (617)742-9100
-20-
THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
Secretary of State Federal Identification
ONE ASHBURTON PLACE, BOSTON, MA 02108 No. 04-2729042
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
----
We, David A. Boucher ,President, and
J. John Brennan ,Clerk of
Interleaf, Inc.
(Name of Corporation)
located at Ten Canal Park, Cambridge, MA 02141 do hereby certify that at a
meeting of the directors of the corporation held on July 11, 1988 , the
following vote establishing and designating a series of a class of stock and
determining the relative rights and preferences thereof was duly adopted:
VOTED: That, pursuant to the authority conferred in the Board of Directors
of the Corporation in accordance with the provisions of its Articles of
Organization, a series of Preferred Stock, $.10 par value (the "Preferred
Stock"), of the Corporation be, and it hereby is established, and that the
designation and number of shares, and relative rights, preferences and
limitations thereof are fixed as follows:
(See Attachment A)
Note: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be
-21-
numbered 2A, 2B, etc. Continuation sheets must have a left-hand margin of 1 inch
wide for binding and shall be 8 1/2 x 11. Only one side should be used.
ATTACHMENT A
to
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A SERIES OF A CLASS OF STOCK
of
INTERLEAF, INC.
To be designated
Series A Junior Participating Preferred Stock
----------------------------------------
Interleaf, Inc., a Massachusetts corporation (the "Corporation"), pursuant
to the authority conferred in the Board of Directors of the Corporation in
accordance with the provisions of the Article of Organization, certifies that
the Board of Directors of the Corporation, at a meeting duly called and held on
July 11, 1988, duly voted to establish a series of Preferred Stock, $.10 par
value (the "Preferred Stock"), of the Corporation and that the designation and
number of shares, and relative rights, preferences and limitations thereof are
fixed as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 200,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A
-22-
Preferred Stock, in preference to the holders of Common Stock, par
value $.0l per share (the "Common Stock"), of the Corporation, and
of any other junior stock, shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds of the
Corporation legally available for the payment of dividends,
quarterly dividends payable in cash on March 31, June 30, September
30 and December 31 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 Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 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 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 Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount
to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of 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 Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock) and the Corporation shall pay such dividend or distribution
on the Series A Preferred Stock before the dividend or distribution
declared on the Common Stock is paid or set apart; provided that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1 per share on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date
-23-
next preceding the date of issue of such shares, 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 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 and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata 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 Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A 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, in the Articles of
Organization or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) (i) If any time dividends on any Series A Preferred Stock
shall be in arrears in an amount equal to six quarterly dividends
thereon, the holders of the Series A Preferred Stock, voting as a
separate series from all other series of
-24-
Preferred Stock and classes of capital stock, shall be entitled to
elect two members of the Board of Directors in addition to any
Directors elected by any other series, class or classes of
securities and the authorized number of Directors will automatically
be increased by two. Promptly thereafter, the Board of Directors of
this Corporation shall, as soon as may be practicable, call a
special meeting of holders of Series A Preferred Stock for the
purpose of electing such members of the Board of Directors. Said
special meeting shall in any event be held within 45 days of the
occurrence of such arrearage. (ii) During any period when the
holders of Series A Preferred Stock, voting as a separate series,
shall be entitled and shall have exercised their right to elect two
Directors, then and during such time as such right continues (a) the
then authorized number of Directors shall be increased by two, and
the holders of Series A Preferred Stock, voting as a separate
series, shall be entitled to elect the additional Director so
provided for, and (b) each such additional Director shall not be a
member of any existing class of the Board of Directors, but shall
serve until the next annual meeting of stockholders for the election
of Directors, or until his successor shall be elected and shall
qualify, or until his right to hold such office terminates pursuant
to the provisions of this Section 3(C).
(iii) A Director elected pursuant to the terms hereof
may be removed with or without cause by the holders of Series
A Preferred Stock entitled to vote in an election of such
Director.
(iv) If, during any interval between annual meetings of
stockholders for the election of Directors and while the
holders of Series A Preferred Stock shall be entitled to elect
two Directors, there is no such Director in office by reason
of resignation, death or removal, then, promptly thereafter,
the Board of Directors shall cause a special meeting of the
holders of Series A Preferred Stock for the purpose of filling
such vacancy and such vacancy shall be filled at such special
meeting. Such special meeting shall in any event be held
within 45 days of the occurrence of such vacancy.
(v) At such time as the arrearage is fully cured, and
all dividends accumulated and unpaid on any shares of Series A
Preferred Stock outstanding are paid, and, in addition
thereto, at least one regular dividend has been paid
subsequent to curing such arrearage, the term of office of any
Director elected pursuant to this Section 3(C), or his
successor, shall automatically terminate, and the authorized
number of Directors shall automatically decrease by two, the
rights of the holders of the shares of the Series A Preferred
Stock to vote as provided in this Section 3(C) shall cease,
subject to renewal from time to time upon the same terms and
-25-
conditions, and the holders of shares of the Series A
Preferred Stock shall have only the limited voting rights
elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise provided by
law, holders of Series A 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.
-26-
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A 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 Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends, 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
the Series A Preferred Stock, except dividends paid ratably on the
Series A 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 junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such junior
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 Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A 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.
(B) 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 Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled
-27-
promptly 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 subject to the conditions
and restrictions on issuance set forth herein, in the Articles of Organization,
or in any other Certificates of Vote of Directors Establishing a Series of a
Class of Stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (1) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock unless, prior
thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date
of such payment, provided that the holders of shares of Series A Preferred
Stock shall be entitled to receive an aggregate amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled
upon such liquidation, dissolution or winding up.
(B) Neither the consolidation, merger or other business combination
of the Corporation with or into any other corporation nor the sale, lease,
exchange or conveyance of all or any part of the property, assets or
business of the Corporation shall be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this Section
6.
(C) In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment
of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of
paragraph (A) of this Section 6 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 7. Consolidation, Merger, etc. Notwithstanding anything to the
contrary contained herein, in case the Corporation shall enter into any
consolidation, merger, combination
-28-
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 each share of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 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 declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common
Stock, 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 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 Preferred Stock shall not
be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of the Preferred Stock issued either before or after the
issuance of the Series A Preferred Stock, unless the terms of any such series
shall provide otherwise.
Section 10. Amendment. The Articles of Organization of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
Section 11. Fractional Shares. Series A 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 have the benefit of all other rights of holders
of Series A Preferred Stock.
-29-
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this day of July in this year 1988.
_____________________________________________________ President/Vice President
David A. Boucher
_____________________________________________________ Clerk/Assistant Clerk
J. John Brennan
-30-
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate
and, the filing fee in the amount of $
having been paid, said certificate is hereby filed
this day of , 19
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Christopher P. Holsing, Esq.
-------------------------------------
Hale and Dorr
-------------------------------------
60 State Street
-------------------------------------
Boston, Massachusetts 02109
-------------------------------------
Telephone: (617)742-9100 Ext. 2514
-------------------------------------
Copy Mailed
-31-
THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
Secretary of State Federal Identification
ONE ASHBURTON PLACE, BOSTON, MA 02108
No. 04-2729042
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
----------
We, David A. Boucher ,President, and
John K. Hyvnar ,Clerk of
Interleaf, Inc.
(Name of Corporation)
located at Ten Canal Park, Cambridge, MA 02141 do hereby certify that at a
meeting of the directors of the corporation held on September 22, 1989, the
following vote establishing and designating a series of a class of stock and
determining the relative rights and preferences thereof was duly adopted:
VOTED: That pursuant to the authority vested in the Board of Directors of
the Corporation in accordance with the provisions of its Articles of
Organization, as amended, a series of Preferred Stock of the Corporation be and
it hereby is created, and that the designation and amount thereof and the voting
powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof shall be as set forth on Exhibit A attached hereto.
(See Attachment A)
Note: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be numbered 2A, 2B, etc. Continuation sheets must
have a left-hand margin of 1 inch wide for binding and shall be 8 1/2 x 11. Only
one side should be used.
-32-
EXHIBIT A
Section 1. Designation and Amount. The shares of this series of preferred
stock of Interleaf, Inc. (the "Company") shall be designated as "Senior Series B
Convertible Preferred Stock" ("Series B Preferred Stock") and the number of
shares constituting such series shall be 2,142,857 with a par value per share of
$.l0.
Section 2. Dividends. No dividends shall be declared, set aside or paid
upon outstanding shares of any class of Common Stock of the Company, other than
a dividend to which the provisions of Section 5(d) apply, unless a dividend
shall be declared, set aside or paid, as the case may be, upon the Series B
Preferred Stock, such that the holder of each share of Series B Preferred Stock
shall be entitled to that amount as would be declared, set aside or paid, as the
case may be, on the number of shares of Common Stock into which each such share
of Series B Preferred Stock could be converted pursuant to the provisions of
Section 5 hereof, such number determined as of the record date for the
determination of holders of Common Stock entitled to receive such dividend.
