<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1996
REGISTRATION NO. 333-6621
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
SUBURBAN OSTOMY SUPPLY CO., INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 5047 04-2675674
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
75 OCTOBER HILL ROAD
HOLLISTON, MA 01746
(508) 429-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
HERBERT P. GRAY
CHIEF EXECUTIVE OFFICER
SUBURBAN OSTOMY SUPPLY CO., INC.
75 OCTOBER HILL ROAD
HOLLISTON, MA 01746
(508) 429-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JAMES WESTRA, ESQUIRE JOHN J. HUBER, ESQUIRE
HUTCHINS, WHEELER & DITTMAR LATHAM & WATKINS
A PROFESSIONAL CORPORATION SUITE 1300
101 FEDERAL STREET 1001 PENNSYLVANIA AVENUE, N.W. WASHINGTON,
BOSTON, MASSACHUSETTS 02110 DC 20004
(617) 951-6600 (202) 637-2200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to a dividend or interest reinvestment plan, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES
AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
[PART II OF THE REGISTRATION STATEMENT IS BEING FILED WITH THIS AMENDMENT NO. 3
SOLELY FOR THE PURPOSE OF FILING EXHIBITS 3.3, 3.4 AND 4.1]
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses (other than underwriting discounts and commissions) payable in
connection with the sale of the Common Stock offered hereby (including the
Common Stock which may be issued pursuant to an over-allotment option) are as
follows:
<TABLE>
<CAPTION>
AMOUNTS
-----------
<S> <C>
SEC Registration fee........................................... $ 21,652.00
NASD filing fee................................................ $ 6,753.00
Nasdaq National Market fee..................................... $ 46,700.00
Printing Expenses.............................................. $150,000.00
Legal fees and expenses........................................ $300,000.00
Accounting Fees and expenses................................... $125,000.00
Blue sky fees and expenses (including legal fees and ex-
penses)....................................................... $ 25,000.00
Transfer agent and registrar fees and expenses................. $ 20,000.00
Miscellaneous.................................................. $104,895.00
-----------
Total...................................................... $800,000.00
-----------
</TABLE>
The Company will bear all expenses shown above.
- --------
* All amounts are estimated, except SEC Registration, NASD and Nasdaq National
Market Fees.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67 of Chapter 156B of the Massachusetts Business Corporation Law,
which is applicable to the Company, provides as follows:
Indemnification of directors, officers, employees and other agents of a
corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by
it to whatever extent shall be specified in or authorized by: (i) the articles
of organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitled to vote
on the election of directors. Except as the articles of organization or by-
laws otherwise require, indemnification of any persons referred to in the
preceding sentence who are not directors of the corporation may be provided by
it to the extent authorized by the directors. Such indemnification may include
payment by the corporation of expenses incurred in defending a civil or
criminal action or proceeding in advance of the final disposition of such
action or proceeding, upon receipt of an undertaking by the person indemnified
to repay such payment if he shall be adjudicated to be not entitled to
indemnification under this Section which undertaking may be accepted without
reference to the financial ability of such person to make repayment. Any such
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization or no longer serves with respect to any such employee
benefit plan.
No indemnification shall be provided for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to
have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation or to the extent that such matter relates to
service with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not limit any
right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the
II-1
<PAGE>
corporation as a director, officer, employee or other agent of another
organization or with respect to any employee benefit plan, against any
liability incurred by him in any such capacity, or arising out of his status
as such, whether or not the corporation would have the power to indemnify him
against such liability.
In addition, pursuant to its Articles of Organization and Bylaws, the
Company shall indemnify its directors and officers against expenses (including
judgments or amounts paid in settlement) incurred in any action, civil or
criminal, to which any such person is a party by reason of any alleged act or
failure to act in his capacity as such, except as to a matter as to which such
director or officer shall have been finally adjudged not to have acted in good
faith in the reasonable belief that his action was in the best interest of the
corporation.
The Underwriting Agreement provides that the Underwriters are obligated,
under certain circumstances, to indemnify directors, officers and controlling
persons of the Company against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the "Act"). Reference is made to
the form of Underwriting Agreement filed as Exhibit 1 hereto.
The Company maintains directors and officers liability insurance for the
benefit of its directors and certain of its officers and has entered into
indemnification agreements with its directors and certain of its officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, Suburban has issued the following securities,
none of which have been registered under the Securities Act of 1933, as
amended (the "Act"):
(a) On July 3, 1995, in connection with the recapitalization of the
Company, the Company sold: (i) an aggregate of 4,340,000 shares (after
giving effect to the 100 for 1 Common Stock split effected July 3, 1995,
the 50 for 1 Common Stock split effected April 10, 1996 and the 3.1 for 1
Common Stock split effected June 21, 1996) to Summit Ventures, Summit
Investors, Summit Debt Fund and BSC for an aggregate purchase price of
$100,000; and (ii) an aggregate of 66,500 shares of its Redeemable
Preferred Stock to Summit Partners for an aggregate consideration of
$6,650,000. In connection with the July 3, 1995 recapitalization, the
Company also issued $9,250,000 in principal amount of Summit Notes and the
Management Notes. Finally, in connection with the July 3, 1995
recapitalization, the Company granted to certain officers of the Company
options to purchase 620,000 (post-splits) shares of its Common Stock.
(b) In connection with the acquisition of St. Louis Ostomy the Company
issued the St. Louis Note.
(c) On October 12, 1995 and April 31, 1996, the Company issued an
aggregate of 23,250 shares (post-splits) of Common Stock upon the exercise
by Mr. Manos of option to purchase such shares, at exercise price of $0.81
per share (post-splits).
(d) On October 31, 1995, the Company granted to various employees options
to purchase an aggregate of 29,450 shares (post-splits) pursuant to the
Company's 1995 Stock Option Plan.
(e) On January 22, 1996, the Company issued the Bank Warrant.
ITEM 16. EXHIBITS
Exhibits:
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement
3.1 Restated Articles of Organization, as amended
3.2 Bylaws
*3.3 Restated Articles of Organization, as amended
*3.4 Amended and Restated Bylaws
*4.1 Specimen stock certificate representing shares of Common Stock
5.1 Form of Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation, as to the legality of the securities being registered
10.1 Stock Purchase and Redemption Agreement, among the Company, Summit,
BSC, the Management Stockholders and Melvin Aronson, dated July 3, 1995
10.2 Subordinated Debenture Purchase Agreement among the Company, Summit
Debt and Summit Investors, dated July 3, 1995
10.3 Shareholders' Agreement among the Company, Summit, BSC, the Management
Stockholders and Melvin Aronson, dated July 3, 1995
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
10.4 Registration Rights Agreement among the Company, Summit, BSC, the
Management Stockholders and Melvin Aronson, dated July 3, 1995
10.5 $6,615,000 12% Subordinated Debenture of the Company issued to Summit
Debt, dated July 3, 1995
10.6 $135,000 12% Subordinated Debenture of the Company issued to Summit
Investors, dated July 3, 1995
10.7 Suburban Ostomy Supply Co., Inc. Stock Option Plan
10.8 Stock Option Agreement with Herbert Grey, dated July 3, 1995
10.9 Stock Option Agreement with Donald Benovitz, dated July 3, 1995
10.10 Stock Option Agreement with Stephen N. Aschettino, dated July 3, 1995
10.11 Stock Option Agreement with John Manos, dated July 3, 1995
10.12 Employment Agreement with Herbert Gray, dated July 3, 1995
10.13 Employment Agreement with Donald Benovitz, dated July 3, 1995
10.14 Employment Agreement with Stephen N. Aschettino, dated July 3, 1995
10.15 Employment Agreement with Patrick Bohan, dated July 3, 1995
10.16 Employment Agreement with John Manos, dated July 3, 1995
10.17 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Melvin Aronson, dated July 3, 1995
10.18 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Herbert P. Gray, dated July 3, 1995
10.19 $375,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Donald Benovitz, dated July 3, 1995
10.20 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Stephen N. Aschettino, dated July 3, 1995
10.21 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Patrick Bohan, dated July 3, 1995
10.22 Credit Agreement between the Company and The First National Bank of
Boston, dated July 3, 1995
10.23 First Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated January 22, 1996
10.24 Second Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated June 14, 1996
10.25 Proposed terms and conditions of Amended Credit Facility from the Bank
10.26 Warrant to purchase shares of Common Stock issued to the Bank, dated
January 22, 1996
10.27 Stock Purchase Agreement relating to the Purchase of St. Louis Ostomy
by the Company, dated January 22, 1996
10.28 Non-Competition Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.29 $1,235,000 10% Subordinated Promissory Note of the Company issued to
Michael J. Quinn, dated January 22, 1996
10.30 Employment Letter Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.31 Stock Purchase Agreement relating to the Purchase of Patient-Care by
the Company, dated June 14, 1996
10.32 Escrow Agreement among the Company and the Stockholders of Patient-
Care, dated June 14, 1996
10.33 Non-Competition Agreement by Nate Spunt for the benefit of the Company
and Patient-Care, dated June 14, 1996
10.34 Employment Agreement between Patient-Care and John Somers, dated June
14, 1996
10.35 UPS Ground Incentive Program Contract Carrier Agreement between the
Company and UPS, dated February 13, 1995
10.36 Letter Agreement between the Company and UPS, dated August 23, 1995
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <S>
10.37 UPS Consignee Billing Contract Courier Agreement between the Company
and UPS, dated September 23, 1995
10.38 Lease of New Englander Industrial Park between the Company and GBA
Realty Trust, dated August 1991
10.39 Lease and Agreement between the Company and GBA Realty Corp., dated
August 1, 1993
10.40 Lease Agreement between the Company and Suburban Grayson Atlanta
Partnership, dated August 1, 1986
10.41 Lease Agreement between the Company and Christmas Joint Venture,
dated July 1, 1994
10.42 Single Tenant Industrial Lease between the Company and Watson Land
Company, dated August 18, 1994
10.43 Agreement between the Company and Hollister Incorporated, as amended,
dated March 16, 1984
11.1 Earnings Per Share Computations
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation
(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule
</TABLE>
- --------
* Filed with this Amendment No. 3.
