EXHIBIT 10.1
CERTIFICATE OF INCORPORATION
OF
DOW JONES & COMPANY, INC.
(As amended April 22, 1988,April 25, 1989 and April 21, 2003)
Dow Jones & Company, Inc., a Delaware corporation, hereby certifies as follows:
FIRST. The name of the corporation is Dow Jones & Company, Inc.
SECOND. Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The
name and address of its registered agent is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on, are:
(a) To gather, collect, purchase, analyze, prepare, edit, publish
and distribute by newspapers, magazines, books, periodicals and other
publications, by ticker, by news bulletins and by other methods, news, comment
and quotations of all kinds and descriptions;
(b) To edit, publish, print, conduct and circulate, or otherwise
deal with, any newspapers, news services, magazines, books, periodicals,
bulletins and other publications, and news, comment and quotations of all kinds
and descriptions, and, in general, to carry on the business of collecting,
editing, transmitting, publishing and disseminating news, comment and opinion in
any form or manner;
(c) To purchase or otherwise acquire and to sell, either as
principal or agent, newspapers, news services, magazines, books, periodicals and
other publications of all kinds and descriptions, stationery and stationer's
supplies, and, generally, to carry on the business of wholesale and retail book
sellers and stationers;
(d) To design, manufacture, buy, sell, lease, operate, maintain,
service and deal in and with news tickers, stock, bond and other tickers, and
other receiving, transmitting and recording instruments, printing, engraving and
lithographing machinery, and other machines, machinery and apparatus of all
kinds and descriptions for receiving, transmitting, publishing and recording
news, comment and quotations;
(e) To design, manufacture, buy, sell, lease, operate, maintain,
service and deal in and with all kinds of machines, machinery and equipment;
(f) To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, and mortgage or otherwise dispose of, letters patent of the United
States or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and trade names,
relating to or useful in connection with any business of the corporation;
(g) To carry on a general advertising and publicity business in all
its branches, either as principal or agent, and to acquire and operate
franchises or privileges for the performance of the purposes of the corporation;
(h) To conduct, and carry on the business of a printer, publisher,
lithographer, stereotyper, electrotyper, photographic printer, engraver,
bookbinder and stationer, including the printing and publication of newspapers,
news services, magazines, news bulletins, stock, bond and other quotations and
news, books, pamphlets, periodicals, posters, circulars, envelopes, bill and
letterheads, cards, tags, labels, commercial, financial and law blanks and forms
of every description; and, in general, to carry on and conduct the business of a
printer and publisher;
(i) To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade in,
deal in and deal with goods, wares and merchandise and personal property of
every class and description;
(j) To purchase, buy, sell, exchange, own, hold, maintain, work,
develop, convey, mortgage, lease, let, hire and otherwise acquire, dispose of or
deal in and with real estate and personal property, wheresoever situated, in any
part of the world, and without limit as to the amount or value thereof, and any
interest or right or rights therein, and to improve or deal with such property
in any way permitted by law;
(k) To borrow or raise moneys for any of the purposes of the
corporation and, from time to time, without limit as to amount, to draw, make,
accept, endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the corporation, whether at
the time owned or thereafter acquired, and to sell, pledge or otherwise dispose
of such bonds or other obligations of the corporation for its corporate
purposes, and to confer upon the holders of any of its bonds or other
obligations such powers, rights and privileges as from time to time may be
deemed advisable by the board of directors, to the extent permitted by law;
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(l) To acquire by purchase, subscription or otherwise, and to
receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares of the
capital stock, or any voting trust certificates in respect of the shares of
capital stock, scrip, warrants, rights, bonds, debentures, notes, trust
receipts, and other securities, obligations, choses in action and evidences of
indebtedness or interest issued or created by any corporations, joint stock
companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or other
political subdivision or by any governmental agency, and as owner thereof to
possess and exercise all of the rights, powers and privileges of ownership,
including the right to execute consents and vote thereon, and to do any and all
acts and things necessary or advisable for the preservation, protection,
improvement and enhancement in value thereof;
(m) To lend and advance money and extend credit to any person, firm
or corporation, either with or without security;
(n) To purchase or otherwise acquire, hold, cancel, reissue, sell,
pledge, exchange, transfer or otherwise deal in its own securities, including
shares of its capital stock of any class, from time to time and to such extent
and in such manner and upon such terms as the board of directors shall
determine; provided it shall not use its funds or property for the purchase of
its own shares of capital stock when such use would cause any impairment of its
capital except as otherwise permitted by law, and provided further that shares
of its own capital stock belonging to it shall not be voted upon directly or
indirectly;
(o) To acquire, and pay for in cash, stock or bonds of this
corporation or otherwise, the good will, rights, assets and property, and to
undertake or assume the whole or any part of the obligations or liabilities of
any person, firm, association, trust or corporation;
(p) To apply for, purchase, or acquire by assignment, transfer or
otherwise, and to exercise, carry out and enjoy any and all rights under any
statute, ordinance, order, license, power, authority, franchise, concession or
privilege which any government or authority, or any other corporate or public
body, may be empowered to enact, make or grant, and to pay for, aid in and
contribute toward carrying the same into effect, and to appropriate any of the
corporation's stock, bonds, debentures, notes and other securities and assets to
defray the necessary costs, charges and expenses thereof;
(q) To enter into, make and perform contracts of every kind and
description with any person, firm, association, trust, corporation,
municipality, county, state, body politic or government or colony or dependency
thereof;
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(r) To consolidate with or merge into any one or more other
corporations whenever and however organized;
(s) To have one or more offices and to carry on all or any of its
operations and business in any of the states, districts, territories or
possessions of the United States, and in any and all foreign countries, subject
to the laws of such state, district, territory, possession or country;
(t) In general, to carry on any other business in connection with
the foregoing, and to have and exercise all the powers conferred by the laws of
Delaware upon corporations formed under the General Corporation Law of the State
of Delaware.