Section 3. Liquidation, Dissolution or Winding Up.
(a) In the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the following shall apply:
(i) First, holders of outstanding shares of Series B Preferred
Stock shall be entitled to be paid out of the assets of the Company
available for distribution to stockholders, whether such assets are
capital, surplus, or earnings, an amount equal to $7.00 per share
(adjusted appropriately for stock splits, stock dividends and the
like), before any payment shall be made to the holders of any class
of Common Stock or of any other stock ranking on liquidation junior
to the Series B Preferred Stock. If, upon any liquidation,
dissolution or winding up of the Company, the amounts payable with
respect to the Series B Preferred Stock and any other stock ranking
as to any such distribution on a parity with the Series B Preferred
Stock are not paid in full, the holders of the Series B Preferred
Stock and such other stock shall share ratably in any distribution
of assets in proportion to the full respective preferential amounts
to which they are entitled.
(ii) Second, provided the holders of the outstanding shares of
Series B Preferred Stock have received all of the amounts specified
in clause (i) of this subsection (a), and subject to the rights of
holders of any other class or series of capital stock of the Company
ranking as to liquidation preference senior to the Common Stock and
junior to or on a parity with the Series B Preferred Stock, the
holders of outstanding shares of Common Stock shall be entitled to
be paid out of the assets of the Company available for distribution
to stockholders, whether such assets are capital, surplus or
earnings, an amount per share of such Common
-33-
Stock equal to a fraction, the numerator of which is the aggregate
amount paid to the holders of the outstanding shares of Series B
Preferred Stock pursuant to clause (i) of this subsection (a) and
the denominator of which is equal to the number of shares of Common
Stock issuable upon the conversion of the outstanding shares of
Series B Preferred Stock immediately prior to any such liquidation,
dissolution or winding up of the Company.
(iii) Third, provided that the holders of the outstanding
shares of Series B Preferred Stock have received all of the amounts
specified in clause (i) of this subsection (a), and provided,
further, that the holders of the outstanding shares of Common Stock
have received all of the amounts specified in clause (ii) of this
subsection (a), the holders of the outstanding shares of Series B
Preferred Stock shall share ratably with the holders of the
outstanding shares of Common Stock in the distribution of the assets
of the Company remaining for distribution to stockholders, whether
such assets are capital, surplus or earnings (the "Residual
Assets"), as if each share of Series B Preferred Stock had been
converted into the number of shares of Common Stock issuable upon
the conversion of a share of Series B Preferred Stock immediately
prior to any such liquidation, dissolution or winding up of the
Company (taking into account the rights of holders of any other
class or series of capital stock of the Company entitled to share in
such distribution of the Residual Assets).
(b) A consolidation or merger of the Company or a sale of all or
substantially all of the assets of the Company or other similar transaction
shall be regarded as a liquidation, dissolution or winding up of the affairs of
the Company within the meaning of this Section 3; provided, however, that each
holder of Series B Preferred Stock shall have the right to elect the benefits of
the provisions of Section 5(g) hereof in lieu of receiving payment in
liquidation, dissolution or winding up of the Company pursuant to this Section
3.
(c) In the event of a liquidation, dissolution or winding up of the
Company resulting in the availability of assets other than cash for distribution
to the holders of the Series B Preferred Stock, the holders of the Series B
Preferred Stock shall be entitled to a distribution of cash and/or assets equal
in value to the liquidation preference and other distribution rights stated in
Section 3(a). In the event that such distribution to the holders of the Series B
Preferred Stock shall include any assets other than cash, the following
provisions shall govern. The Board of Directors shall first determine the value
of such assets for such purpose, and shall notify all holders of shares of
Series B Preferred Stock of such determination. The value of such assets for
purposes of the distribution under this paragraph 3(c) shall be the value as
determined by the Board of Directors in good faith and with due care, unless the
holders of a majority of the outstanding shares of Series B Preferred Stock
shall object thereto in writing within 15 days after the date of such notice. In
the event of such objection, the valuation of such assets for purposes of such
distribution shall be determined by an arbitrator selected by the objecting
stockholders and the Board of Directors, or in the event a single arbitrator
cannot be agreed upon within 10
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days after the written objection sent by the objecting stockholders in
accordance with the previous sentence, the valuation of such assets shall be
determined by arbitration in which (i) the objecting stockholders shall name in
their notice of objection one arbitrator, (ii) the Board of Directors shall name
a second arbitrator within 15 days from the receipt of such notice, (iii) the
two arbitrators thus selected shall select a third arbitrator, and (iv) the
three arbitrators thus selected shall determine the valuation of such assets for
purposes of such distribution by majority vote. The costs of such arbitration
shall be borne by the Company and by the holders of the Series B Preferred Stock
(on a pro rata basis out of the assets otherwise distributable to them) as
follows: (i) if the valuation as determined by the arbitrators is greater than
90% of the valuation as determined by the Board of Directors, the holders of the
Series B Preferred Stock shall pay the costs of the arbitration, and (ii)
otherwise, the Company shall bear the costs of the arbitration.
Section 4. Voting Rights.
(a) Except as otherwise expressly provided herein (including without
limitation the provisions of Sections 4(b) and 4(c) below) or as required by
law, the holders of shares of the Series B Preferred Stock shall be entitled to
vote on all matters submitted to a vote of the holders of Common Stock, voting
together with the holders of Common Stock as a single class. Each share of
Series B Preferred Stock shall be entitled to the number of votes equal to the
number of shares of Common Stock into which such share of Series B Preferred
Stock could be converted pursuant to the provisions of Section 5 hereof on the
record date for determining the stockholders entitled to vote, rounded to the
nearest one-tenth of a vote..
(b) So long as any shares of Series B Preferred Stock are outstanding, the
consent of the holders of at least a majority of the outstanding shares of
Series B Preferred Stock, given in person or by proxy, either in writing (if
permitted by law) or at a special meeting called for that purpose, at which the
holders of Series B Preferred Stock shall vote separately as a class, shall be
necessary for effecting, validating or authorizing any one or more of the
following:
(i) the amendment, alteration or repeal of any of the provisions of
the Articles of Organization, as amended, of the Company, or any amendment
thereto or any other certificate filed pursuant to law (including any such
amendment, alteration or repeal effected by any merger or consolidation to
which the Company is a party), which would adversely affect any of the
rights, powers, privileges or preferences of outstanding shares of Series
B Preferred Stock;
(ii) the authorization or issuance of any additional class of stock
or equity security ranking prior to or on a parity with the Series B
Preferred Stock as to liquidation preference or dividend rights or prior
to the Series B Preferred Stock as to voting rights, or any increase in
the authorized amount of any class of stock ranking prior to or on a
parity with the Series B Preferred Stock as to liquidation preference or
dividend rights (including any such authorization or increase effected by
a merger or consolidation to which the Company is a party and including
any increase in the authorized amount of
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Series B Preferred Stock); provided, however, that this restriction shall
not apply to any such authorization or issuance of Common stock or the
Company's Series A Junior Participating Preferred Stock (the "Series A
Preferred Stock") issued upon exercise of Rights issued pursuant to the
Rights Agreement (as defined below);
(iii) for a period of two years commencing on the date of the filing
of this vote, the purchase, redemption or acquisition (or payment into or
setting aside for a sinking fund for any such purpose) of any of the
Common stock of any class or any other capital stock or equity security of
the Company (other than the Series B Preferred Stock in accordance with
the terms hereof); provided, however, that this restriction shall not
apply to the repurchase of shares of Common Stock issued pursuant to the
Company's employee benefit or option plan; and, provided, further, that
this restriction shall not apply to redemptions of Common Stock of the
Company in any 6 month period not in excess of $100,000; or
(iv) the approval of a merger, consolidation, liquidation or sale of
all or substantially all of the assets of the Company or other similar
transaction that would result in a holder of Series B Preferred Stock
receiving an amount less than (A) $14.00 per then outstanding share of
Series B Preferred Stock (adjusted appropriately for stock splits, stock
dividends and the like) through March 31, 1991 or (B) $18.00 per then
outstanding share of Series B Preferred Stock (adjusted appropriately for
stock splits, stock dividends and the like) commencing on April 1, 1991
and thereafter, in the case of (A) or (B) above, on a converted basis or
otherwise.
(c) So long as at least a majority of the authorized shares of the Series
B Preferred Stock shall remain outstanding, the holders of the Series B
Preferred Stock shall be entitled to vote as a class separately from all other
classes of stock of the Company to elect one member of the Company's Board of
Directors.
Section 5. Conversion.