FINANCIAL STATEMENT SCHEDULES.
The following financial statement schedule of the Company is furnished at
the indicated page:
Report of Independent Public Accountants (Page S-1)
Schedule II--Valuation and Qualifying Accounts (Page S-2)
All other schedules not listed are omitted because of the absence of
conditions under which they are required.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned registrant hereby undertakes that: (1) For purposes of
determining any liability under the Securities Act, the information omitted
from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of the time
it was declared effective; and (2) For the purpose of determining any
liability under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to provisions described in Item 14 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-1 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT ON FORM S-1 TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN BOSTON, MASSACHUSETTS, ON OCTOBER 9,
1996.
Suburban Ostomy Supply Co., Inc.
By: /s/ Herbert P. Gray
----------------------------------
HERBERT P. GRAY CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Herbert P. Gray Chairman of the October 9, 1996
- ------------------------------------ Board of Directors
HERBERT P. GRAY and Chief
Executive Officer
/s/ Donald H. Benovitz Director, President October 9, 1996
- ------------------------------------ and Chief
DONALD H. BENOVITZ Operating Officer
/s/ Stephen N. Aschettino Vice President, October 9, 1996
- ------------------------------------ Treasurer and
STEPHEN N. ASCHETTINO Clerk (principal
accounting
officer)
/s/ Martin J. Mannion* Director October 9, 1996
- ------------------------------------
MARTIN J. MANNION
/s/ Joseph F. Trustey* Director October 9, 1996
- ------------------------------------
JOSEPH F. TRUSTEY
</TABLE>
* under power of attorney
II-5
<PAGE>
EXHIBIT INDEX
Exhibits:
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement
3.1 Restated Articles of Organization, as amended
3.2 Bylaws
*3.3 Restated Articles of Organization, as amended
*3.4 Amended and Restated Bylaws
*4.1 Specimen stock certificate representing shares of Common Stock
5.1 Form of Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation, as to the legality of the securities being registered
10.1 Stock Purchase and Redemption Agreement, among the Company, Summit,
BSC, the Management Stockholders and Melvin Aronson, dated July 3,
1995
10.2 Subordinated Debenture Purchase Agreement among the Company, Summit
Debt and Summit Investors, dated July 3, 1995
10.3 Shareholders' Agreement among the Company, Summit, BSC, the Management
Stockholders and Melvin Aronson, dated July 3, 1995
10.4 Registration Rights Agreement among the Company, Summit, BSC, the
Management Stockholders and Melvin Aronson, dated July 3, 1995
10.5 $6,615,000 12% Subordinated Debenture of the Company issued to Summit
Debt, dated July 3, 1995
10.6 $135,000 12% Subordinated Debenture of the Company issued to Summit
Investors, dated July 3, 1995
10.7 Suburban Ostomy Supply Co., Inc. Stock Option Plan
10.8 Stock Option Agreement with Herbert Grey, dated July 3, 1995
10.9 Stock Option Agreement with Donald Benovitz, dated July 3, 1995
10.10 Stock Option Agreement with Stephen N. Aschettino, dated July 3, 1995
10.11 Stock Option Agreement with John Manos, dated July 3, 1995
10.12 Employment Agreement with Herbert Gray, dated July 3, 1995
10.13 Employment Agreement with Donald Benovitz, dated July 3, 1995
10.14 Employment Agreement with Stephen N. Aschettino, dated July 3, 1995
10.15 Employment Agreement with Patrick Bohan, dated July 3, 1995
10.16 Employment Agreement with John Manos, dated July 3, 1995
10.17 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Melvin Aronson, dated July 3, 1995
10.18 $1,000,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Herbert P. Gray, dated July 3, 1995
10.19 $375,000 12% Non-Negotiable Subordinated Promissory Note of the
Company issued to Donald Benovitz, dated July 3, 1995
10.20 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Stephen N. Aschettino, dated July 3, 1995
10.21 $62,500 12% Non-Negotiable Subordinated Promissory Note of the Company
issued to Patrick Bohan, dated July 3, 1995
10.22 Credit Agreement between the Company and The First National Bank of
Boston, dated July 3, 1995
10.23 First Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated January 22, 1996
10.24 Second Amendment to Credit Agreement among the Company, the Bank and
St. Louis Ostomy, dated June 14, 1996
10.25 Proposed terms and conditions of Amended Credit Facility from the Bank
10.26 Warrant to purchase shares of Common Stock issued to the Bank, dated
January 22, 1996
</TABLE>
<PAGE>
<TABLE>
<C> <S>
10.27 Stock Purchase Agreement relating to the Purchase of St. Louis Ostomy
by the Company, dated January 22, 1996
10.28 Non-Competition Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.29 $1,235,000 10% Subordinated Promissory Note of the Company issued to
Michael J. Quinn, dated January 22, 1996
10.30 Employment Letter Agreement between the Company and Michael J. Quinn,
dated January 22, 1996
10.31 Stock Purchase Agreement relating to the Purchase of Patient-Care by
the Company, dated June 14, 1996
10.32 Escrow Agreement among the Company and the Stockholders of Patient-
Care, dated June 14, 1996
10.33 Non-Competition Agreement by Nate Spunt for the benefit of the
Company and Patient-Care, dated June 14, 1996
10.34 Employment Agreement between Patient-Care and John Somers, dated June
14, 1996
10.35 UPS Ground Incentive Program Contract Carrier Agreement between the
Company and UPS, dated February 13, 1995
10.36 Letter Agreement between the Company and UPS, dated August 23, 1995
10.37 UPS Consignee Billing Contract Courier Agreement between the Company
and UPS, dated September 23, 1995
10.38 Lease of New Englander Industrial Park between the Company and GBA
Realty Trust, dated August 1991
10.39 Lease and Agreement between the Company and GBA Realty Corp., dated
August 1, 1993
10.40 Lease Agreement between the Company and Suburban Grayson Atlanta
Partnership, dated August 1, 1986
10.41 Lease Agreement between the Company and Christmas Joint Venture,
dated July 1, 1994
10.42 Single Tenant Industrial Lease between the Company and Watson Land
Company, dated August 18, 1994
10.43 Agreement between the Company and Holister Incorporated, as amended,
dated March 16, 1984
11.1 Earnings Per Share Computations
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation
(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
27.1 Financial Data Schedule
</TABLE>
- --------
* Filed with this Amendment No. 3.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth FEDERAL IDENTIFICATION
ONE ASHBURTON PLACE, BOSTON, MASS: 02108 NO. 04-2675674
----------
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, Donald H. Benovitz ,President and
Stephen N. Aschettino ,Clerk of
Suburban Ostomy Supply Co., Inc.
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 75 October Hill Road, Holliston, MA 01746
----------------------------------------------------------------------
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted by written consent __________, 199__, by
vote of
<TABLE>
<S> <C> <C>
20,000 shares of Common out of 20,000 shares outstanding
- ----------------------- ---------------------------- --------------------------
(Class of Stock)
_______________________shares of----------------------------out of___________________________shares outstanding, and
(Class of Stock)
_______________________shares of--------------------------- out of___________________________outstanding.
(Class of Stock)
</TABLE>
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:
Suburban Ostomy Supply Co., Inc.
2. THE PURPOSES FOR WHICH THE CORPORATION IS FORMED ARE AS FOLLOWS:
See continuation sheets attached.
3. THE TOTAL NUMBER OF SHARES AND THE PAR VALUE, IF ANY, OF EACH CLASS OF
STOCK WHICH THE CORPORATION IS AUTHORIZED TO ISSUE IS AS FOLLOWS:
<TABLE>
<CAPTION>
WITHOUT PAR VALUE WITH PAR VALUE
----------------- ----------------
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
- ---------------- ---------------- ---------------- ---------
<S> <C> <C> <C>
PREFERRED None 66,500 $.01
COMMON 200,000 None
</TABLE>
*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 attached.
*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 DEFINING, OR REGULATING THE POWERS OF THE
CORPORATION, OR OF ITS DIRECTORS OR STOCKHOLDERS, OR OF ANY CLASS OF
STOCKHOLDERS:
See continuation sheets attached.
* IF THERE ARE NO SUCH PROVISIONS, STATE "NONE".
<PAGE>
Articles of Organization
of
SUBURBAN OSTOMY SUPPLY CO., INC.