The objects and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this certificate of
incorporation, but the objects and purposes specified in each of the foregoing
clauses of this Article shall be regarded as independent objects and purposes,
and the enumeration of specific objects and purposes shall not be construed to
restrict in any manner the general objects and purposes of the corporation, nor
shall the expression of one thing be deemed to exclude another, although it be
of like nature. The enumeration of objects and purposes herein shall not be
deemed to exclude or in any way limit by inference any powers, objects or
purposes which the corporation is empowered to exercise, whether expressly by
force of the laws of Delaware, now or hereafter in effect, or impliedly by any
reasonable construction of said laws.
FOURTH. The total number of shares of all classes which the corporation
shall have authority to issue is One Hundred Sixty Million (160,000,000),
consisting of One Hundred Thirty-five Million (135,000,000) shares of common
stock of the par value of $1 per share (hereinafter called "Common Stock") and
Twenty-five Million (25,000,000) shares of class B common stock of the par value
of $1 per share (hereinafter called "Class B Common Stock").
1. (a) At every meeting of the stockholders every holder of Common
Stock shall be entitled to one (1) vote in person or by proxy for each share of
Common Stock standing in his name on the stock transfer records of the
corporation and every holder of Class B Common Stock shall be entitled to ten
(10) votes in person or by proxy for each share of Class B Common Stock standing
in his name on the stock transfer records of the corporation, provided that at
every meeting of the stockholders called for the election of directors the
holders of Common Stock, voting separately as a class, shall be entitled to
elect one-third (1/3) of the number of directors to be elected at such meeting,
and if one-third (1/3) of such number of directors is not a whole number, then
the holders of Common Stock, voting separately as a class, shall be entitled to
elect the next higher whole number of directors to be elected at such meeting,
and the holders of Class B Common Stock shall have no voting rights with respect
to the election of such
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directors. Directors elected by the holders of Common Stock, voting separately
as a class, may be removed, with or without cause, only by a vote of the holders
of a majority of the shares of Common Stock then outstanding, voting separately
as a class. If, during the interval between annual meetings of stockholders for
the election of directors, the number of directors who have been elected by the
holders of Common Stock voting separately as a class shall, by reason or
resignation, death or removal, be reduced, the vacancy or vacancies in the
directors elected by the holders of Common Stock voting separately as a class
shall be filled by a majority vote of the remaining directors then in office,
even if less than a quorum, and if not so filled within forty days after the
creation of such vacancy or vacancies, the Secretary of the corporation shall
call a special meeting of the holders of Common Stock and such vacancy or
vacancies shall be filed at such special meeting. Any director elected to fill
any such vacancy by the remaining directors then in office may be removed from
office by vote of the holders of a majority of the shares of Common Stock voting
separately as a class.
(b) Every reference in this certificate of incorporation to a
majority or other proportion of shares of stock shall refer to such majority or
other proportion of the votes of such shares of stock.