(a) Subject to and in compliance with the provisions of this Section 5,
shares of the Series B Preferred Stock may, at the option of the holder thereof,
be converted at any time or from time to time into fully-paid and non-assessable
shares of Common Stock. The number of shares of Common Stock to which a holder
of the Series B Preferred Stock shall be entitled upon conversion shall be the
product obtained by multiplying the Conversion Rate (determined as provided in
paragraph 5(b)) by the number of shares of Series B Preferred Stock being
converted.
(b) The conversion rate in effect at any time with respect to the Series B
Preferred Stock (the "Conversion Rate") shall equal (i) the quotient obtained by
dividing the Initial Value (as hereinafter defined) by the Conversion Value,
calculated as hereinafter provided or (ii) that amount calculated as set forth
in Section 5(m)(ii) or 5(m)(iii), if applicable.
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(c) The Initial Value with respect to the Series B Preferred Stock is
$7.00. The Conversion Value in effect initially, and until first adjusted in
accordance with Sections 5(d) or 5(m) hereof, shall be $7.00.
(d) Upon the happening of an Extraordinary Common Stock Event (as defined
below), the Conversion Value, simultaneously with the happening of such
Extraordinary common Stock Event, shall be adjusted by dividing the then
effective Conversion Value by a fraction, the numerator of which shall be the
number of shares of Common Stock of all classes outstanding immediately after
such Extraordinary Common Stock Event and the denominator of which shall be the
number of shares of Common stock of all classes outstanding immediately prior to
such Extraordinary Common Stock Event, and the quotient so obtained shall
thereafter be the Conversion Value. The Conversion Value as so adjusted, shall
be re-adjusted in the same manner upon the happening of any subsequent
Extraordinary Common Stock Event or Events.
(e) In the event the Company shall make or issue, or fix a record date for
the determination of holders of Common Stock entitled to receive, a dividend or
other-distribution payable in securities of the Company other than shares of
Common Stock, then and in each such event lawful and adequate provision shall be
made so that the holders of Series B Preferred Stock shall receive the number of
securities of the Company which they would have received had their Series B
Preferred Stock been converted into Common Stock pursuant to the provisions of
this Section 5 on the date of such event.
(f) If the Common Stock issuable upon the conversion of the Series B
Preferred Stock shall be changed into the same or a different number of shares
of any class or classes of stock, whether by reclassification or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for above, or a reorganization, merger, consolidation or sale of assets provided
for elsewhere in this Section 5), then and in each such event the holder of each
share of Series B Preferred Stock shall have the right thereafter to convert
such share into the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change,
by holders of shares of Common Stock into which such shares of Series B
Preferred Stock might have been converted immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as
provided herein.
(g) If at any time or from time to time there shall be a reclassification
of the Common Stock (other than a subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this Section 5) or a merger or
consolidation of the Company with or into another corporation or the sale of all
or substantially all of the Company's properties and assets to any other person,
or other similar transaction, then, as a part of and as a condition to the
effectiveness of such reorganization, merger, consolidation or sale, lawful and
adequate provision shall be made so that each holder of Series B Preferred Stock
shall thereafter be entitled to receive upon conversion of such holder's shares
of Series B Preferred Stock the number of shares of stock, or the amount of
other securities or property of the Company or of the successor corporation
resulting from such merger or consolidation or sale, to which a holder of Common
Stock deliverable upon conversion of such shares of Series B Preferred Stock
would have been entitled
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on such capital reorganization, merger, consolidation, or sale. In any such
case, appropriate provisions shall be made with respect to the rights of the
holders of the Series B Preferred Stock after the reorganization, merger,
consolidation or sale such that the provisions of this Section 5 (including
without limitation provisions for adjustment of the Conversion Value and the
number of shares issuable upon conversion of the Series B Preferred Stock) shall
thereafter be applicable, as near-ly as may be possible, with respect to any
shares of stock, securities or assets to be deliverable thereafter upon the
conversion of the Series B Preferred Stock of such series.
Each holder of Series B Preferred Stock, upon the occurrence of a capital
reorganization, merger or consolidation of the Company or the sale of all or
substantially all its assets and properties as such events are more fully set
forth in the first paragraph of this Section 5(g), shall have the option of
electing treatment of his outstanding shares of Series B Preferred Stock under
either this Section 5(g) or Section 3(b) hereof, notice of which election shall
be submitted in writing to the Company at its principal office no later than 10
days before the effective date of such event, provided that, notwithstanding the
foregoing, any such notice shall be effective if given not later than 15 days
after the date of the Company's notice, pursuant to Section 8, with respect to
such event.
(h) In each case of an adjustment or readjustment of the Conversion Rate,
the Company will furnish each holder of Series B Preferred Stock with a
certificate, prepared by the principal financial officer of the Company, showing
such adjustment or readjustment, and stating in detail the facts upon which such
adjustment or readjustment is based.
(i) To exercise his conversion privilege, a holder of Series B Preferred
Stock shall surrender the certificate or certificates representing the shares
being converted to the Company at its principal office, and shall give written
notice to the Company at that office that such holder elects to convert such
shares. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock
issuable upon such conversion shall be issued. The certificate or certificates
for shares of Series B Preferred Stock surrendered for conversion shall be
accompanied by proper assignment thereof to the Company or endorsed in blank.
The date when such written notice is received by the Company together with the
certificate or certificates representing the shares of Series B Preferred Stock
being converted, shall be the "Conversion Date." As promptly as practicable
after the Conversion Date, the Company shall issue and deliver to the holder of
the shares of Series B Preferred Stock being converted, or on his written order,
such certificate or certificates as he may request for the number of full shares
of Common Stock issuable upon the conversion of such shares of Series B
Preferred Stock in accordance with the provisions of-this Section 5 and cash as
provided in Section 5(j), in respect of any fraction of a share of Common Stock
issuable upon such conversion. Such conversion shall be deemed to have been
effected immediately prior to the close of business on the Conversion Date, and
at such time the rights of the holder as holder of the converted shares of
Series B Preferred Stock shall cease 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 thereupon be deemed to have become the
holder or holders of record of
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shares of Common Stock represented thereby.
(j) No fractional shares of Common Stock or scrip representing fractional
shares shall be issued upon conversion of Series B Preferred Stock. Instead of
any fractional shares of Common Stock which would otherwise be issuable upon
conversion of Series B Preferred Stock, the Company shall pay to the holder of
the shares of Series B Preferred Stock which were converted a cash adjustment in
respect of such fraction in an amount equal to the same fraction of the market
price per share of the Common Stock (as determined in a manner prescribed by the
Board of Directors) at the close of business on the Conversion Date.
(k) The Company shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the shares of the Series B Preferred Stock, such
number of its shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of the Series B Preferred Stock,
and if at any time the number of authorized but unissued shares of Common Stock
shall not be sufficient to effect the conversion of all then outstanding shares
of the Series B Preferred Stock, the Company shall take such corporate action as
may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
(l) "Extraordinary Common Stock Event" shall mean (i) the issuance of
additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock, (ii) the subdivision of outstanding shares of Common
Stock into a greater number of shares of Common Stock, or (iii) the combination
of outstanding shares of the Common Stock of any class into a smaller number of
shares of the Common Stock.
(m) (i) If, for the period commencing on the first business day
following the public announcement or disclosure of the
Company's earnings with respect to the Company's fiscal year
ending March 31, 1990 and ending on the loth business day
thereafter, the average Closing Price (as defined below) of
the Company's Common Stock per share (the "FY90 Average
Close") is less than the then effective Conversion Value, the
FY90 Average Close shall become the new Conversion Value;
(ii) (A) If, for the period commencing on the first business day
following the public announcement or disclosure of the
Company's earnings with respect to the Company's fiscal year
ending March 31, 1992 and ending on the loth business day
thereafter, the average Closing Price of the Company's Common
Stock per share (the "FY92 Average Close") is less than the
fraction the numerator of which is $14.00 and the denominator
of which is the then effective Conversion Rate, (a) the
Conversion Rate in effect immediately after any adjustment
required by this Section 5(m)(ii)(A) shall equal the sum of
the then effective Conversion Rate plus K (as
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defined below), and (b) the Conversion Value in effect
immediately after any adjustment required by this Section
6(m)(ii)(A) shall equal the fraction the numerator of which is
the Initial Value and the denominator of which is the
Conversion Rate in effect immediately after any adjustment
required by this Section 5(m)(ii)(A);
For the purposes of this Section 5(m)(ii)(A), K shall prior to
any adjustment pursuant to this sentence equal .25 and shall
be adjusted simultaneously with the happening of an
Extraordinary Common Stock Event, by multiplying the then
effective K by a fraction, the numerator of which shall be the
number of shares of Common Stock of all classes outstanding
immediately after such Extraordinary Common Stock Event and
the denominator of which shall be the number of shares of
Common Stock of all classes outstanding immediately prior to
such Extraordinary Common Stock Event, and the product so
obtained shall thereafter be K. K, as so adjusted, shall be
readjusted in the same manner upon the happening of any
subsequent Extraordinary Common Stock Event or Events.