Article II continued:
The purposes of the Corporation shall be:
To engage in the business of selling ostomy and other health care products
at wholesale and at retail within and without the continental United States; to
make and enter into all kinds of contracts, agreements and obligations by or
with any persons, firms, associations and corporations in furtherance of such
activities, and, generally, to perform any and all acts connected therewith, or
incidental thereto, and all acts proper or necessary for the purposes of this
business.
To carry on any business or other activity which may lawfully be carried on
by a corporation organized under Chapter 156B of the Massachusetts General Laws
(the "Business Corporation Law"), whether or not related to those referred to in
the foregoing paragraph, whether or not related or similar to the activities
described in the preceding paragraph.
To carry on any business, operation or activity through a wholly owned or
partly owned subsidiary.
To carry on any business, operation or activity referred to in the
foregoing paragraphs to the same extent as might an individual, whether as
principal, agent, contractor or otherwise, and either alone or as a partner,
trustee, participant, member or stockholder of or in any form of partnership,
joint venture, corporation, association, trust, limited liability company or
other form of entity or with any individual, and, without limiting the
generality of the foregoing, to be a limited and/or general partner of any
partnership organized to carry on any business or activity of the type described
herein.
To have as additional purposes all powers granted and conferred by the laws
of The Commonwealth of Massachusetts upon business corporations organized under
the Business Corporation Law.
In these provisions, the enumeration of specific purposes or powers shall
not be construed to limit other statements of purposes or powers which this
Corporation may otherwise have under applicable law, all of the same being
separate and cumulative, and all of the same may be carried on, promoted and
pursued, transacted or exercised in any place in the world whatsoever.
Common Stock
- ------------
The holders of the Common Stock shall have the exclusive right to vote for
the election of directors and on all other matters requiring action by the
stockholders or submitted to the stockholders for action, except as may
otherwise be required by these Articles of Organization or law, and each share
of the Common Stock shall entitle the holder thereof to one vote.
<PAGE>
The holders of the Common Stock shall be entitled to receive, to the extent
permitted by law, such dividends as may from time to time be declared by the
directors, subject to the rights of holders of shares of any class or series
having preferential rights to receive distributions or dividends.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, the holders of the Common Stock shall be entitled to receive
the net assets of the Corporation, after the Corporation shall have satisfied or
made provision for its debts and obligations and for payment to the holders of
shares of any class or series having preferential rights to receive
distributions of the net assets of the Corporation.
Preferred Stock
- ---------------
The preferences, voting powers, qualifications and special or relative
rights or privileges of the Preferred Stock are as follows:
SERIES A REDEEMABLE PREFERRED STOCK
-----------------------------------
1. Designation and Amount. The shares of such series of Preferred Stock
----------------------
shall be designated as "Series A Redeemable Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting such series shall be
66,500.
2. Dividends, Etc.
---------------
(a) In General. No dividends shall be payable on the Series A
----------
Preferred Stock.
(b) Priority. So long as any shares of Series A Preferred Stock
--------
remain outstanding, neither the Company nor any Subsidiary (which shall mean any
corporation, association or other business entity which the Company directly or
indirectly owns at the time more than fifty percent (50%) of the outstanding
voting securities or equity interests) will redeem, purchase or otherwise
acquire any other equity security of the Company now or hereafter outstanding,
including, without limitation, the Common Stock (collectively, the "Junior
Securities"), nor will the Company declare or pay any dividend (including
accrued dividends) other than dividends payable in shares of capital stock or
make any distribution upon any Junior Securities, except for any redemption in
connection with the issuance of the shares of Series A Preferred Stock, without
the consent of the holders of a majority of the shares of Series A Redeemable
Preferred Stock, then outstanding.
3. Liquidation.
-----------
(a) Treatment at Liquidation, Dissolution and Winding Up. In the
----------------------------------------------------
event of any liquidation, dissolution or winding-up of the Company, whether
voluntarily or involuntarily, before any distribution or payment may be made
with respect to any Junior Securities, holders of each share of Series A
Preferred Stock shall be entitled to be paid out of the assets of the Company
available for distribution to holders of the Company's capital stock of all
classes, whether such assets are capital,
-2-
<PAGE>
surplus, or capital earnings, an amount in cash equal to $ 1 00 per share of
Series A Preferred Stock (which amount shall be subject to equitable adjustment
whenever there shall occur a stock split, combination, reclassification or other
similar event involving the Series A Preferred Stock) plus an amount equal to a
ten percent (10%) cumulative annual return (computed on the basis of the actual
days elapsed in a year of 360 days) on such $100, compounded annually, since the
date of issuance up to and including the date full payment shall be tendered to
the holders of the Series A Preferred Stock with respect to such liquidation,
dissolution, or winding up (the "Series A Liquidation Amount"). The date on
which the Company initially issues any shares of Series A Preferred Stock will
be deemed to be its "date of issuance" regardless of the number of times
transfer of such share of Series A Preferred Stock is made on the stock records
of the Company, and regardless of the number of certificates which may be issued
to evidence such share of Series A Preferred Stock.
If upon any such liquidation, dissolution or winding up of the Company, the
assets of the Company to be distributed among the holders of the Series A
Preferred Stock are insufficient to permit payment to such holders of the
aggregate amount which they are entitled to be paid, then the entire assets of
the Company to be distributed to such holders will be distributed ratably among
such holders in proportion to the number of shares of Series A Preferred Stock
owned by each holder.
After the payment of the Series A Liquidation Amount shall have been made
in full to the holders of the Series A Preferred Stock or funds necessary for
such payment shall have been set aside by the Company in trust for the account
of holders of the Series A Preferred Stock so as to be available for such
payments, the holders of the Series A Preferred Stock shall be entitled to no
further participation in the distribution of the assets of the Company, and the
remaining assets of the Company legally available for distribution to its
stockholders shall be distributed among the holders of other classes of
securities of the Company in accordance with their respective terms.
(b) Treatment of Reorganizations. Any merger or consolidation of the
----------------------------
Company with or into another corporation more than fifty percent (50%) of the
common voting securities of which are owned by persons or entities who are not
stockholders (or affiliates or stockholders or partners of stockholders) of the
Company immediately following the closing of the transactions under the Stock
Purchase and Redemption Agreement among the Company and the other parties named
therein dated as of July 3, 1995 ("New Investors"), or the sale of all or
substantially all of the Company's properties and assets to any person or group
of persons at least fifty percent (50%) in interest of which are New Investors
or any transaction or series of related transactions in which more than fifty
percent (50%) of the outstanding common voting securities of the Company is sold
or assigned to New Investors (ally of which events is herein referred to as a
"Reorganization"), shall be regarded as a liquidation, dissolution or winding up
of the affairs of the Company within the meaning of this Section 3 unless the
holders of at least a majority of the then outstanding shares of Series A
Preferred Stock elect to have such events not deemed to be a liquidation,
dissolution or winding up of the Company by giving written notice thereof to the
Company at least IO days before the effective date of such event.
-3-
<PAGE>
4. Voting Power. Except as otherwise expressly provided in Section 6
------------
hereof, or as required by law, the holders of the Series A Preferred Stock shall
not be entitled to vote on any corporate matters.
5. Redemption.
----------
(a) Optional Redemption. The Company may at any time redeem all
-------------------
or any portion of the then outstanding Series A Preferred Stock at a redemption
price (the "Redemption Price") for each share of Series A Preferred Stock
redeemed pursuant to this Section 5 (a) equal to the Series A Liquidation
Amount, such amount to be calculated and paid through the date payment is
actually made to the holders of the Series A Preferred Stock with respect to
such redemption. The Company shall give the holders of the Series A Preferred
Stock notice (the "Optional Redemption Notice") at least thirty (30) days prior
to the date fixed for redemption pursuant to this Section 5(a) of its election
to redeem the Series A Preferred Stock. Such election shall be irrevocable on
the part of the Company. The Optional Redemption Price shall be paid on the date
fixed for redemption and specified in the Redemption Notice upon surrender of
certificates as provided in Section 5(d) below.
(b) Mandatory Redemption. In the event the Company does not elect
--------------------
to redeem the Series A Preferred Stock as provided in Section 5(a), the Company-
V shall redeem Pig rata from all holders of the Series A Preferred Stock on June
30 of each of 2000, 2001 and 2002 one-third (1/3) of the shares of Series A
Preferred Stock outstanding on June 30, 2000, or such lesser amount as may be
outstanding on the date of such redemption. In the event shares of Series A
Preferred Stock scheduled for redemption are not redeemed because of a
prohibition under applicable law, such shares shall be redeemed as soon as such
prohibition no longer exists. The number of shares to be redeemed shall be
cumulative, so that any shares which were subject to redemption in a prior year
or years but were not so redeemed shall continue to be subject to redemption in
addition to the shares otherwise redeemable in the current year.