2. (a) No person holding shares of Class B Common Stock (hereinafter
called a "Class B Holder") may transfer, and the corporation shall not register
the transfer of, such shares of Class B Common Stock, whether by sale,
assignment, gift, bequest, appointment or otherwise, except to a Permitted
Transferee of such Class B Holder, which term shall have the following meanings:
(i) In the case of a Class B Holder who is a natural person holding
record and beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means (A) the spouse of such Class B Holder,
(B) a lineal descendant of a great grandparent of such Class B Holder, (C) the
trustee of a trust (including a voting trust) for the benefit of one or more of
such Class B Holder, other lineal descendants of a great grandparent of such
Class B Holder, the spouse of such Class B Holder, and an organization
contributions to which are deductible for federal income, estate or gift tax
purposes (hereinafter called a "Charitable Organization"), and for the benefit
of no other person, provided that such trust may grant a general or special
power of appointment to such spouse and may permit trust assets to be used to
pay taxes, legacies and other obligations of the trust or the estate of such
Class B Holder payable by reason of the death of such Class B Holder and
provided that such trust must prohibit transfer of shares of Class B Common
Stock to persons other than Permitted Transferees as defined in clause (ii)
below, (D) a Charitable Organization established by such Class B Holder, such
Class B Holder's spouse or a lineal descendant of a great grandparent of such
Class B Holder, (E) a corporation all of the outstanding capital stock of which
is owned by, or a partnership all of the partners of which are, one or more of
such Class B Holder, other lineal
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descendants of a great grandparent of such Class B Holder, and the spouse of
such Class B Holder, provided that if any share of capital stock of such a
corporation (or of any survivor of a merger or consolidation of such a
corporation), or any partnership interest in such a partnership, is acquired by
any person who is not within such class of persons, all shares of Class B Common
Stock then held by such corporation or partnership, as the case may be, shall be
deemed without further act on anyone's part to be converted into shares of
Common Stock, and stock certificates formerly representing such shares of Class
B Common Stock shall thereupon and thereafter be deemed to represent the like
number of shares of Common Stock.
(ii) In the case of a Class B Holder holding the shares of Class B
Common Stock in question as trustee pursuant to a trust other than a trust
described in clause (iii) below, "Permitted Transferee" means (A) the person who
established such trust, and (B) a Permitted Transferee of such person determined
pursuant to clause (i) above.
(iii) In the case of a Class B Holder holding the shares of Class B
Common Stock in question as trustee pursuant to a trust which was irrevocable on
the record date (hereinafter in this paragraph 2 called the "Record Date") for
determining the persons to whom the Class B Common Stock is first distributed by
the corporation, "Permitted Transferee" means any person to whom or for whose
benefit principal may be distributed either during or at the end of the term of
such trust whether by power of appointment or otherwise.
(iv) In the case of a Class B Holder holding record (but not
beneficial) ownership of the shares of Class B Common Stock in question as
nominee for the person who was the beneficial owner thereof on the Record Date,
"Permitted Transferee" means such beneficial owner and a Permitted Transferee of
such beneficial owner determined pursuant to clauses (i), (ii), (iii), (v) or
(vi) hereof, as the case may be.
(v) In the case of a Class B Holder which is a partnership
holding record and beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means any partner of such partnership.
(vi) In the case of a Class B Holder which is a corporation (other
than a Charitable Organization described in subclause (D) of clause (i) above)
holding record and beneficial ownership of the shares of Class B Common Stock in
question, "Permitted Transferee" means any stockholder of such corporation
receiving shares of Class B Common Stock through a dividend or through a
distribution made upon liquidation of such corporation, and the
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survivor of a merger or consolidation of such corporation.
(vii) In the case of a Class B Holder which is the estate of a
deceased Class B Holder, or which is the estate of a bankrupt or insolvent Class
B Holder, and provided such deceased, bankrupt or insolvent Class B Holder, as
the case may be, held record and beneficial ownership of the shares of Class B
Common Stock in question, "Permitted Transferee" means a Permitted Transferee of
such deceased, bankrupt or insolvent Class B Holder as determined pursuant to
clauses (i), (v) or (vi) above, as the case may be.
(b) Notwithstanding anything to the contrary set forth herein, any
Class B Holder may pledge such Holder's shares of Class B Common Stock to a
pledgee pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares shall not be
transferred to or registered in the name of the pledgee and shall remain subject
to the provisions of this paragraph 2. In the event of foreclosure or other
similar action by the pledgee, such pledged shares of Class B Common Stock may
only be transferred to a Permitted Transferee of the pledgor or converted into
shares of Common Stock, as the pledgee may elect.
(c) For purposes of this paragraph 2:
(i) The relationship of any person that is derived by or though
legal adoption shall be considered a natural one.
(ii) Each joint owner of shares of Class B Common Stock shall be
considered a "Class B Holder" of such shares.
(iii) A minor for whom shares of Class B Common Stock are held
pursuant to a Uniform Gifts to Minors Act or similar law shall be considered a
Class B Holder of such shares.
(iv) Unless otherwise specified, the term "person" means both
natural persons and legal entities.