(B) If the FY92 Average Close is (l) less than the fraction
the numerator of which is $18.00 and the denominator of
which is the then effective Conversion Rate and (2)
greater than the fraction the numerator of which is
$14.00 and the denominator of which is the then
effective Conversion Rate, (a) the Conversion Rate in
effect immediately after any adjustment required by this
Section 5(m)(ii)(B) shall equal the sum of (1) the then
effective Conversion Rate, plus (2) the product of (I)
the then effective Conversion Rate divided by 16, and
(II) the difference of (i) 18 divided by the then
effective Conversion Rate less (ii) the FY92 Average
Close and (b) the Conversion Value in effect immediately
after any adjustment required by this Section
5(m)(ii)(B) shall equal the fraction the numerator of
which is the Initial Value and the denominator of which
is the Conversion Rate in effect immediately after any
adjustment required by this Section 5(m)(ii)(B);
(iii) If, for the period commencing on the first business day
following the public announcement or disclosure of the
Company's earnings with respect to the Company's fiscal
year ending March 31, 1993 and ending on the 20th
business day thereafter, the average Closing Price of
the Company's Common Stock per share (the "FY93 Average
Close") is less than Conversion Value in effect as of
the date of issuance of the Series B Preferred Stock
(adjusted for any Extraordinary Common Stock Events),
and the Series B Effective
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Price (as defined below) is greater than the FY93
Average Close, (a) the Conversion Rate then in effect
shall be adjusted such that the Conversion Rate in
effect immediately after any adjustment required by this
Section 5(m)(iii) shall equal the fraction the numerator
of which is the product of the (1) Conversion Value in
effect as of the date of issuance of the Series B
Preferred Stock, (adjusted for any Extraordinary Common
Stock Events) and (2) 2, and the denominator of which is
the sum of (1) the Series B Effective Price and (2) the
lesser of (x) the Series B Effective Price and (y) the
product of the FY93 Average Close times 1.1 and (b) the
Conversion Value in effect immediately after any
adjustment required by this Section 5(m)(iii) shall
equal the fraction the numerator of which is the Initial
Value and the denominator of which is the Conversion
Rate in effect immediately after any adjustment required
by this Section 5(m)(iii).
For the purposes of this Section 5(m)(iii), Series B
Effective Price shall equal the fraction the numerator
of which is the Conversion Value in effect as of the
date of issuance of the Series B Preferred Stock,
(adjusted for any Extraordinary Common Stock Events),
and the denominator of which is the Conversion Rate then
in effect immediately prior to any adjustment required
by this Section 5(m)(iii).
For the purposes of this Section 5(m), the Closing Price for any day shall
mean, for each day while such stock is listed on a national securities exchange
or quoted on the National Association Securities Dealers National Market System,
the last reported sale price or, in case there is no such reported sale on any
day, the mean between the reported closing bid and asked prices on such day. If
the Common Stock is not so listed or quoted, the Closing Price for each day
shall mean the mean between the closing bid and asked prices in the
over-the-counter market in which the Common Stock is traded.
(n) Whenever the Company shall issue shares of Common Stock upon
conversion of shares of Series B Preferred Stock as contemplated by this Section
5, the Company shall issue together with each such share of Common Stock, one
right to purchase one one-hundredth of a share of Series A Preferred Stock of
the Company (or other securities in lieu thereof) pursuant to the Rights
Agreement dated as of July 15, 1988 (the "Rights Agreement"), between the
Company and The First National Bank of Boston as Rights Agent, as such Rights
Agreement may from time to time be amended, or any rights issued to holders of
Common Stock of the Company in addition thereto or in replacement therefor,
whether or not such rights shall be exercisable at such time, but only if such
rights are issued and outstanding and held by other holders of Common Stock of
the Company at such time and have not expired.
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Section 6. Redemption at the Option of the Company.
(a) Subject to the rights of each holder of Series B Preferred Stock to
exercise his conversion rights as set forth in Section 5 and elsewhere in this
Vote, the Company shall have the option at any time and from time to time to
redeem not less than 20% of the then outstanding shares of the Series B
Preferred Stock, out of funds legally available therefor, pro rata from each
holder of Series B Preferred Stock at a purchase price per share of Series B
Preferred Stock of $21.00 (adjusted appropriately for stock splits, stock
dividends and the like with respect to the Series B Preferred Stock) (the
"Redemption Price").
(b) Unless otherwise required by law, notice of redemption will be sent to
the holders of Series B Preferred Stock at the address shown on the books of the
Company or the transfer agent for the Series B Preferred Stock by first-class
mail, postage prepaid, mailed not less than 20 nor more than 60 days prior to
the redemption date. Each such notice shall state: (i) the redemption date; (ii)
the redemption price; (iii) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (iv) the
conversion rights of the shares to be redeemed, the period within which
conversion rights may be exercised, and the Conversion Rate and number of shares
of Common Stock issuable upon conversion of a share of Series B Preferred Stock
on the date such notice is sent. From and after the redemption date, so long as
the holders of Series B Preferred Stock shall have received the amounts set
forth in Section 6(a) or provision for the payment of such amounts has been made
in a manner reasonably satisfactory to such holders, all rights of the holders
of the Series B Preferred Stock with respect to those shares of Series B
Preferred Stock designated for redemption in the notice (except the right to
receive the Redemption Price, if not previously paid, upon surrender of the
certificates for such shares so called for redemption and not previously
converted (properly endorsed or assigned for transfer, if the Board of Directors
of the Company shall so require and the notice shall so state)), shall cease and
such shares shall not thereafter be transferred on the books of the Company or
be deemed to be outstanding for any purpose whatsoever.
(c) Notwithstanding anything contained in this Section 6 to the contrary,
each holder of Series B Preferred Stock shall up to and including the day
immediately preceding the date fixed for redemption in the redemption notice
described in Section 6(b) above, have the right to convert all or any part of
the shares of Series B Preferred Stock held by such holder into Common Stock in
accordance with Section 5 hereof.
Section 7. No Reissuance of Preferred Stock. No share or shares of the
Series B Preferred Stock acquired by the Company by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be canceled, retired, and eliminated from the shares which the Company shall be
authorized to issue. The Company may from time to time take such appropriate
corporate action as may be necessary to reduce the authorized number of shares
of the Series B Preferred Stock accordingly.
Section 8. Notices of Record Date. In the event (i) the company
establishes a record date
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to determine the holders of any class of securities who are entitled to receive
any dividend or other distribution, or (ii) there occurs any capital
reorganization of the Company, any reclassification or recapitalization of the
capital stock of the Company, any merger or consolidation of the Company, and
any transfer of all or substantially all of the assets of the Company to any
other corporation, or any other entity or person, or any voluntary or
involuntary dissolution, liquidation or winding up of the Company, the Company
shall mail to each holder of Series B Preferred Stock at least 20 days prior to
the record date specified therein, a notice specifying (a) the date of such
record date for the purpose of such dividend or distribution and a description
of such dividend or distribution, (b) the date on which any such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation or
winding up is expected to become effective, and (c) the time, if any, that is to
be fixed, as to when the holders of record of Common Stock (or other securities)
shall be entitled to exchange their shares of Common Stock (or other securities)
for securities or other property deliverable upon such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation or
winding up.
Section 9. Other Rights. Except as otherwise provided in this Vote, shares
of Series B Preferred Stock and shares of Common Stock shall be identical in all
respects (each share of Series B Preferred Stock having equivalent rights to the
number of shares of Common Stock into which it is then convertible), shall have
the same powers, preferences and rights, without preference of any such class or
share over any other such class or share, and shall be treated as a single class
of stock for all purposes.
Section 10. Ranking.
The Series B Preferred Stock shall rank senior to the Common Stock and to
the Series A Preferred Stock as to the distribution of assets on liquidation,
dissolution and winding up of the Company.
Section 11. Miscellaneous.
(a) All notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of delivery
thereof by hand delivery, by courier, or by standard form of telecommunication
or three (3) business days after the mailing thereof if sent registered mail
(unless first-class mail shall be specifically permitted for such notice under
the terms hereof) with postage prepaid, addressed: (i) if to the Company, to its
office at Ten Canal Park, Cambridge, Massachusetts 02141 (Attention: Clerk) and
to the transfer agent, if any, for the Series B Preferred Stock or other agent
of the Company designated as permitted hereby or (ii) if to any holder of the
Series B Preferred Stock or Common Stock, as the case may be, to such holder at
the address of t such holder as listed in the stock record books of the Company
(which may include the records of any transfer agent for the Series B Preferred
Stock or Common Stock, as the case may be) or (iii) to such other address as the
Company or any such holder, as the case may be, shall have designated by notice
similarly given.