In addition, if a Liquidity Event (as herein defined) occurs, the Company
shall redeem all shares of Series A Preferred Stock outstanding. The term
Liquidity Event shall mean any one or more of the following: (1) a
Reorganization, (11) the liquidation, dissolution or winding up of the Company
or (111) the sale of securities by the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended; provided,
however, that in the event that the proceeds from the sale of securities by the
Company pursuant to such a registration statement arc insufficient (after giving
effect to required repayments of outstanding debt and the reservation of funds
required for specific corporate needs and projects) to fund redemption in full
of the Preferred Stock then outstanding, then such proceeds shall be applied to
redeem such of the Series A Preferred Stock as can be redeemed at the Redemption
Price (such redemption to be applied to the holders of the Series A Preferred
Stock pro rata, in proportion to the shares owned by each), and the balance of
the Series A Preferred Stock shall be converted into a Series B Preferred Stock
which shall have a dividend rate of not less than IO% per annum, and shall
contain such other rights, terms and privileges as then prevail in the
marketplace with respect to preferred stock investments made in public companies
by unaffiliated third parties. If a Liquidity Event occurs, the Company shall
be required to redeem the
-4-
<PAGE>
shares of Series A Preferred Stock concurrently Nvith the closing of the event
constituting the Liquidity Event.
The redemption price of each share of Series A Preferred Stock redeemed
pursuant to this Section 5(b) shall be equal to the Redemption Price provided
for in Section 5(a).
(c) Redemption Notice. The Company shall mail notice (the
-----------------
"Redemption Notice") of any redemption to be effected pursuant to Section 5(b),
not later than 30 days before the date fixed for each redemption pursuant to
Section 5(b) (each of the dates fixed for redemption and the extended redemption
date is hereinafter referred to as a "Redemption Date"), provided, however, that
the Company's failure to give such Redemption Notice shall in no way affect its
obligation to redeem the shares of Preferred Stock or the obligation of the
holders to redeem their shares of Preferred Stock as provided in Section 5(b)
hereof The Redemption Notice shall contain the following information:
(i) the number of shares of Series A Preferred Stock held by
the holder and the total number of shares of Series A Preferred Stock held by
all holders subject to redemption as of such Redemption Date, and
(ii) the Redemption Date and the Redemption Price.
(d) Surrender of Certificates. Each holder of shares of Series A
-------------------------
Preferred Stock to be redeemed under this Section 5 shall surrender the
certificate or certificates representing such shares to the Company at the place
designated in the Redemption Notice, and thereupon the Redemption Price for such
shares as set forth in this Section 5 shall be paid to the order of the person
whose name appears on such certificate or certificates. Irrespective of whether
the certificates therefor shall have been surrendered, all shares of Series A
Preferred Stock which are the subject of a Redemption Notice shall be deemed to
have been redeemed and shall be cancelled effective as of the Redemption Date,
unless the Company shall default in the payment of the applicable Redemption
Price.
6. Restrictions and Limitations.
----------------------------
(a) Corporate Action. Except as exprcssly provided herein or as
----------------
required by law, so long as any shares of Series A Preferred Stock remain
outstanding. the Company shall not, and shall not permit any Subsidiary to,
without the approval by vote or written consent by the holders of at least a
majority of the then outstanding shares of Series A Preferred Stock, voting as a
separate class:
(i) authorize or issue, or obligate itself to authorize or
issue, additional shares of Series A Preferred Stock; or
(ii) authorize or issue, or obligate itself to authorize or
issue, any equity security senior to or on parity with the Series A Preferred
Stock as to liquidation preferences, redemption rights or dividend rights.
-5-
<PAGE>
(b) Amendments to Charter. The Company shall not amend its Articles
---------------------
of Organization without the approval, by vote or written consent, by the holders
of at least a majority of the then outstanding shares of Series A Preferred
Stock, if such amendment would adversely amend any of the rights, preferences,
privileges of or limitations provided for herein for the benefit of any shares
of Series A Preferred Stock. Without limiting the generality of the preceding
sentence, the Company will not amend its Articles of Organization without the
approval by the holders of at least a majority of the then outstanding shares of
Series A Preferred Stock if such amendment would:
(i) change the relative seniority rights of the holders of
Series A Preferred Stock as to the payment of dividends in relation to the
holders of any other capital stock of the Company, or create any other class or
series of capital stock entitled to seniority as to the payment of dividends
relation to the holders of Series A Preferred Stock;
(ii) reduce the amount payable to the holders of Series A
Preferred Stock upon the voluntary or Involuntary liquidation, dissolution or
winding up of the Company, or change the relative seniority of the liquidation
preferences of the holders of Series A Preferred Stock to the rights upon
liquidation of the holders of other capital stock of the Company;
(iii) cancel or modify the redemption rights of the holders of
the Series A Preferred Stock provided for in Section 5 herein; or
(iv) cancel or modify the rights of the holders of the Series
A Preferred Stock provided for in this Section 6.
7. Notices of Record Date. In the event of
----------------------
(a) any taking by the Company 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, distribution, 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, or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company, any merger of the
Company, or any transfer of all or substantially all of the assets of the
Company to any other corporation, or any other entity or person, or
(c) any voluntary or involuntary dissolution, liquidation orxvinding
up of the Company,
then and in each such event the Company shall mail or cause to be mailed to each
holder of Series A Preferred Stock a notice specifying (i) the date on which any
such record is to be taken for the purpose of such distribution or right and a
description of such distribution or right, (ji) the date on which any
-6-
<PAGE>
such reorganization, reclassification, recapitalization, transfer, merger,
dissolution, liquidation or winding up is expected to become effective and (iii)
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, recapitalization, transfer, merger,
dissolution, liquidation orAinding up. Such notice shall be mailed at least ten
(10) business days prior to the date specified in such notice on which such
action is to be taken.
8. No Reissuance of Series A Preferred Stock. No share or shares of
-----------------------------------------
Series A Preferred Stock acquired by the Company by reason of redemption,
purchase or otherwise shall be reissued. and all such shares shall be cancelled,
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 A
Preferred Stock accordingly.
Article VI: Other Lawful Provisions - Continuation Sheets
- ---------------------------------------------------------
The following additional provisions arc hereby established for the
management, conduct and regulation of the business and affairs of the
Corporation, and for creating, limiting, defining and regulating the powers of
the Corporation and of its directors and stockholders:
1. Except as otherwise provided in these Articles of Organization or the
by-laws of the Corporation as from time to time amended, the business and
affairs of the Corporation shall be managed by its board of directors. Without
limiting the foregoing, the board of directors of the Corporation is hereby
specifically authorized from time to time in its discretion to determine the
manner in which the accounts of the Corporation shall be kept, and to detennine
for any purpose and in any manner not inconsistent with other provisions of
these Articles of Organization, the amount of the gross assets, liabilities, net
assets, net earnings, profits and surplus of the Corporation as the same exist
or shall have existed at any time or for any period or periods, and to create,
increase, abolish or reduce any reserve or reserves for accrued, accruing or
contingent liabilities or expenses, including taxes and other charges, and to
determine what amounts, if any, shall be declared as dividends. Unless the
board of directors otherwise specifies, the excess of the consideration received
for any share of its capital stock with par value issued by it over such par
value shall be paid-in surplus. The board of directors may allocate to capital
stock less than all of the consideration received for any share of its capital
stock without par value issued by it, in which case the balance of such
consideration shall be paid-mi surplus. All surplus shall be available for any
corporate purpose, including the payment of dividends.
2. The board of directors shall have full power and authority to
determine the terms and manner of issue, including, but not limited to, the
consideration therefore and to issue or cause the issue of all shares of capital
stock of the Corporation now or from time to time hereafter authorized.
-7-
<PAGE>
3. The board of directors is authorized from time to time, in its
discretion, to make, amend or repeal the by-laws, in part or in whole, except
with respect to any provision thereof which by law or the by-laws requires
action by the stockholders.
4. The Corporation may carry on any operation or activity through a
wholly or partly owned subsidiary and may be a partner in any business
enterprise which it would have the power to conduct by itself.
5. Meetings of stockholders may be held outside The Commonwealth of
Massachusetts. The books of the Corporation may be kept (subject to any
provision contained in the Business Corporation Law) outside The Commonwealth of
Massachusetts at such place or places as may be designated from time to time by
the board of directors or in the by-laws of this Corporation. Election of
directors need not be by ballot unless so requested by any stockholder entitled
to vote thereon.
6. Each director or officer of the Corporation shall, in the performance
of his or her duties, be fully protected in relying in good faith upon the books
of account of the Corporation, reports made to the Corporation by any of its
officers or employees or by counsel, accountants, appraisers or other experts or
consultants selected with reasonable care by the directors or officers of the
Corporation or upon other records of the Corporation. Without limiting the
generality of the foregoing, no director or officer of the Corporation shall be
liable to any person on account of any action undertaken by him or her as such
director or officer in reliance in good faith upon information, opinions,
reports or records, including financial statements, books of account and other
financial records, in each case presented by or prepared by or under the
supervision of (i) one or more officers or employees of the Corporation whom the
director or officer reasonably believes to be reliable and competent in the
matters presented, or (ii) legal counsel, public accountants or other persons as
to matters which the director or officer reasonably believes to be within such
person's professional or expert competence, or (iii) in the case of a director,
a duly constituted committee of the board of directors upon which he or she does
not serve, as to matters within its delegated authority, which committee the
director reasonably believes to merit confidence.