(d) Any purported transfer of shares of Class B Common Stock not
permitted hereunder shall be void and of no effect and the purported transferee
shall have no rights as a stockholder of the corporation and no other rights
against or with respect to the corporation. The corporation may, as a condition
to the transfer or the registration of transfer of shares of Class B Common
Stock to a purported Permitted Transferee, require the furnishing of such
affidavits or other proof as it deems necessary to establish that such
transferee is a Permitted Transferee. The corporation may note on the
certificates for shares of Class B Common Stock the restrictions on transfer
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and registration of transfer imposed by this paragraph 2.
(e) When the number of outstanding shares of Class B Common Stock
falls below Twelve Million (12,000,000), or such higher number as results from
adjustments for stock splits or stock dividends, the outstanding shares of Class
B Common Stock shall be deemed without further act on anyone's part to be
converted into shares of Common Stock, and stock certificates formerly
representing outstanding shares of Class B Common Stock shall thereupon and
thereafter be deemed to represent the like number of shares of Common Stock.
3. (a) Each shares of Class B Common Stock may at any time be
converted into one (1) fully paid and nonassessable share of Common Stock. Such
right shall be exercised by the surrender of the certificate representing such
share of Class B Common Stock to be converted to the corporation at any time
during normal business hours at the principal executive offices of the
corporation, or if an agent for the registration of transfer of shares of Class
B Common Stock is then duly appointed and acting (said agent being hereinafter
called the "Transfer Agent") then at the office of the Transfer Agent,
accompanied by a written notice of the election by the holder thereof to convert
and (if so required by the corporation or the Transfer Agent) by instruments of
transfer, in form satisfactory to the corporation and to the Transfer Agent,
duly executed by such holder or his duly authorized attorney, and transfer tax
stamps or funds therefor, if required pursuant to subparagraph (e) below.
(b) As promptly as practicable after the surrender for conversion
of a certificate representing shares of Class B Common Stock in the manner
provided in subparagraph (a) above and the payment in cash of any amount
required by the provisions of subparagraphs (a) and (e), the corporation will
deliver or cause to be delivered at the office of the Transfer Agent to or upon
the written order of the holder of such certificate, a certificate or
certificates representing the number of full shares of Common Stock issuable
upon such conversion, issued in such name or names as such holder may direct.
Such conversion shall be deemed to have been made immediately prior to the close
of business on the date of the surrender of the certificate representing shares
of Class B Common Stock, and all rights of the holder of such shares as such
holder shall cease at such time and the person or persons in whose name or names
the certificate or certificates representing the shares of Common Stock are to
be issued shall be treated for all purposes as having become the record holder
or holders of such shares of Common Stock at such time; provided, however, that
any such surrender and payment on any date when the stock transfer books of the
corporation shall be closed shall constitute the person or persons in whose name
or names the certificate or certificates representing shares of Common Stock are
to be issued as the record holder or holders thereof for all purposes
immediately prior to the close of business on the next succeeding day on which
such stock transfer books are open.
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(c) No adjustments in respect of dividends shall be made upon the
conversion of any share of Class B Common Stock, provided, however, that if a
share shall be converted subsequent to the record date for the payment of a
dividend or other distribution on shares of Class B Common Stock but prior to
such payment, the registered holder of such share at the close of business on
such record date shall be entitled to receive the dividend or other distribution
payable on such share on such date notwithstanding the conversion thereof or the
corporation's default in payment of the dividend due on such date.
(d) The corporation covenants that it will at all times reserve and
keep available, solely for the purpose of issue upon conversion of the
outstanding shares of Class B Common Stock, such number of shares of Common
Stock as shall be issuable upon the conversion of all such outstanding shares,
provided, that nothing contained herein shall be construed to preclude the
corporation from satisfying its obligations in respect of the conversion of the
outstanding shares of Class B Common Stock by delivery of purchased shares of
Common Stock which are held in the treasury of the corporation. The corporation
covenants that if any shares of Common Stock, required to be reserved for
purposes of conversion hereunder, require registration with or approval of any
governmental authority under any federal or state law before such shares of
Common Stock may be issued upon conversion, the corporation will cause such
shares to be duly registered or approved, as the case may be. The corporation
will endeavor to list the shares of Common Stock required to be delivered upon
conversion prior to such delivery upon each national securities exchange upon
which the outstanding Common Stock is listed at the time of such delivery. The
corporation covenants that all shares of Common Stock which shall be issued upon
conversion of the shares of Class B Common Stock, will, upon issue, be fully
paid and nonassessable and not subject to any preemptive rights.
(e) The issuance of certificates for shares of Common Stock upon
conversion of shares of Class B Stock shall be made without charge for any stamp
or other similar tax in respect of such issuance. However, if any such
certificate is to be issued in a name other than that of the holder of the share
or shares of Class B Common Stock converted, the person or persons requesting
the issuance thereof shall pay to the corporation the amount of any tax which
may be payable in respect of any transfer involved in such issuance or shall
establish to the satisfaction of the corporation that such tax has been paid.