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(b) The term "Common Stock" as used in this Vote means the Company's
Common Stock, $.0l par value, as the same exists at the date of filing of a
Certificate of vote of Directors Establishing a Series of a Class of Stock
relating to Series B Preferred Stock or any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value. In the event that, at any time as a result of an adjustment made
pursuant to Section 5 hereof, the holder of any shares of the Series B Preferred
Stock upon thereafter surrendering such shares for conversion shall become
entitled to receive any shares or other securities of the Company other than
shares of Common Stock, the Conversion Rate in respect of such other shares or
securities so receivable upon conversion of shares of Series B Preferred Stock
shall thereafter be adjusted, and shall be subject to further adjustment from
time to time, in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to Common Stock contained in Section 5 hereof, and
the remaining provisions of this Vote with respect to the Common Stock shall
apply on like or similar terms to any such other shares or securities.
(c) The Company shall pay any and fall stock transfer and documentary
stamp taxes that may be payable in respect of any issuance or delivery of shares
of Series B Preferred Stock or shares of Common Stock or other securities issued
on account of Series B Preferred Stock pursuant hereto or certificates
representing such shares or securities. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issuance or delivery of shares of Series B Preferred Stock or
Common Stock or other securities in a name other than that in which the shares
of Series B Preferred Stock with respect to which such shares or other
securities are issued or delivered were registered, or in respect of any payment
to any person with respect to any such shares or securities other than a payment
to the registered holder thereof, and shall not be required to make any such
issuance delivery or payment unless and until the person otherwise entitled to
such issuance, delivery or payment has paid to the Company the amount of any
such tax or has established, to the satisfaction of the Company, that such tax
has been paid or is not payable.
(d) In the event that a holder of shares of Series B Preferred Stock shall
not by written notice designate the name in which shares of Common Stock to be
issued upon conversion of such shares should be registered or to whom payment
upon redemption of shares of Series B Preferred or the address to which the
certificate or representing such shares, or such payment, Company shall be
entitled to register such payment, in the name of the holder of Preferred Stock
as shown on the records of Stock should be made certificates should be sent, the
shares, and make such Series B the Company and to send the certificate or
certificates representing such shares, or such payment, to the address of such
holder listed in the stock record books of the Company (which may include the
records of any transfer agent for the Series B Preferred Stock or Common Stock,
as the case may be).
(e) The Company may appoint, and from time to time discharge and change, a
transfer agent of the Series B Preferred Stock. Upon any such appointment or
discharge of a
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transfer agent, the Company shall send notice thereof by hand delivery, by
courier, by standard form of telecommunication or by first class mail (postage
prepaid), to each holder of record of Series B Preferred Stock.
(f) Series B Preferred Stock may be issued, converted and redeemed 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, exercise conversion rights and to have the benefit
of all other rights of holders of Series B Preferred Stock. Fractions of a share
of Series B Preferred Stock so redeemed shall be redeemed at the appropriate
percentage of the per share price otherwise determined in accordance with the
terms hereof.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed. our names this 28th day of September in the year 1989
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________________________________________________, President/Vice President
________________________________________________, Clerk/Assistant Clerk
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THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $ having been
paid, said certificate is hereby filed this day
of September, 1989.
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO:
Christopher P. Holsing, Esq.
----------------------------------
Hale and Dorr
----------------------------------
60 State Street
----------------------------------
Boston, MA 02109
----------------------------------
Telephone: (617)742-9100 Ext. 2514
-----------------------
-47-
THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
Secretary of
State Federal Identification
ONE ASHBURTON PLACE, BOSTON, MA 02108
No. 04-2729042
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
We, Mark K. Ruport ,President, and
John K. Hyvnar ,Clerk of
Interleaf, Inc.
(Name of Corporation)
located at Prospect Place, 9 Hillside Avenue, Waltham, MA 02154 do hereby
certify that these ARTICLES OF AMENDMENT affecting Articles Numbered: 3 of the
Articles of Organization were duly adopted at a meeting held on August 5, 1993,
by vote of:
9,401,786 shares of Common Stock out of 13,254,902 shares outstanding,
1,928,572 shares of Senior Series B Convertible out of 13, 1,928,572
shares outstanding, and
_________ shares of Preferred Stock out of shares outstanding,
CROSS OUT
INAPPLICABLE
CLAUSE voting together as a single class pursuant to Section 8(b) of
M.G.L. c.156B, being at least a majority of such class
outstanding and entitled to vote thereon. Each share of Common
Stock carries 1 vote, and each share of Senior Series B
Convertible Preferred Stock carries 1.34375 votes.
Accordingly, these Articles of Amendment were approved by vote
of 11,993,304 votes, out of a possible total of 15,846,420
votes.
1 For amendments adopted pursuant to Chapter 156B, Section 70.
2 For amendments adopted pursuant to Chapter 156B, Section 71.
-48-
Note: If the space provided under any Amendment or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left hand margin of at least 1 inch for binding. Additions to
more than one Amendment may be continued on a single sheet so long as each
article requiring each such addition is clearly indicated.
-49-
To CHANGE the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS
- ------------------------------------
TYPE Number of Shares
- ------------------------------------
Common
- ------------------------------------
Preferred
- ------------------------------------
WITH PAR VALUE STOCKS
- -------------------------------------------
TYPE Number of Shares Par Value
- -------------------------------------------
Common 20,000,000 $.01
- -------------------------------------------
Preferred: 50,000,000 $.10
Series A
Junior
Participating 200,000 $.10
- -------------------------------------------
Series B
Senior 2,142,857 $.10
Convertible
- -------------------------------------------
Change the total authorized to:
WITHOUT PAR VALUE STOCKS
- ------------------------------------
TYPE Number of Shares
- ------------------------------------
Common
- ------------------------------------
Preferred
- ------------------------------------
WITH PAR VALUE STOCKS
- -------------------------------------------
TYPE Number of Shares Par Value
- -------------------------------------------
Common 30,000,000 $.01
- -------------------------------------------
Preferred: 5,000,000 $.10
Series A
Junior $.10
Participating 200,000
- -------------------------------------------
Series B 2,142,857 $.10
Senior
Convertible
- -------------------------------------------
-50-
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
EFFECTIVE DATE:________________________________
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed
our names this day of in the year 1993.
_______________________________________President/Vice President
_______________________________________Clerk/Assistant Clerk
-51-
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
I hereby approve the within articles of amendment and,
the filing fee in the amount of $ having been paid, said
articles are deemed to have been filed with me this
day of , 1993.
MICHAEL J. CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT
TO:
John K. Hyvnar, General Counsel
-------------------------------
Interleaf, Inc.
-------------------------------
Prospect Place, 9 Hillside Avenue
-------------------------------
Waltham, MA 02154
-------------------------------
Telephone: (617)290-0710
-------------------------------
-52-
FEDERAL IDENTIFICATION
NO. 04-2729042
THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, Jaime W. Ellertson, *President /
[strikethrough]*Vice President [end strikethrough]
and Robert R. Langer, *Clerk /[strikethrough]*Assistant Clerk[end strikethrough]
of Interleaf, Inc. ,
-----------------------------------------------------------------------------
(Exact name of corporation)
located at 62 Fourth Avenue, Waltham, MA 02154 ,
-------------------------------------------------------------------
(Street Address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3
- --------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on Aug. 15 ,
1997 by vote of:
14383,044 shares of Common Stock out of 17,709,719 shares outstanding,
- ------------- ---------------------------------- --------------------
(type, class & series, if any)
Series B Convertible
861,911 shares of Preferred Stock out of 861,911 shares outstanding, and
- ------------- ---------------------------------- --------------------
(type, class & series, if any)
Series C Convertible
0 shares of Preferred Stock out of 1,008,484 shares outstanding.
- ------------- ---------------------------------- --------------------
(type, class & series, if any)
[strikethrough](1)**being at least a majority of each type, class or series
outstanding or entitled to vote thereon. / or (2)** being at least two thirds of
each type, class or series outstanding or entitled to vote thereon and of each
type, series of stock whose rights are adversely affected thereby:[end
strikethrough] voting together as a single class pursuant to Section 8(b) of
M.G.L. c.156B, being at least a majority of such class outstanding and entitled
to vote thereon. Each share of Common Stock carries 1 vote, each share of Senior
Series B Convertible Preferred Stock carries 1.34375 votes, and each share of
Series C Convertible Preferred Stock carries 2 votes. Accordingly, these
Articles of Amendment were approved by vote of 15,541,237 votes, out of a
possible total of 20,884,880 votes.
* Delete the inapplicable words. ** Delete the inapplicable clause.
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any Amendment or item on this form is
insufficient, additions shall be set forth on one side only of separate 8 1/2 x
11 sheets of paper leaving a left hand margin of at least 1 inch. Additions to
more than one article may be continued on a single sheet so long as each article
requiring each such addition is clearly indicated.