7. No director of this Corporation shall be personally liable to the
Corporation or its Stockholders for monetary damages for any breach of fiduciary
duty as a director; provided, however, that to the extent provided by applicable
law this provision shall not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
61 or Section 62 of the Business Corporation Law, or (iv) for any transaction in
connection with which such director derived an improper personal benefit. No
amendment or repeal of this paragraph shall apply to or have any effect on the
liability of alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
8. Each officer or director or former officer or director of the
Corporation, and each person who shall, at the Corporation's request, have
served as an officer or director of another Corporation or
-8-
<PAGE>
as a trustee, partner or officer of a trust, partnership, limited liability
company or association, and each person who shall, at the Corporation's request,
have served in any capacity with respect to any employee benefit plan, whether
or not then in office or then serving with respect to such employee benefit
plan, and the heirs, executors, administrators, and other personal
representatives of each of them shall, to the maximum extent permitted from time
to time under the law of The Commonwealth of Massachusetts, be indemnified by
the Corporation against all liabilities, costs and expenses, including amounts
paid in satisfaction of judgments, in compromise and/or as fines or penalties
and the fees and disbursements of counsel, imposed or reasonably incurred by him
dr them in connection with or arising out of any action, suit, or proceeding,
civil or criminal, in which he, she or they may be involved, or incurred in
anticipation of any action, suit or proceeding, by reason of his or her being or
having been such officer, trustee, partner or director or by reason of any
alleged act or omission by him or her in such capacity or in serving with
respect to any employee benefit plan. Such indemnification may include payment
by the Corporation of expenses incurred in defending any such action, suit, or
proceeding in advance of the final disposition thereof, upon receipt of an
undertaking by the person indemnified to repay such payment if he or she shall
be adjudicated not to be entitled to indemnification under this Section, which
undertaking may be accepted by the Corporation without reference to the
financial ability of such person to make repayment. The foregoing rights of
indemnification shall not be exclusive of other rights to which any such
director, officer, trustee, partner or person serving with respect to any
employee benefit plan may be entitled as a matter of law, and any repeal or
modification of any of the foregoing provisions of this Section shall not
adversely affect any right or protection of such persons with respect to any
acts or omissions that occurred prior to such repeal or modification. These
indemnity provisions shall be separable, and if any portion thereof shall be
finally adjudged to be invalid, such invalidity shall not affect any other
portion which can be given effect.
Notwithstanding the foregoing, no indemnification shall be provided with
respect to any matter disposed of by settlement, consent decree or other
negotiated resolution unless:
a. such indemnification shall have been approved by holders of the shares
of the Corporation's capital stock then entitled to vote for
directors, voting such shares as a single class, by a majority of the
votcs cast on the question exclusive of any shares owned bv an
interested director or officer; or
b. such indemnification and such settlement, decree or resolution shall
have been approved as being in the best interest of the Corporation or
organization or plan or participants served, as the case may be, after
notice that it involves such indemnification, by a majority of the
disinterested directors (or, if applicable, the sole disinterested
director) then in office (whether or not constituting a quorurn); or
c. if no directors are disinterested, a written opinion, reasonably
satisfactory to the Corporation, of independent legal counsel selected
by the Corporation shall have been furnished to the Corporation that
(i) such indemnification and such settlement, decree or resolution are
in the best interest of the Corporation or organization or plan or
-9-
<PAGE>
participants served, as the case may be, and (ii) if adjudicated, such
indemnification would not be found to have been prohibited by law.
For purposes of this Section, an "interested" director or officer is one against
whom in such capacity the proceeding in question or another proceeding on the
same or similar grounds is then pendi ing or threatened, and a "disinterested
director" is any director who is not an interested director.
9. The Corporation shall not, however, indemnify any such person, or his
or her heirs, executors, administrators, or other personal representatives, with
respect to any matter as to which he or she shall be finally adjudged in any
such action, suit, or proceeding not to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the
Corporation, or to the extent that such matter relates to service with respect
to an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan.
10. The board of directors may purchase and maintain insurance on behalf
of any person who is or was a director, officer, trustee, partner, employee or
other agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee, partner, employee or other agent of
another Corporation, association, trust, limited liability company or
partnership against any liability incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the Corporation would
have the power to indeninify him or her against such liability.
11. a. The Corporation may enter into contracts and transact business
with one or more of its directors, officers, or stockholders, or in which any of
them is in any other way interested, or with any Corporation, association,
trust, firm, partnership, limited liability company, or other concern in which
ally one or more of its directors, officers or stockholders are directors,
officers, stockholders, trustees, shareholders, beneficiaries, partners or
otherwise interested; and in the absence of fraud no such contract or
transaction shall be invalidated or in any way affected by the fact that such
directors, officers or stockholders of the Corporation have or may have
interests which are or might be adverse to the interests of the Corporation,
even though the vote or action of the directors, officers, or stockholders
having such adverse interests may have been necessary to obligate the
Corporation upon such contract or transaction, if:
i. the material facts as to such person's or
persons'relationship or interest and as to the contract or
transaction arc disclosed or are known to the board of
directors or the committee thereof which authorizes the
contract or transaction, and the board or committee
authorizes, approves or ratifies the contract or transaction
by the affirmative vote of a majority of the disinterested
directors (or, if applicable, the sole disinterested
director) then in office (whether or not constituting a
quorum); or
ii. the material facts as to said person's or persons'
relationship or interest as to the contract or transaction
are disclosed or are known to the stockholders (whether or
not so disinterested) of the Corporation then
-10-
<PAGE>
entitled to vote for directors, and such holders
specifically authorize, approve or ratify the contract or
transaction by a majority of the votes cast on the question
stock, voting such shares as a single class; or
iii. the contract or transaction is fair to the Corporation as of
the time it is authorized, approved or ratified by the board
of directors, a committee thereof, or the stockholders.
b. The directors shall have the power to fix from time to time their
own compensation.
c. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of the committee
which authorizes the contract or transaction. No director or officer shall be
disqualified from holding office as a director or officer of the Corporation by
reason of any such adverse interest. In the absence of fraud, no director,
officer or stockholder having such adverse interest shall be liable to the
Corporation or to any stockholder or creditor thereof, or to any other person,
for any loss incurred by it under or by reason of such contract or transaction,
nor shall any such director, officer or stockholder be accountable for any gains
or profits realized thereon.
d. Any contract or transaction entered into by the Corporation or
act of the board of directors on behalf of this Corporation which shall be
authorized, approved or ratified by the holders of a majority of the outstanding
shares of this Corporation's conmon stock at any special meeting duly called for
that purpose, or at any annual meeting, at which a quorum is present or
represented, or by their consent in writing, shall be as valid and binding as
though authorized, approved or ratified by every stockholder of this
Corporation.
12. Except as otherwise provided by law, no stockholder shall have any,
right to examine any property or any books, accounts or other writings of the
Corporation if there is reasonable ground for belief that such examination will
for any reason be adverse to the interests of the Corporation, and a vote of the
directors refusing pennission to make such examination and setting forth that in
the opinion of the directors such examination would be adverse to the interests
of the Corporation shall be prima facie evidence that such examination would be
adverse to the interests of the Corporation. Every such examination shall be
subject to such reasonable regulations as the directors may establish in regard
thereto.
13. The purchase or other acquisition or retention by the Corporation of
shares of its own capital stock shall not be deemed a reduction of its capital
stock. Upon any reduction of capital or capital stock, no stockholder shall
have any right to demand any distribution from the Corporation, except as and to
the extent that the stockholders shall have provided at the time of authorizing
such reduction.
-11-
<PAGE>
*We further certify that the foregoing restated articles of organization
effect no amendments to the articles of organization of the corporation as
heretofore amended, except amendments to the following articles
2, 3, 4, 6.
- ----------
(*If there are no such amendments, state "None".)
Briefly describe amendments in space below:
Article 2. Article 2 has been amended to include additional purposes of
---------
the Corporation.
Article 3. Article 3 has been amended to add a new class of preferred
---------
stock.
Article 4. Article 4 has been added to set forth the preferences,
---------
voting powers, qualifications and special or relative rights
of each class and series of authorized stock.
Article 5. Article 6 has been amended to modify certain general
---------
provisions regarding the management, conduct and regulation
of the business and affairs of the Corporation, including,
without limitation, the provisions regarding indemnification
of directors and officers and limitations on the personal
liability of the directors.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names this 30th day of June in the year 1995.
Donald H. Benovitz ______________________________ President
Stephen N. Aschettino ______________________________ Clerk
-12-
<PAGE>
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 $600 having
been paid, said articles are deemed to
have been filed with me this 30th day of
June, 1995.
______________________________
William Francis Galvin
Secretary of the Commonwealth
TO BE FILED IN BY CORPORATION
PHOTO COPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT
TO:
Susan Forest Barrett
SULLIVAN & WORCESTER
One Post Office Square
Boston, MA 02109
Telephone:(617) 338-2800
-13-
<PAGE>
FEDERAL IDENTIFICATION
NO. 04-267564
-------------------
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 Donald Benovitz , *President
---------------------------------------------------------
and Stephen Aschettino , *Clerk
---------------------------------------------------------
of Suburban Ostorny Supply Co, Inc.