4. Each share of Common Stock and Class B Common Stock shall be
equal in respect of rights to dividends and other distributions in cash, stock
or property of the corporation, provided that in the case of dividends or other
distributions payable in stock of the corporation, including distributions
pursuant to stock split-ups or divisions of stock of the corporation, which
occur after the date shares of Class B Common Stock are first issued by the
corporation, only shares of Common Stock shall be distributed with respect
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to Common Stock and only shares of Class B Common Stock shall be distributed
with respect to Class B Common Stock.
5. Except as otherwise provided in paragraph 4 above, the
corporation shall not issue additional shares of Class B Common Stock after the
date shares of Class B Common Stock are first issued by the corporation, and all
shares of Class B Common Stock surrendered for conversion shall be retired,
unless otherwise approved by the affirmative vote of the holders of a majority
of the outstanding shares of stock of the corporation entitled to vote.
6. The number of authorized shares of any class or classes of
stock of the corporation may be increased or decreased by the affirmative vote
of the holders of a majority of the outstanding shares of stock of the
corporation entitled to vote.
7. No stockholder of the corporation shall be entitled as of right
to subscribe for, purchase or receive any part of any new or additional issue of
stock of any class, whether now or hereafter authorized, or of bonds, debentures
or other securities convertible into or exchangeable for stock, but all such
additional shares of stock of any class, or bonds, debentures or other
securities convertible into or exchangeable for stock, may be issued and
disposed of by the board of directors on such terms and for such consideration,
so far as may be permitted by law, and to such persons, as the board of
directors in its absolute discretion may deem advisable.
FIFTH. The following provisions regarding the election and removal of
directors are established:
(a) The number of directors of the corporation shall be not less
than sixteen or more than eighteen, and, subject to such limitation, shall be
fixed from time to time by or pursuant to the bylaws. In addition to any other
vote required by law or by this certificate of incorporation, so long as there
shall be any Class B Common Stock outstanding, this Section Fifth(a) shall not
be amended, altered or repealed without the affirmative vote of a majority of
the outstanding shares of Common Stock and the affirmative vote of a majority of
the outstanding shares of Class B Common Stock, each voting separately as a
class.
(b) An annual meeting of stockholders shall be held for the
election of directors on a date and at a time designated by or in the manner
provided in the bylaws. Each director shall hold office for a term of one year
and until such director's successor is elected and qualified or until such
director's earlier resignation or removal; provided, however, each director
elected at the annual meetings of the corporation held in 2001, 2002 and
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2003 shall serve for the full three-year term to which such director was elected
or until such director's earlier resignation or removal.
(c) No director shall stand for election on or after his or her
70th birthday. Nominations for the election of directors may be made by the
board of directors or by any stockholder entitled to vote in the election of
directors. However, any stockholder entitled to vote in the election of
directors may nominate one or more persons for election as director only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the corporation not later than (i)
with respect to an election to be held at an annual meeting of stockholders, 45
days in advance of the calendar day on which the corporation's proxy statement
was released to stockholders in connection with the previous year's annual
meeting of stockholders and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of directors, the close of
business on the seventh day following the day on which notice of such meeting is
first given to stockholders. Each such notice shall set forth: (A) the name and
address of the stockholder who intends to make the nomination or nominations and
of the person or persons to be nominated; (B) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (C) a description of all
arrangements or understandings between such stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations is or are to be made by the stockholders; (D) such
other information regarding each nominee proposed by such stockholder as would
have been required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission if the nominee had been
nominated by the board of directors; and (E) the consent of each nominee to
serve as a director of the corporation if elected. The chairman of any meeting
of stockholders may refuse to acknowledge the nomination of any person if not
made in compliance with the foregoing procedure. Notwithstanding any other
provision of this certificate of incorporation or the bylaws (and
notwithstanding the fact that a lesser percentage may be specified by law, this
certificate of incorporation or the bylaws), the affirmative vote of the holders
of at least 80% of the voting power of the outstanding Voting Stock, voting
together as a single class, shall be required to alter, amend, adopt any
provision inconsistent with, or repeal this Section Fifth (c)
(d) Newly created directorships resulting from any increase in the
number of directors and any vacancies on the board of directors resulting from
resignation, retirement, death, disqualification, removal, or other cause
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may be filled by a majority of the remaining directors then in office, even if
less than a quorum, except as Article Fourth otherwise provides with respect to,
if Class B Common Stock is outstanding, the election of directors by the holders
of the Common Stock voting separately as a class. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the newly created or vacated directorship and until such
director's successor has been elected and has qualified. No decrease in the
number of directors constituting the board of directors shall shorten the term
of any incumbent director. Notwithstanding any other provision of this
certificate of incorporation or the bylaws (and notwithstanding the fact that a
lesser percentage may be specified by law, this certificate of incorporation or
the bylaws), the affirmative vote of the holders of at least 80% of the voting
power of the outstanding Voting Stock, voting together as a single class, shall
be required to alter, amend, adopt any provision inconsistent with, or repeal
this Section Fifth (d).