-53-
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
Common: Common: 30,000,000 $ .01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: Preferred: 5,000,000 (1) $ .10
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Change the total authorized to:
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
Common: 50,000,000 $ .01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: 5,000,000 (1) $ .10
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ----------
(1) Of the 5,000,000 authorized shares of Preferred Stock, 200,000 shares have
been designated as Series A Junior Participating Preferred Stock, 2,142,857
shares have been designated as Series B Convertible Preferred Stock, and
1,200,000 shares have been designated as Series C Convertible Preferred Stock
-54-
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
Later Effective Date:________________________________
SIGNED UNDER THE PENALTIES OF PERJURY, this 11th day of September, 1997.
/s/ Jaime W. Ellertson, *President/
[strikethrough]*Vice President[end strikethrough]
/s/ Robert Langer, *Clerk/[strikethrough]*Assistant Clerk[end strikethrough]
*Delete the inapplicable words.
-55-
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
================================================================================
I hereby approve the within articles of amendment and, the filing
fee in the amount of $ 20,000.00 having been paid, said articles are
deemed to have been filed with me this 15th day of September, 1997.
Effective date:______________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
John K. Hyvnar, General Counsel
-------------------------------
Interleaf, Inc.
62 Fourth Avenue
-------------------------------
Waltham, MA 02154
-------------------------------
-56-
FEDERAL IDENTIFICATION
NO. 04-2729042
THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A SERIES OR CLASS OF STOCK
(General Laws, Chapter 156B, Section 26)
We, Jaime W. Ellertson, *President/
[strikethrough]*Vice President[end strikethrough]
and John K. Huvnar [strikethrough]*Clerk/[end strikethrough]*Assistant Clerk
of Interleaf, Inc. ,
-----------------------------------------------------------------------------
(Exact name of corporation)
located at 62 Fourth Avenue, Waltham, MA 02154 ,
-------------------------------------------------------------------
(Street Address of corporation in Massachusetts)
do hereby certify that a meeting of the directors of the corporation held on
September 30, 1997, the following vote establishing and designating a class or
series of stock and determining the rltive rights and preferences thereof was
duly adopted:
That pursuant to authority conferred upon the Board of Directors of the
Corporation by the provisions of the Corporation's Articles of
Organization, as amended, the proper officers of the Corporation are
authorized to file with the Secretary of State of The Commonwealth of
Massachusetts a Certificate of Vote of Directors Establishing a Series of
a Class of Stock ("Certificate of Vote of Directors"), and that of the
3,131,869 authorized and unissued share of the Corporation's preferred
stock, $.10 par value (`Preferred Stock"), 11,000 shares are hereby
designed at 6% Convertible Preferred Stock, $.10 par value ("6%
Convertible Preferred Stock"); the relative rights, preferences, powers,
privileges and restrictions, qualifications and limitations granted to or
imposed upon such series of shares to be substantially as set forth in
Schedule I attached hereto.
57
SCHEDULE I
RESOLUTION ESTABLISHING PREFERENCES
of
6% CONVERTIBLE PREFERRED STOCK
RESOLVED that there shall be a series of shares of the Preferred
Stock of the Corporation designated "6% Convertible Preferred Stock"; that the
number of authorized shares of such series shall be 11,000 and that the rights
and preferences of such series (the "6% Preferred") and the limitations or
restrictions thereon, shall be as follows:
1. Dividends.
(a) The holders of the 6% Preferred shall be entitled to receive out
of any assets legally available therefor cumulative dividends at the rate of
$60.00 per share per annum, payable annually on September 30 of each year, when
and as declared by the Board of Directors, in preference and priority to any
payment of any dividend on the Common Stock or any other class or series of
stock of the Corporation ranking junior to the 6% Preferred and ranking pari
passu with the Class C Preferred Stock of the Corporation. Such dividends shall
accrue on any given share from the day of original issuance of such share and
shall accrue from day to day whether or not earned or declared. If at any time
dividends on the outstanding 6% Preferred at the rate set forth above shall not
have been paid or declared and set apart for payment with respect to all
preceding periods, the amount of the deficiency shall be fully paid or declared
and set apart for payment, but without interest, before any distribution,
whether by way of dividend or otherwise, shall be declared or paid upon or set
apart for the shares of any other class or series of stock of the Corporation
except a class or series which is entitled to priority over the 6% Preferred.
(b) Dividends shall be paid in shares of 6% Preferred valued at
$1,000 per share. Dividends not theretofore paid shall be paid upon conversion
of any share of the 6% Preferred and shall be simultaneously converted into
Common Stock together with the share on which such dividends have accrued.
(c) At its option, the Corporation may elect to pay accumulated
dividends in cash. The Corporation must give notice of such election in the
manner provided in Section 5 hereof at least ten (10) calendar days prior to
both the date of payment and the date Notice of Conversion is given by a holder.
The Corporation may choose the cash election any number of times and each such
election may be effective for any length of time established by the Corporation
and stated in its notice of the election.
2. Liquidation Preference.
(a) The liquidation rights of the 6% Preferred shall rank pari passu
with the Class C Preferred Stock of the Corporation. In the event of any
liquidation, dissolution or winding up of the Corporation, either voluntary or
involuntary, the holders of the 6% Preferred shall be entitled to receive, prior
and in preference to any distribution of any assets of the Corporation to the
holders of the Common Stock or any other class or series of shares except any
class or series which is entitled to priority over the 6% Preferred and except
for ratable distribution to the Class C Preferred Stock, the amount of $1,000
per share plus any accrued but unpaid dividends plus any amounts accrued but
unpaid under Section 1.4(b)(iv) of the Preferred Stock Investment Agreement
under which shares of the 6% Preferred were originally issued (the "Liquidation
Preference").
(b) Subject to the last sentence of this Section, a consolidation or
merger of the Corporation with or into any other corporation or corporations, or
a sale of all or substantially all of the assets of the Corporation, shall, at
the option of the holders of the 6% Preferred, be deemed a liquidation,
dissolution or winding up within the meaning of this Section 2 if the shares of
stock of the Corporation (along with all derivative securities) outstanding
immediately prior to such transaction represent immediately after such
transaction less than a majority of the voting power of the surviving
corporation (or of the acquirer of the Corporation's assets in the case of a
sale of assets). Such option may be exercised by the vote or written consent of
holders of a majority of the 6% Preferred at any time within thirty calendar
days after written notice of the essential terms of such transaction shall have
been given to the holders of the 6% Preferred as provided in Section 5 hereof.
Such notice shall be given by the Corporation immediately following
determination of such essential terms. If such option is exercised, the holders
of the 6% Preferred shall be entitled to receive, in cash, immediately upon the
occurrence of such
58
transaction, an amount per share equal to the Liquidation Preference divided by
the difference between 100% and the Applicable Percentage determined pursuant to
Section 4 hereof. This Section shall not apply to a business combination in
which the Common Stock of the Corporation is converted solely into or exchanged
solely for voting common stock of the corporation surviving such business
combination, if (i) such common stock of the surviving corporation is listed and
traded on the NASDAQ National Market, the American Stock Exchange or the New
York Stock Exchange, and (ii) the Board of Directors of the Corporation
determines in good faith that the conversion rights and other rights and
preferences of the 6% Preferred are preserved and not rendered of less value by
the terms of such business combination.
3. Mandatory Conversion.
On the fifth anniversary of the date of issuance, all then
outstanding shares of 6% Preferred shall be automatically converted into Common
Stock at the Conversion Price on such anniversary date and otherwise pursuant to
the applicable provisions set forth in Section 4 hereof.
4. Conversion. The holders of the 6% Preferred shall have optional
conversion rights as follows:
(a) Accrual of Conversion Rights. The Conversion Period shall
commence 90 days after the date of issuance, and shall continue thereafter for
the life of the issue. Each holder of record of 6% Preferred shares on the date
of commencement of the Conversion Period (an "Original Holder") shall be
entitled to convert in any calendar month the following percentage of the 6%
Preferred shares held by such holder on the date of commencement of the
Conversion Period (the "Conversion Restriction"). The percentage for each
calendar month will be determined based on the highest of the daily low trading
prices of the Common Stock during such month, as follows:
Highest of daily low trading Percentage becoming
prices during month convertible for such month
$2.50 or less 10.0%
$2.51 to $3.50 10.0%
$3.51 to $4.00 12.5%
$4.01 to $5.50 15.0%
$5.51 to $6.00 17.5%
$6.01 to $7.50 20.0%
$7.51 to $8.50 22.5%
$8.51 or more 25.0%
The number of shares which may be converted in any calendar month shall include
on a cumulative basis the number of shares which might have been but were not
converted during earlier calendar months, except that in any month in which the
highest of the daily low trading prices is $2.50 or less, the amount converted
shall not exceed 10%. In the case of transfers of shares by an Original Holder
the Corporation shall make such notations on its stock ownership records and on
the certificates for shares issued upon transfer so as to reflect the portion
(if any) of the transferred shares which have become convertible pursuant to
this provision, or the Corporation may at its election issue certificates
representing the 6% Preferred shares in such form, or with such annotations, as
to reflect the time or times at which the shares represented by such
certificates will become convertible.