------------------------------------------------------------------------
(Exact name of corporation)
located at 75 October Hill Road, Holliston MA 01746
----------------------------------------------------------------
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles number:
3
- --------------------------------------------------------------------------
(Number those articles 1,2,3,4,5 and/or 6 being amended)
of the Articles of Organization were duly adopted by written consent, dated
March 21, 1996, by vote of:
40,000 shares of Common Stock of 40,000 shares outstanding,
- ----------- ---------------- --------------
(type class & series, if any)
66,500 shares of Common Stock of 66,500 shares outstanding, and
- ----------- ---------------- ---------------
(type, class & series, if any)
____________shares of __________________of_______________shares outstanding, and
(type, class & series, if any)
/1/** being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
* 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, Chapter 71.
Note: If the space provided under any article 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 with a left margin of at least 1 inch. Additions to more than
one article may be made on a single sheet so long as each article requiring each
addition is clearly indicated.
<PAGE>
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:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common: 200,000 Common: None
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: None Preferred 66,500 $.01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
Change the total authorized to:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common: 10,000,000 Common: None
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred: None Preferred 66,500 $.01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General laws, Chapter 156B, Section 6
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 26th day of March , 1996,
------ -------- --
Donald Benovitz , *President/,
- ------------------------------------------------------------
Stephen Aschettino , *Clerk
- ------------------------------------------------------------
* Delete the inapplicable words.
<PAGE>
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 $9,800 having been paid,
said articles are deemed to have been filed with me this
10th day of April, 1996
Effective date:_________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Joseph Listengart, Esq.
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, MA 02110
Tel: (617)951-6600
<PAGE>
FEDERAL IDENTIFICATION
NO. 04-2675674
-------------------
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, Donald H. Benovitz
----------------------------------------------------------, *President,
and Stephen N. Aschettino
----------------------------------------------------------, *Clerk,
of Suburban Ostomy Supply Co.,Inc.,
-----------------------------------------------------------------------
(Exact name of corporation)
located at 75 October Hill Road, Holliston, MA 01746,
----------------------------------------------------------------
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles number:
3,4, 6
- -------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted by written consent, dated
October ___, 1996, by vote of:
_____________________shares of___________of_________________ shares outstanding,
(type, class & series, if any)
_____________________shares of___________of_________________ shares outstanding,
(type, class & series, if any)
and
_____________________shares of___________of_________________ shares outstanding,
(type, class & series, if any)
and
/1/**being at least two-thirds of each type, class or series outstanding and
entitled to vote thereon and of each type, class or series of stock whose rights
are adversely affected thereby:
See Exhibit A attached hereto for amended Articles IV and VI.
*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, Chapter 71.
Note: If the space provided under any article 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 with a left margin of at least 1 inch. Additions to more
than one article may be made on a single sheet so long as each article requiring
each addition is clearly indicated.
<PAGE>
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:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- -------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- -------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common: 10,000,000 Common: None
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
Preferred: None Preferred: Redeemable $.01
Preferred: 66,500
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
</TABLE>
Change the total authorized to:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- -----------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- -----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common: 40,000,000 Common: None
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
Preferred: None Preferred: 1,000,000 $.01
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
</TABLE>
<PAGE>
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
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_______ day of October, 1996,
Donald H. Benovitz /s/ Donald H. Benovitz , *President/,
- -----------------------------------------------------
Stephen N. Aschettino /s/ Stephen N. Aschettino , *Clerk
- -----------------------------------------------------
*Delete the inapplicable words.
<PAGE>
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 October, 1996.
Effective date:
________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Joseph Listengart, Esq.
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, MA 02110
Tel: (617) 951-6600
<PAGE>
EXHIBIT A
---------
IV. DESCRIPTION OF CAPITAL STOCK
----------------------------
A. Authorized Shares. The aggregate number of shares which this
-----------------
Corporation shall have authority to issue is: 40,000,000 shares of common stock
having no par value per share (the "Common Stock") and 1,000,000 shares of
preferred stock having a par value of $.01 per share (the "Series Preferred
Stock").
B. Series Preferred Stock. Shares of Series Preferred Stock may be
----------------------
issued from time to time in one or more series as may from time to time be
determined by the Board of Directors, each of said series to be distinctly
designated. All shares of any one series of the Series Preferred Stock shall be
alike in every particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative. The voting
powers, if any, and the designations, preferences and relative, participating,
optional or other special rights or privileges of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to the
provisions of subparagraph 1 of Paragraph D hereof, there is hereby expressly
vested in the Board of Directors of the Corporation the authority to issue one
or more series of the Series Preferred Stock and to fix in the resolution or
resolutions providing for the issue of such stock adopted by the Board of
Directors of the Corporation the Voting powers, if any, and the designations,
preferences and relative, participating, optional or other special rights or
privileges, and the qualifications, limitations or restrictions of such series,
including, but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of, the
Series Preferred Stock which shall constitute such series. The
designation of a series of preferred stock need not include the words
"preferred" or "preference" and may be designated "special" or other
distinctive term. Unless otherwise provided in the resolution issuing
such series, the number of shares of any series of the Series
Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the Board of Directors
in the manner prescribed by law;
(2) The rate and times at which, and the terms and conditions upon
which, dividends, if any, on the Series Preferred Stock of such series
shall be paid, the extent of the preference or relation, if any, of
such dividends to the dividends payable on any other class or classes,
or series of the same or other classes of stock and whether such
dividends shall be cumulative or non-cumulative and, if cumulative,
the date from which such dividends shall be cumulative;
(3) Whether the series shall be convertible into, or exchangeable for,
at the option of the holders of the Series Preferred Stock of such
series or the Corporation or upon the happening of a specified event,
shares of any other
<PAGE>
class or classes or any other series of the same or any other class or
classes of stock of the Corporation, and the terms and conditions of such
conversion or exchange, including provisions for the adjustment of any such
conversion rate in such events as the Board of Directors shall determine;
(4) Whether or not the Series Preferred Stock of such series shall be
subject to redemption at the option of the Corporation or the holders of
such series or upon the happening of a specified event, and the redemption
price or prices and the time or times at which, and the terms and
conditions upon which, the Series Preferred Stock of such series may be
redeemed;
(5) The rights, if any, of the holders of the Series Preferred Stock of
such series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding-up,
of the Corporation;
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Series Preferred Stock of such series; and
(7) Subject to subparagraph 5 of Paragraph D hereof, whether such series of
the Series Preferred Stock shall have full, limited or no voting powers
including, without limiting the generality of the foregoing, whether such
series shall have the right, voting as a series by itself or together with
other series of the Series Preferred Stock or all series of the Series
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of dividends
on any one or more series of the Series Preferred Stock or under such other
circumstances and on such conditions as the Board of Directors may
determine.
C. Common Stock
------------
(1) After the Corporation has complied with the requirements, if any, fixed
in accordance with the provisions of Paragraph B hereof with respect to (a)
dividends on series of the Series Preferred Stock (in accordance with the
relative preferences among such series), and (b) the setting aside of sums
as sinking funds or redemption or purchase accounts for series of the
Series Preferred Stock (in accordance with the relative preferences among
such series), and subject further to any other conditions which may be
fixed in accordance with the provisions of Paragraph B hereof, then, and
not otherwise, the holders of Common Stock shall be entitled to receive
such dividends (either in cash, stock or otherwise) as may be declared from
time to time by the Board of Directors out of assets of the Corporation
legally available therefor and the holders of the Series Preferred Stock
shall not be entitled to participate in any such dividends.
- 2 -
<PAGE>
(2) After distribution in full of the preferential amount, if any, to be
distributed to the holders of series of the Series Preferred Stock (in
accordance with the relative preferences among such series) in the event of
voluntary or involuntary liquidation, distribution, dissolution or winding-
up, of the Corporation, the holders of the Common Stock shall be entitled
to receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to shareholders,
ratably in proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law, each holder of Common Stock
shall have one vote in respect of each share of Common Stock held by him on
all matters voted upon by the shareholders.
D. Other Provisions.
----------------
(1) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable for stock
of the Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of stock or
securities convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations
or associations (including such holders or others) and upon such terms as
may be deemed advisable by the Board of Directors in the exercise of its
sole discretion.
(2) The relative powers, preferences and rights of each series of the
Series Preferred Stock in relation to the powers, preferences and rights of
each other series of the Series Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in Paragraph B hereof.
The consent, by class or series vote or otherwise, of the holders of such
of the series of the Series Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the Board of
Directors of any other series of the Series Preferred Stock whether or not
the powers, preferences and rights of such other series shall be fixed by
the Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any
- 3 -
<PAGE>
series of the Series Preferred Stock adopted pursuant to Paragraph B
hereof, the conditions, if any, under which the consent of the holders of a
majority (or such greater proportion as shall be fixed therein) of the
outstanding shares of such series shall be require for the issuance of any
or all other series of the Series Preferred Stock.
(3) Subject to the provisions of subparagraph 2 of this Paragraph D, shares
of any series of the series Preferred Stock may be issued from time to time
as the Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(4) Shares of authorized Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on such terms
and for such consideration as shall be fixed by the Board of Directors.
(5) The number of authorized shares of Common Stock and of the Series
Preferred Stock, without a class or series vote, may be increased or
decreased from time to time (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of
the stock of the Corporation entitled to vote thereon.