SIXTH. Any action required or permitted to be taken by the stockholders of
the corporation must be taken at a duly called annual or special meeting of
stockholders and may not be taken by any consent in writing of such holders.
Special meetings of stockholders of the corporation may be called only by a
majority vote of the whole board of directors, except as otherwise required by
law and except as Article Fourth otherwise provides with respect to special
meetings to be called for the purpose of the election of directors by, if Class
B Common Stock is outstanding, the holders of the Common Stock voting separately
as a class. Notwithstanding any other provision of this certificate of
incorporation or the bylaws (and notwithstanding the fact that a lesser
percentage may be specified by law, this certificate of incorporation or the
bylaws), the affirmative vote of the holders of at least 80% of the voting power
of the outstanding Voting Stock, voting together as a single class, shall be
required to alter, amend, adopt any provision inconsistent with, or repeal this
Article Sixth.
SEVENTH. The following provisions concerning certain actions and
transactions are established:
(a) In addition to any affirmative vote required by law or this
certificate of incorporation, and except as otherwise expressly provided in
paragraph (c) of this Article Seventh:
(i) any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (A) any Interested Stockholder (as
hereinafter defined) or (B) any other person (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of any Interested Stockholder; or
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(ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or in a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested Stockholder
of any assets of the corporation or any Subsidiary having an aggregate Fair
Market Value (as hereinafter defined) of $25 million or more; or
(iii) the issuance or transfer by the corporation or any
Subsidiary (in one transaction or in a series of transactions) of any securities
of the corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market Value
of $25 million or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the corporation, or any merger or
consolidation of the corporation with any Subsidiary or any other transaction
(whether or not with or into or otherwise involving any Interested Stockholder)
which has the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of Equity Security (as hereinafter
defined) of the corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder or any Affiliate of any Interested
Stockholder; shall require the affirmative vote of the holders of at least 80%
of the voting power of the outstanding shares of capital stock of the
corporation entitled to vote for the election of directors (the "Voting Stock"),
voting together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(b) The term "Business Combination" means any transaction described
in clauses (i) through (v) of paragraph (a) of this Article Seventh.
(c) The provisions of paragraph (a) of this Article Seventh shall
not be applicable to a Business Combination, and the Business Combination shall
require only the affirmative vote required by law and any other provision of
this certificate of incorporation, if all of the conditions specified in either
of the following subparagraphs (i) or (ii) are met:
(i) The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter defined).
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(ii) All of the following conditions shall have been met:
(A) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of Common
Stock and Class B Common Stock in the Business Combination is at least equal to
the highest of the following:
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder in question for any shares of Common
Stock acquired by it (x) within the two-year period immediately prior to the
first public announcement of the terms of the proposed Business Combination (the
"Announcement Date") or (y) in the transaction in which such Interested
Stockholder became an Interested Stockholder; or
(2) the Fair Market Value per share of Common Stock on
the Announcement Date; or
(3) the Fair Market Value per share of Common Stock on
the date on which the Interested Stockholder in question became an Interested
Stockholder (the "Determination Date").
(B) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of any other
class of outstanding Voting Stock is at least equal to the highest of the
following:
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder in question for any shares of such
class of Voting Stock acquired by it (x) within the two-year period immediately
prior to the Announcement Date or (y) in the transaction in which such
Interested Stockholder became an Interested Stockholder; or
(2) (if applicable) the highest preferential amount per
share to which the holders of such class of Voting Stock are entitled in the
event of any
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voluntary or involuntary liquidation or dissolution of the corporation; or
(3) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date; or
(4) the Fair Market Value per share of such class of
Voting Stock on the Determination Date.
(C) The consideration to be received by holders of a
particular class of outstanding Voting Stock is in cash or in the same form as
the Interested Stockholder in question has previously paid for shares of such
class of Voting Stock, provided that the consideration to be received by holders
of Class B Common Stock must be in cash or in the same form as such Interested
Stockholder has previously paid for Common Stock. If the Interested Stockholder
in question has previously paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration to be paid for shares
of such class of Voting Stock purchased in the transaction in question hereunder
must be either cash or the form used previously by such Interested Stockholder
to acquire the largest number of shares of such class of Voting Stock. The price
determined in accordance with subparagraphs (ii)(A) and (ii)(B) of this
paragraph (c) shall be subject to appropriate adjustment in the event of any
stock dividend, stock split, combination of shares or similar event.