(b) Removal of Limitations. The limitations set forth in Section
4(a) hereof, with respect to the percentage of 6% Preferred shares which may be
converted during certain time periods, shall terminate and all the 6% Preferred
shares shall thereafter be fully convertible if any of the following events or
conditions shall occur or exist: (i) an event described in Section 2(b) (subject
to the exclusion in the last sentence of such Section) shall occur, whether or
not the holders of 6% Preferred deem such event to be a liquidation; (ii)
proceedings for relief under any bankruptcy or similar law for the relief of
debtors are instituted by or against the Corporation or any of its significant
subsidiaries and, if instituted against the Corporation or such subsidiary, are
consented to or not dismissed within 30 days; (iii) the independent auditors of
the Corporation shall fail or be unwilling to express within 90 days after the
end of the Corporation's fiscal year a customary opinion on the financial
statements of the Corporation, or shall express such opinion subject to a "going
concern" qualification; (iv) the Common Stock of the Corporation shall cease to
be listed on either the NASDAQ Small-Cap Market, the NASDAQ National Market, or
a national securities exchange; or (v) there shall be a material breach by the
Corporation of any of its obligations hereunder or under the Preferred Stock
Investment Agreements pursuant to which the 6% Preferred was originally issued
which has a material adverse effect on the holders of 6% Preferred.
59
(c) Right to Convert. At and after the time it has become
convertible, each share of 6% Preferred shall be convertible, at the option of
the holder thereof, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing (i) the liquidation preference of the
6% Preferred share determined pursuant to Section 2(a) hereof on the date the
notice of conversion is given, by (ii) the Conversion Price determined as
hereinafter provided in effect on said date, provided however, that a share of
6% Preferred shall not be converted into Common Stock if following such
conversion the holder thereof together with affiliates of such holder would be
the beneficial owners (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934) of 10% or more of the Common Stock of the Corporation.
(d) Mechanics of Conversion. To convert shares of 6% Preferred into
shares of Common Stock, the holder shall give written notice to the Corporation
(which notice may be given by facsimile transmission) that such holder elects to
convert the same and shall state therein the number of shares to be converted
and the name or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. Promptly thereafter the
holder shall surrender the certificate or certificates representing the shares
to be converted, duly endorsed, at the office of the Corporation or of any
transfer agent for such shares, or at such other place designated by the
Corporation. The Corporation shall, immediately upon receipt of such notice,
issue and deliver to or upon the order of such holder, against delivery of the
certificates representing the shares which have been converted, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled, and a certificate representing the shares of 6% Preferred not so
converted, if any. The Corporation shall effect such issuance immediately and
shall transmit the certificates by messenger or overnight delivery service to
reach the address designated by such holder within three trading days after the
receipt of such notice. Notice of conversion may be given by a holder at any
time of day up to 5:00 pm Los Angeles time, and such conversion shall be deemed
to have been made immediately prior to the close of business on the date such
notice of conversion is given (the "Conversion Date"). The person or persons
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock at the close of business on the Conversion Date.
(e) Determination of Conversion Price.
(i) On any Conversion Date prior to the first day of the
thirteenth calendar month after the Closing, the Conversion Price shall not be
less than $1.50, and until the end of the seventh month following the Closing
the Conversion Price shall be $5.50. Subject to the foregoing sentence and to
the provisions of subsection (e)(iii) and subsection (f) of this Section, on any
Conversion Date, the Conversion Price shall be the average of the three (3)
lowest daily trading prices of the Common Stock for the 22 consecutive trading
days ending with the trading day prior to the Conversion Date, reduced by the
Applicable Percentage (as defined below) in effect on the Conversion Date.
(ii) The Applicable Percentage shall be as follows:
9.8% starting on the first day of the eighth (8th) calendar month after
Closing.
11.1% starting on the first day of the ninth (9th) calendar month after
Closing.
12.4% starting on the first day of the tenth (10th) calendar month after
Closing.
13.7% starting on the first day of the eleventh (11th) calendar month
after Closing.
15.0% starting on the first day of the twelfth (12th) calendar month
after Closing and thereafter.
(iii) From and after the first day of the sixteenth (16th)
calendar month after Closing, the Maximum Conversion Price ("Conversion Cap")
shall be 85% of the average low daily trading price of the Common Stock during
the period beginning on the first day of the twelfth (12th) calendar month
following Closing and ending on the last day of the fifteenth (15th) calendar
month following Closing. Notwithstanding the prior sentence, in no event shall
the Conversion Cap be less than the greater of: i) two dollars and fifty cents
($2.50), or ii) the average daily closing price of the Common Stock for the five
(5) trading days immediately prior to the Closing.
(iv) The terms "low trading price" and "last sale price" of
the Common Stock on any day shall mean, respectively, (A) the lowest reported
sale price and the last reported sale price of the Common Stock on the principal
stock exchange on which the Common Stock is listed, or (B) if the Common Stock
is not listed on a stock exchange, the lowest reported sale price and the last
reported sale price of the Common Stock on the principal automated securities
price quotation system on which sale prices of the Common Stock are reported, or
(C) if the Common Stock is not listed on a stock exchange and sale prices of the
Common Stock are not reported on an automated quotation system, the lowest bid
price and the last bid price for the Common Stock as reported by National
Quotation Bureau Incorporated. If none of the foregoing provisions are
applicable, the "low trading price" and "last sale price" of the Common Stock on
a day will be the fair market value of the Common Stock on that day as
determined by a member firm of the New
60
York Stock Exchange, Inc., selected by the Board of Directors of the
Corporation. The term "trading day" means (x) if the Common Stock is listed on
at least one stock exchange, a day on which there is trading on the principal
stock exchange on which the Common Stock is listed, (y) if the Common Stock is
not listed on a stock exchange but sale prices of the Common Stock are reported
on an automated quotation system, a day on which trading is reported on the
principal automated quotation system on which sales of the Common Stock are
reported, or (z) if the foregoing provisions are inapplicable, a day on which
quotations are reported by National Quotation Bureau Incorporated. The "closing
price" of the Common Stock on any day means the "last sale price" as defined
above.
(v) In the event that during any period of consecutive trading
days provided for above, the Corporation shall declare or pay any dividend on
the Common Stock payable in Common Stock or in rights to acquire Common Stock,
or shall effect a stock split or reverse stock split, or a combination,
consolidation or reclassification of the Common Stock, then the Conversion Price
and (if such event occurs during or after the 12th month after the date of
issuance) the Conversion Cap shall be proportionately decreased or increased, as
appropriate, to give effect to such event, and like adjustment shall be made in
any price per share specified in dollars herein.
(f) Green Floor. If at any time the Conversion Price falls below
three dollars ($3.00) per share (the "Green Floor Price"), the Corporation may
at its option, exercised by written notice ("Cash Conversion Notice") given to
the holders of the 6% Preferred five days prior to the effective date specified
in such Notice (the "Effective Date") honor any conversion request otherwise
properly made, if at a Conversion Price lower than the Green Floor Price, by a
cash payment in lieu of the issuance of Common Stock in an amount equal to the
proceeds which would otherwise have been received by the holder if conversion
were in fact made into Common Stock and such Common Stock were sold at the high
trade price on the trading day immediately preceding the date that the
conversion notice is received (the "Cash Conversion Amount"). The Cash
Conversion Notice may specify an expiration date of such Notice, or may specify
a limitation on the aggregate number of dollars which the Corporation will pay
in Cash Conversion Amounts. When such dollar limitation is reached the
Corporation shall give immediate notice to the holders of 6% Preferred that the
Cash Conversion Notice is no longer in effect. The Corporation may at any time
reset the Green Floor Price to any price determined by the Corporation by giving
30 days prior notice to the holders of the 6% Preferred. If notice of conversion
shall be given by a holder of 6% Preferred shares on a date that a Cash
Conversion Notice is in effect, the Corporation shall within 48 hours following
surrender of the share certificate as provided in Section 4(d) hereof make
payment of the Cash Conversion Amount to such holder by wire transfer of
immediately available funds in U.S. dollars pursuant to such wire transfer
instructions as may have been given by such holder, or otherwise by mailing by
certified mail a bank cashiers' or certified check for the Cash Conversion
Amount to the record address of such holder. A Cash Conversion Notice shall
cease to be effective if the Corporation fails to make payment of the Cash
Conversion Amount to any holder entitled thereto in the manner and within the
time specified in the foregoing sentence, time being of the essence. If a Cash
Conversion Notice ceases to be effective pursuant to the foregoing sentence, it
shall not thereafter be effective as to any holder and no Cash Conversion Notice
may thereafter be given by the Corporation. The number of shares that a holder
is entitled to convert, determined pursuant to subsections (a) and (b) of this
Section 4, shall not be affected by the giving or effectiveness of a Cash
Conversion Notice. Any Cash Conversion Notice shall be given as provided in
Section 5 hereof.