(6) Notwithstanding any other provisions of these Articles of
Organization or the by-laws of the Corporation or the fact that a lesser
percentage may be specified by law, these Articles of Organization or the
by-laws of the Corporation, the affirmative vote of the holders of at least
eighty (80%) percent of the combined voting power of the outstanding stock
of the Corporation entitled to vote generally in the election of Directors
("Voting Stock"), voting together as a single class, shall be required to
amend, alter, adopt any provision inconsistent with or to repeal this
provision.
- 4 -
<PAGE>
VI. Other lawful provisions 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:
No Director or officer shall be disqualified by his office from
dealing or contracting as vendor, purchaser or otherwise, whether in his
individual capacity or through any other corporation, trust, association or firm
in which he is interested as stockholder, director, trustee, partner or
otherwise, with the Corporation or any corporation, trust, association or firm
in which the Corporation shall be a stockholder or otherwise interested or which
shall hold stock or be otherwise interested in the Corporation, nor shall any
such dealing or contract be avoided, nor shall any Director or officer so
dealing or contracting be liable to account for any profit or benefit realized
through any such dealing or contract to the Corporation or to any stockholder or
creditor thereof solely because of the fiduciary relationship established by
reason of his holding such Directorship or office. Any such interest of a
Director shall not disqualify him from being counted in determining the
existence of a quorum at any meeting nor shall any such interest disqualify him
from voting or consenting as a Director or having his vote or consent counted in
connection with any such dealing or contract.
No stockholder shall be disqualified from dealing or contracting as
vendor, purchaser or otherwise, either in his individual capacity or through any
other corporation, trust, association or firm in which he is interested as a
stockholder, Director, trustee, partner or otherwise, with the Corporation or
any corporation, trust, association or firm in which the Corporation shall be a
stockholder or otherwise interested or which shall hold stock or be otherwise
interested in the Corporation, nor shall any such dealing or contract be
avoided, nor shall any stockholder so dealing or contracting be liable to
account for any profit or benefit realized through any such contract or dealing
to the Corporation or to any stockholder or creditor thereof by reason of such
stockholder holding stock in the Corporation to any amount, nor shall any
fiduciary relationship be deemed to be established by such stock holdings.
Meetings of the stockholders of the Corporation may be held at any place
within the United States.
Special meetings of stockholders of the Corporation may be called only
by the Board of Directors, the Chairman of the Board of Directors or the
President.
No action required or permitted to be taken at any annual or special
meetings of the stockholders of the Corporation may be taken without a meeting,
unless the unanimous consent of stockholders entitled to vote thereon is
obtained. The Corporation may be a partner in any business enterprise it would
have power to conduct by itself.
- 5 -
<PAGE>
The Directors may make, amend or repeal the by-laws in whole or in part,
except with respect to any provision thereof which by law, these Amended and
Restated Articles of Organization or the by-laws requires action by the
stockholders.
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
notwithstanding any statutory provision or other law imposing such liability,
except for liability of a Director (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section sixty-one or sixty-two of Chapter 156B of the
Massachusetts General Laws, or (iv) for any transaction from which the Director
derived an improper personal benefit.
Classified Board of Directors
(1) The Directors of the Corporation shall be divided into three classes:
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the whole number of the Board of Directors. If the
number of Directors is not evenly divisible by three, the Board of Directors
shall determine the number of Directors to be elected initially into each class.
The election of directors at a Special Meeting of stockholders held on October
10, 1996 will determine the directors and their respective classes. Thereafter,
Class I Directors will hold office for a term to expire at the first annual
meeting of stockholders thereafter. Thereafter, Class II Directors will hold
office for a term to expire at the second annual meeting of stockholders
thereafter. Thereafter, Class III Directors will hold office for a term to
expire at the third annual meeting of stockholders thereafter. After the October
10, 1996 Special Meeting of Stockholders, the Directors elected to succeed those
whose terms expire shall be identified as being of the same class as the
Directors they succeed and shall be elected to hold office for a term to expire
at the third annual meeting of the stockholders after their election, and until
their respective successors are duly elected and qualified. If the number of
Directors changes, any increase or decrease in Directors shall be apportioned
among the classes so as to maintain all classes as equal in number as possible,
and any additional Director elected to any class shall hold office for a term
which shall coincide with the terms of the other Directors in such class and
until his successor is duly elected and qualified.
(2) Notwithstanding any other provisions of these Articles of
Organization or the by-laws of the Corporation or the fact that a lesser
percentage may be specified by law, these Articles of Organization or the by-
laws of the Corporation, the affirmative vote of the holders of at least eighty
(80%) percent of the combined voting power of the outstanding Voting Stock,
voting together as a single class, shall be required to amend, alter, adopt any
provision inconsistent with or to repeal this provision.
- 6 -
<PAGE>
Vote Required for Certain Business Combinations
(A) In addition to any affirmative vote required by law or these Articles
of Organization, and except as otherwise expressly provided in Paragraph (B) of
this Provision:
1. any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) an Interested Stockholder (as hereinafter
defined) or (b) any other Corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as such term is hereinafter defined) of an Interested Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, grant of a security
interest, transfer or other disposition (in one transaction or a series of
transactions) to or with (a) an Interested Stockholder or (b) or any other
person (whether or not itself an Interested Stockholder) which is, or after such
sale, lease, exchange, mortgage, pledge, grant of security interest, transfer or
other disposition would be, an Affiliate of an Interested Stockholder, directly
or indirectly, of substantially all of the assets of the Corporation (including,
without limitation, any voting securities of a Subsidiary) or any Subsidiary; or
3. the issuance 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, or both, to (a) an Interested Stockholder or (b)
any other person (whether or not itself an Interested Stockholder) which is, or
after such issuance or transfer would be, an Affiliate of an Interested
Stockholder in exchange for cash, securities or other property (or a combination
thereof); or
4. 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 of an Interested Stockholder; or
5. 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)
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 directly or indirectly beneficially owned
by (a) an Interested Stockholder or (b) any other person (whether or not itself
an Interested Stockholder) which is, or after such reclassification,
recapitalization, merger or consolidation or other transaction would be, an
Affiliate of an Interested Stockholder
shall not be consummated unless such consummation shall have been approved by
the affirmative vote of the holders of at least eighty (80%) percent of the
combined voting power of the then outstanding shares of Voting Stock (as
hereinafter defined), voting together as a
- 7 -
<PAGE>
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, in these Articles of Organization or in any agreement with any national
securities exchange or otherwise.
(B) The provisions of Paragraph (A) of this Provision shall not be
applicable to any particular Business Combination (as hereinafter defined) and
such Business Combination shall require only such affirmative votes required by
law if the Business Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined) or all of the following conditions
shall have been met:
1. The transaction constituting the Business Combination shall
provide for a consideration to be received by all holders of Common Stock in
exchange for all their shares of Common Stock, and 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 in such Business Combination shall be at least equal
to the higher of the following:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid in
order to acquire any shares of Common Stock beneficially owned by an Interested
Stockholder (i) within the two-year period immediately prior to the Announcement
Date (as hereinafter defined), (ii) within the two-year period immediately prior
to the Determination Date (as hereinafter defined) or (iii) in the transaction
in which it became an Interested Stockholder, whichever is highest; or
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher;
2. If the transaction constituting the Business Combination shall
provide for a consideration to be received by holders of any class or series of
outstanding Voting Stock other than Common Stock, 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 shares of such class or series of Voting Stock shall be at least
equal to the highest of the following (it being intended that the requirements
of this subparagraph 2 shall be required to be met with respect to every class
or series of outstanding Voting Stock, whether or not an Interested Stockholder
has previously acquired 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 in
order to acquire any shares of-such class or series of Voting Stock beneficially
owned by an Interested Stockholder (i) within the two-year period. immediately
prior to the Announcement Date, (ii) within the two-year period immediately
prior to the Determination Date, or (ii) in the transaction in which it became
an Interested Stockholder, whichever is highest; or
- 8 -
<PAGE>
(b) the Fair Market Value per share of such class or series of
Voting Stock on the Announcement Date or the Determination Date, whichever is
higher; or
(c) (if applicable) the highest preferential amount per share to
which the holders of shares of such class or series of Voting Stock are entitled
in the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation;
3. The consideration to be received by holders of a particular class
or series of outstanding Voting Stock (including Common Stock) shall be in cash
or in the same form as was previously paid in order to acquire shares of such
class or series of Voting Stock which are beneficially owned by an Interested
Stockholder and, if an Interested Stockholder beneficially owns shares of any
class or series of Voting Stock which were acquired with varying forms of
consideration, the form of consideration for such class or series of Voting
Stock shall be either cash or the form used to acquire the largest number of
shares of such class or series of Voting Stock beneficially owned by it. The
price determination in accordance with subparagraphs 1 and 2 of this Paragraph
(B) shall be subject to appropriate adjustment in the event of any
recapitalization, stock dividend, stock split, combination of shares or similar
event;
4. After such 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 Continuing Directors,
there shall have been no failure to declare and pay at the regular date therefor
the full amount of any dividends (whether or not cumulative) payable on any
outstanding preferred stock;
(b) there shall have been (i) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock) other than as approved by a majority of the
Continuing Directors and (ii) 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 Continuing Directors;
(c) such Interested Stockholder shall not have become the
beneficial owner of any additional shares of Voting Stock at a price lower than
that paid in the transaction in which it became an Interested Stockholder.