(D) After the Interested Stockholder in question has become
an Interested Stockholder and prior to the consummation of such Business
Combination: (1) except as approved by a majority of the Continuing Directors,
there shall have been no failure to declare and pay, in whole or in part, at the
regular date therefor any dividends (whether or not cumulative) on the
outstanding stock having preference over the Common Stock as to dividends or
upon liquidation; (2) there shall have been (x) no reduction in the annual rate
of dividends paid on Common Stock or Class B Common Stock (except as necessary
to reflect any subdivision of the Common Stock or Class B Common Stock), except
as approved by a majority of the Continuing Directors, and (y) no increase in
such annual rate of dividends (except as necessary to reflect 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 Common Stock or Class B Common Stock, except as
approved by a majority of the Continuing Directors; and (3) such Interested
Stockholder shall not have become the
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beneficial owner of any additional shares of Voting Stock subsequent to the
transaction in which it became an Interested Stockholder.
(E) After the Interested Stockholder in question has become
an Interested Stockholder, it shall not have received the benefit, directly or
indirectly (except proportionately with all other stockholders of the
corporation), 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.
(F) 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
to the 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).
(d) For purposes of this Article Seventh:
(i) a "person" means any individual, proprietorship,
partnership, corporation or other entity, or any group of two or more of the
foregoing acting together;
(ii) "Interested Stockholder" means any person (other than
the corporation or any Subsidiary) who or which:
(A) is the beneficial owner, directly or indirectly, of
10% or more of the voting power of the outstanding Voting Stock; or
(B) is an Affiliate of the corporation and at any time
within the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting power of
the then outstanding Voting Stock; or
(C) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by an Interested
Stockholder, if such assignment or succession occurred in the course of a
transaction or
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series of transactions not involving a public offering within the meaning of the
Securities Act of 1933.
(iii) A person is a "beneficial owner" of any Voting Stock:
(A) that such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns directly or indirectly; or
(B) that such person or any of its Affiliates or Associates
has (1) the right to acquire (whether such right is exercisable immediately or
only after the passage of time or upon the occurrence of an event, or both)
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (2)
the right to vote pursuant to any agreement, arrangement or understanding; or
(C) that is beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
(iv) For the purpose of determining whether a person is an
Interested Stockholder pursuant to subparagraph (ii) of this paragraph (ii) of
this paragraph (d), the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application of
subparagraph (iii) of this paragraph (d), but shall not include any other shares
of Voting Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion right, warrants or options, or
otherwise.
(v) "Affiliate" and "Associate" 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 March 1,
1986.
(vi) "Subsidiary" means any corporation of which a majority
of any class of Equity Security is owned, directly or indirectly, by the
corporation, provided that for the purposes of the definition of Interested
Stockholder set forth in subparagraph (ii) of this paragraph (d), the term
"Subsidiary"
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shall mean only a corporation of which a majority of each class of Equity
Security is owned, directly or indirectly, by the corporation.
(vii) "Continuing Director" means (A) any member of the board
of directors who was a member of the board on April 15, 1986, (B) any member of
the board of directors who is unaffiliated with the Interested Stockholder in
question and who was a member of the board prior to the time that such
Interested Stockholder became an Interested Stockholder, and (C) any member of
the board of directors who was nominated or elected by a majority of Continuing
Directors then on the board of directors.
(viii) "Fair Market Value" means (A) 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 bid quotation with
respect to a share of such stock during the 30-day period immediately preceding
the date in question on the National Association of Securities Dealers, Inc.
Automated Quotations System 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 the board of directors in good faith and (B) 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.
(ix) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be received"
as used in subparagraphs (ii)(A) and (B) of paragraph (c) of this Article
Seventh shall include the shares of Common Stock, Class B Common Stock and the
shares of any other class of outstanding Voting Stock retained by the holders of
such shares.
(x) "Equity Security" has the meaning ascribed to such term
in Section 3(a)(11) of the Securities Exchange Act of 1934, as in effect on
March 1, 1986.
(e) A majority of the entire board of director shall have the power
and duty to determine for purposes of this Article Seventh, on the basis of
information known to the directors after reasonable inquiry, (i) whether a
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person is an Interested Stockholder, (ii) the number of shares of Voting Stock
beneficially owned by any person, (iii) whether a person is an Affiliate or
Associate of another, and (iv) whether the assets that are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $25 million or more. A
majority of the entire board of directors shall have the further power to
interpret all of the terms and provisions of this Article Seventh.
(f) Nothing contained in this Article Seventh shall be construed to
relieve any Interested Stockholder of any fiduciary obligation imposed by law.