(g) Distributions. In the event the Corporation shall at any time or
from time to time make or issue, or fix a record date for the determination of
holders of Common Stock entitled to receive, a dividend or other distribution
payable in securities of the Corporation or any of its subsidiaries or other
property, other than cash dividends from earnings or dividends of additional
shares of Common Stock, then in each such event provision shall be made so that
the holders of 6% Preferred shall receive, upon the conversion thereof, the
securities or other property which they would have received had they been the
owners on the date of such event of the number of shares of Common Stock
issuable to them upon conversion.
(h) Certificates as to Adjustments. Upon the occurrence of any
adjustment or readjustment of the Conversion Price or the Conversion Cap
pursuant to Section 4(e)(v) or Section 4(m) hereof, or any adjustment of the
cash per-share prices specified herein, the Corporation at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and prepare and furnish to each holder of 6% Preferred a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Corporation shall, upon
the written request at any time of any holder of 6% Preferred, furnish or cause
to be furnished to such holder a like certificate prepared by the Corporation
setting forth (i) such adjustments and readjustments, and (ii) the number of
other securities and the amount, if any, of other property which at the time
would be received upon the conversion of 6% Preferred with respect to each share
of Common Stock received upon such conversion. If any holder disputes the
computation of such adjustment the Corporation shall cause independent public
accountants selected by the Corporation to verify and, if necessary, correct
such computation.
(i) Notice of Record Date. In the event of any taking by the
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other
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distribution, any security or right convertible into or entitling the holder
thereof to receive additional shares of Common Stock, or any right to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, the Corporation shall
give notice to each holder of 6% Preferred at least 10 days prior to such date
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution, security or right and the amount and character of
such dividend, distribution, security or right.
(j) Issue Taxes. The Corporation shall pay any and all issue and
other taxes, excluding any income, franchise or similar taxes, that may be
payable in respect of any issue or delivery of shares of Common Stock on
conversion of shares of 6% Preferred pursuant hereto; provided, however, that
the Corporation shall not be obligated to pay any transfer taxes resulting from
any transfer requested by any holder in connection with any such conversion.
(k) Reservation of Stock Issuable Upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the 6% Preferred, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the 6% Preferred, and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the 6% Preferred, the
Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose,
including, without limitation, engaging in best efforts to obtain the requisite
shareholder approval as promptly as practicable.
(l) Fractional Shares. No fractional shares shall be issued upon the
conversion of any share or shares of 6% Preferred. All shares of Common Stock
(including fractions thereof) issuable upon conversion of more than one share of
6% Preferred by a holder thereof shall be aggregated for purposes of determining
whether the conversion would result in the issuance of any fractional share. If,
after the aforementioned aggregation, the conversion would result in the
issuance of a fraction of a share of Common Stock, the Corporation shall, in
lieu of issuing any fractional share, pay the holder otherwise entitled to such
fraction a sum in cash equal to the fair market value of such fraction on the
date of conversion (as determined in good faith by the Board of Directors of the
Corporation).
(m) Reorganization or Merger. In case of any reorganization or any
reclassification of the capital stock of the Corporation or any consolidation or
merger of the Corporation with or into any other corporation or corporations or
a sale of all or substantially all of the assets of the Corporation to any other
person, and the holders of 6% Preferred do not elect to treat such transaction
as a liquidation, dissolution or winding up as provided in Section 2, then, as
part of such reorganization, consolidation, merger or sale, provision shall be
made so that each share of 6% Preferred shall thereafter be convertible into the
number of shares of stock or other securities or property (including cash) to
which a holder of the number of shares of Common Stock deliverable upon
conversion of such share of 6% Preferred would have been entitled upon the
record date of (or date of, if no record date is fixed) such event and, in any
case, appropriate adjustment (as determined by the Board of Directors) shall be
made in the application of the provisions herein set forth with respect to the
rights and interests thereafter of the holders of the 6% Preferred, to the end
that the provisions set forth herein shall thereafter be applicable, as nearly
as equivalent as is practicable, in relation to any shares of stock or the
securities or property (including cash) thereafter deliverable upon the
conversion of the shares of 6% Preferred. The Corporation shall have no
obligation to obtain the prior consent of the holders of 6% Preferred,
individually or as a class, except as expressly provided herein or as provided
by applicable law.
5. Notices. Any notice to be given to the holders of the 6% Preferred
shall be (i) mailed by first class mail postage prepaid to each holder of 6%
Preferred at the address shown on the records of the Corporation for such
holder, (ii) transmitted by telecopy or facsimile transmission to any holder
which has supplied a telecopy or facsimile address to the Corporation, and (iii)
unless receipted for by telecopy or facsimile on the date such notice is given,
shall be transmitted by an overnight delivery service or courier service for
delivery at the address shown on the records of the Corporation for such holder
on the first business day following the date such notice is given, or if
delivery in one business day to such address cannot be effected by such delivery
service, then on the earliest day on which such delivery can be made.
6. Other Provisions. For all purposes of this Resolution, the term "date
of issuance" or "closing" shall mean the day on which shares of the 6% Preferred
are first issued by the Corporation, and the terms "trading price", "low trading
price", "closing price", "last trade price", and "trading days" shall have the
meanings given them in Section 4(e) hereof. Any provision herein which conflicts
with or violates any applicable usury law shall be deemed modified to the extent
necessary to avoid such conflict or violation.
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7. Restrictions and Limitations. The Corporation shall not undertake the
following actions without the consent of the holders of a majority of the 6%
Preferred: (i) modify its Certificate of Incorporation or Bylaws so as to amend
or change any of the rights, preferences, or privileges of the 6% Preferred,
(ii) authorize or issue any other equity security senior to the 6% Preferred, or
(iii) purchase or otherwise acquire for value any Common Stock or other equity
security of the Corporation either junior or senior to or on a parity with the
6% Preferred while there exists any arrearage in the payment of cumulative
dividends hereunder.
8. Voting Rights. Except as provided herein or as provided for by law, the
6% Preferred shall have no voting rights.
9. Attorneys' Fees. Any holder of 6% Preferred shall be entitled to
recover from the Corporation the reasonable attorneys' fees and expenses
incurred by such holder in connection with enforcement by such holder of any
obligation of the Corporation hereunder, if such holder is the prevailing party
in an action or proceeding to compel such enforcement.
10. Limitation on Number of Conversion Shares. The Corporation shall not
be obligated to issue, in the aggregate, more than 3,150,000 shares of Common
Stock as presently constituted (the "Nasdaq Cap") upon conversion of the 6%
Preferred, if issuance of a larger number of shares would constitute a breach of
the Rules or Designation Criteria of the NASDAQ Stock Market (the "NASDAQ
Rules"). Subject to the obligation to effect certain redemptions pursuant to the
last three sentences of this Section, if further issuances of shares of Common
Stock upon conversion of the 6% Preferred would constitute a breach of the
NASDAQ Rules (i.e., all of the shares permitted to be issued under the Nasdaq
Cap shall have been so issued), then so long thereafter as such limitation shall
continue to be applicable and any shares of 6% Preferred are submitted for
conversion such shares shall receive in cash an amount equal to the Cash
Conversion Amount determined as provided in Section 4(f) hereof, in lieu of the
Common Stock which such shares would otherwise be entitled to receive upon
conversion. Payment of the Cash Conversion Amount shall be made no later than as
specified in Section 4(f) and shall bear daily interest thereafter at the rate
of one-tenth of one percent per day until paid. The NASDAQ Cap shall be
proportionately and equitably adjusted in the event of stock splits, stock
dividends, reverse stock splits, reclassifications or other such events, in such
manner as the Board of Directors of the Corporation shall reasonably determine.
If (A) the Corporation is unable to obtain the requisite shareholder approval
concerning the issuance of shares of Common Stock upon conversion of the 6%
Preferred to satisfy the NASDAQ Rules prior to December 31, 1997, then (B) the
Corporation shall immediately redeem, at a "Special Redemption Price" equal to
110% of the liquidation preference of such shares, the smallest number of Shares
which is sufficient, in the Corporation's reasonable judgment, such that
following such redemption, conversion of the remaining shares of 6% Preferred
would not constitute a breach of the Corporation's obligations under the NASDAQ
Rules. Any redemption effected pursuant to the preceding sentence shall require
15 days' notice and the Redemption Date shall be not more than 15 days after the
date specified in Clause A of the preceding sentence. Such redemption shall be
made pro-rata. If there shall be a default in payment of the Special Redemption
Price, the amount so payable shall bear daily interest from and after the
Redemption Date at the rate of one-tenth of one percent per day until paid.
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