(g) Notwithstanding any other provision of this certificate of
incorporation or the bylaws (and notwithstanding the fact that a lesser
percentage may be specified by law, this certificate of incorporation or the
bylaws), the affirmative vote of the holders of at least 80% of the voting power
of the outstanding Voting Stock, voting together as a single class, shall be
required to alter, amend, adopt any provision inconsistent with, or repeal this
Article Seventh.
EIGHTH. The board of directors of the corporation, when evaluating any
actions or transactions described in paragraph (a) of Article Seventh of this
certificate of incorporation, shall give due consideration to all relevant
factors, including without limitation the effect of such action or transaction
upon the independence and integrity of the corporation's publications and
services and the social and economic effects of such action or transaction upon
the corporation's stockholders, employees, subscribers, readers, advertisers,
customers, suppliers and other constituencies, and on the communities in which
the corporation and its subsidiaries operate or are located.
NINTH. The minimum amount of capital with which the corporation will
commence business is One Thousand Dollars ($1,000).
TENTH. The names and places of residence of the incorporators are as
follows:
Guy Bancroft...... 164 Riverway
Boston, Massachusetts
Richard B. Cole..... 64 Valentine Park
West Newton, Massachusetts
Laurence M. Lombard.. Dedham, Massachusetts
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ELEVENTH. The corporation is to have perpetual existence.
TWELFTH. The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatever.
THIRTEENTH. In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
(a) To make, alter or repeal the bylaws of the corporation;
(b) To authorize and cause to be executed mortgages and liens upon
the real and personal property of the corporation;
(c) To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose and to
abolish any such reserve in the manner in which it was created;
(d) By resolution or resolutions passed by a majority of the whole
board, to designate one or more committees, each committee to consist of two or
more of the directors of the corporation, which, to the extent provided in said
resolution or resolutions or in the bylaws of the corporation, shall have and
may exercise the powers of the board of directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be stated in the bylaws of the
corporation or as may be determined from time to time by resolution adopted by
the board of directors;
(e) When and as authorized by the affirmative vote of the holders
of a majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of the holders of a majority of the voting stock issued and
outstanding, to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and for the best
interests of the corporation;
(f) From time to time to determine whether and to what extent, at
what time and place and under what conditions and regulations the accounts and
books of the corporation or any of them shall be open to the inspection of any
stockholders; and no stockholder shall have any right to inspect any account or
book or document of the corporation except as conferred by
20
statute or bylaws or as authorized by a resolution of the stockholders or board
of directors.
FOURTEENTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or under any
similar provisions enacted in place thereof or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code or under any
similar provisions enacted in place thereof, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said Court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the Court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders of this corporation, as the case
may be, and also on this corporation.
FIFTEENTH. A director of the corporation shall not be disqualified by his
office from dealing or contracting with the corporation either as a vendor,
purchaser or otherwise, nor shall any transaction or contract of the corporation
be void or voidable by reason of the fact that any director or any firm of which
any director is a member or any corporation of which any director is a
shareholder, officer or director, is in any way interested in such transaction
or contract, provided that such transaction or contract is or shall be
authorized, ratified or approved (1) by a vote of a majority of a quorum of the
board of directors without including in such majority or quorum any director so
interested or member of a firm so interested, or a shareholder, officer or
director of a corporation so interested, or (2) by the written consent of the
holders of record of a majority of the outstanding shares of stock of the
corporation entitled to vote, or (3) by the affirmative vote of the holders of a
majority of stock of the corporation represented at any meeting at which a
quorum is present, and provided further that such interest shall have been fully
disclosed or otherwise known to the directors or stockholders authorizing,
ratifying or approving such transaction or contract; nor shall any director be
liable to account to the corporation for any profits realized by or from or
through any such transaction or contract of the corporation authorized, ratified
or approved as aforesaid by reason of the fact that he, or any firm of which he
is a member or any corporation of which he is a shareholder, officer or director
was interested in such transaction or contract. Nothing herein
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contained shall create liability in the events above described or prevent the
authorization, ratification or approval of such transactions or contracts in any
other manner permitted by law.
SIXTEENTH. Meetings of stockholders may be held without the State of
Delaware, if the bylaws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside of the State of
Delaware at such place or places as may be from time to time designated by the
board of directors or in the bylaws of the corporation. Elections of directors
need not be by ballot unless the bylaws of the corporation shall so provide.
SEVENTEENTH. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. Neither the amendment nor the repeal of this Article
Seventeenth, nor the adoption of any provision of the certificate of
incorporation inconsistent with this Article Seventeenth, shall eliminate or
reduce the effect of this Article Seventeenth on any cause of action that arises
out of an act or omission of a director occurring prior to such amendment,
repeal or adoption.
EIGHTEENTH. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
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