5. After such 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
- 9 -
<PAGE>
financial assistance or any tax credits or other tax advantages provided the
Corporation, whether in anticipation of or in connection with such Business
Combination or otherwise; and
6. A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934, as amended, 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, no later than the earlier of (a) thirty (30)
days prior to any vote on the proposed Business Combination or (b) if no vote on
such Business Combination is required, sixty (60) 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). Such
proxy statement shall contain at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the Business
Combination which the Continuing Directors, or any of them, may have furnished
in writing and, if deemed advisable by a majority of the Continuing Directors,
an opinion of a reputable investment banking firm as to the fairness (or lack of
fairness) of the terms of such Business Combination, from the point of view of
the holder of Voting Stock other than an Interested Stockholder (such investment
banking firm to be selected by a majority of the Continuing Directors, to be
furnished with all information it reasonably requests and to be paid a
reasonable fee for its services upon receipt by the Corporation of such
opinion).
(C) For the purposes of this Provision:
1. "Business Combination" shall mean any transaction which is
referred to in any one or more of subparagraphs 1 through 5 of Paragraph (A) of
this Provision.
2. "Voting Stock" shall mean stock of all classes and series of the
Corporation entitled to vote generally in the election of Directors.
3. "Person" shall mean any individual, firm, trust, partnership,
association, Corporation or other entity.
4. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary or any person who was a stockholder of the
Corporation on October 10, 1996) who or which:
(a) is the beneficial owner, directly or indirectly, of more than
ten (10%) percent of the combined voting power of the then 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 more than ten (10%) percent of the combined
voting power of the then outstanding Voting Stock; or
- 10 -
<PAGE>
(c) is 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 the date in question beneficially owned by an
Interested Stockholder, unless such assignment or succession shall have occurred
pursuant to a Public Transaction (as hereinafter defined) or any series of
transactions involving a Public Transaction.
For the purposes of determining whether a person is an Interested
Stockholder, the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of subparagraph 6 below but
shall not include any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or option, or otherwise.
5. "Public Transaction" shall mean any (a) purchase of shares offered
pursuant to an effective registration statement under the Securities Act of 1933
or (b) open-market purchase of shares on a national securities exchange if, in
either such case, the price and other terms of sale are not negotiated by the
purchaser and the seller of the beneficial interest in the shares.
6. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates beneficially owns,
directly or indirectly; or
(b) which such person or any of its Affiliates has (i) the right to
acquire (whether such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise or (ii) the right to vote or to direct the voting thereof pursuant to
any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
7. "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on June 27, 1989.
8. "Subsidiary" shall mean any Corporation of which a majority of any
class of equity security (as defined in Rule 12b-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on May 13,
1991) is owned, directly or indirectly, by the Corporation; provided, however,
that for the purposes of the definition of Interested Stockholder set forth in
subparagraph 4, the term "Subsidiary" shall mean only a
- 11 -
<PAGE>
corporation of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
9. "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a nominee of, an
Interested Stockholder and was a member of the Board prior to the time that such
Interested Stockholder became an Interested Stockholder, and any successor of a
Continuing Director who is unaffiliated with, and not a nominee of, an
Interested Stockholder and is recommended to succeed a Continuing Director by a
majority of Continuing Directors then on the Board.
10. "Announcement Date" shall mean the date of the first public
announcement of the proposed Business Combination.
11. "Determination Date" shall mean the date on which an Interested
Stockholder became an Interested Stockholder.
12. "Fair Market Value" shall mean: (a) in the case of stock, the
highest closing sale price during the thirty period immediately preceding the
date in question of a share of such stock on the National Market System of the
National Association of Securities Dealers Automated Quotation System or any
system then in use on any national securities exchange or automated quotation
system, or if no such quotations are available, the fair market value on the
date in question of a share of such stock as determined by a majority of the
Continuing Directors in good faith; and (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 a majority of the Continuing Directors in good faith.
(D) A majority of the Continuing Directors shall have the power and
duty to determine for the purposes of this Provision, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Provision, including, without limitation, (1)
whether a person is an Interested Stockholder, (2) the number of shares of
Voting Stock beneficially owned by any person, (3) whether a person is an
Affiliate of another, (4) whether the requirements of Paragraph (B) of this
Provision have been met and (5) such other matters with respect to which a
determination is required under this Provision. The good faith determination of
a majority of the Continuing Directors on such matters shall be conclusive and
binding for all purposes of this Provision.
(E) Nothing contained in this Provision shall be construed to relieve an
Interested Stockholder of any fiduciary obligation imposed by law.
(F) Notwithstanding any other provisions of these Articles of Organization
or the By-laws of the Corporation or the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of at least eighty (80%)
percent of the combined voting power
- 12 -
<PAGE>
of the then outstanding Voting Stock, voting together as a single class, shall
be required to amend, alter, adopt any provision inconsistent with or repeal
this Provision.
Redemption of Shares
In accordance with Section 6 of Chapter 110D of the General Laws of
the Commonwealth of Massachusetts, the Corporation by action of its Board of
Directors is authorized, at the option of the Corporation by such Board action
but without requiring agreement of the person who has made a control share
acquisition (as defined in said Chapter 110D), to redeem all but not less than
all shares acquired in such a control share acquisition in accordance with and
subject to the limitations contained in said Chapter 110D including Section 6
thereof.
- 13 -
<PAGE>
AMENDED AND RESTATED
BY-LAWS
-------
OF
SUBURBAN OSTOMY SUPPLY CO., INC.
--------------------------------
<PAGE>
Effective October 10, 1996
BY-LAWS
-------
of
SUBURBAN OSTOMY SUPPLY CO., INC.
--------------------------------
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE 1 Articles of Organization 1
ARTICLE 2 Fiscal Year 1
ARTICLE 3 Meetings of Stockholders
Section 3.1 Annual Meeting 1
Section 3.2 Special Meeting 3
Section 3.3 Place of Meeting 4
Section 3.4 Notice of Meetings 4
Section 3.5 Quorum 4
Section 3.6 Action without Meeting 5
Section 3.7 Proxies and Voting 5
ARTICLE 4 Directors
Section 4.1 Enumeration, Election and Term of Office 6
Section 4.2 Powers 8
Section 4.3 Meetings of Directors 8
Section 4.4 Quorum of Directors 9
Section 4.5 Consent in Lieu of Meeting and Participation in
Meetings by Communications Equipment 9
Section 4.6 Committees 10
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
ARTICLE 5 Officers
Section 5.1 Enumeration, Election and Term of Office 10
Section 5.2 President and Chairman of the Board 11
Section 5.3 Treasurer and Assistant Treasurer 11
Section 5.4 Clerk and Assistant Clerk 12
Section 5.5 Secretary of the Board and Assistant Secretary 12
Section 5.6 Temporary Clerk and Temporary Secretary 13
Section 5.7 Other Powers and Duties 13
ARTICLE 6 Resignations, Removals and Vacancies
Section 6.1 Resignations 13
Section 6.2 Removals 14
Section 6.3 Vacancies 15
ARTICLE 7 Indemnification of Directors and Others
Section 7.1 Definitions 16
Section 7.2 Right to Indemnification 16
Section 7.3 Indemnification Not Available 17
Section 7.4 Compromise or Settlement 17
Section 7.5 Advances 17
Section 7.6 Not Exclusive 17
Section 7.7 Insurance 17
ARTICLE 8 Stock
Section 8.1 Stock Authorized 18
Section 8.2 Issue of Authorized and Unissued Capital Stock 18
Section 8.3 Certificates of Stock 18
Section 8.4 Replacement Certificate 19
Section 8.5 Transfers 19
Section 8.6 Record Date 20
ARTICLE 9 Miscellaneous Provisions
Section 9.1 Execution of Papers 21
Section 9.2 Voting of Securities 21
Section 9.3 Corporate Seal 22
Section 9.4 Corporate Records 22
ARTICLE 10 Amendments 22
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C> <C>
ARTICLE 11 Control Share Acquisitions
Section 11.1 Redemption of Acquired Shares 23
Section 11.2 No Appraisal Rights 24
</TABLE>
iii
<PAGE>
AMENDED AND RESTATED BY-LAWS
----------------------------
of
SUBURBAN OSTOMY SUPPLY CO., INC.
--------------------------------
ARTICLE 1
---------
Articles of Organization
------------------------
The name and purposes of the Corporation shall be as set forth in the
Articles of Organization. These By-Laws, the powers of the Corporation and its
Directors and stockholders, and all matters concerning the conduct and
regulation of the business of the Corporation, shall be subject to such
provisions in regard thereto, if any, as are set forth in the Articles of
Organization. All references in these By-Laws to the Articles of Organization
shall be construed to mean the Articles of Organization of the Corporation as
from time to time amended or restated.
ARTICLE 2
---------
Fiscal Year
-----------
Except as from time to time otherwise determined by the Directors, the
fiscal year of the Corporation shall be the twelve months ending on the Saturday
nearest to August 31.
ARTICLE 3
---------
Meetings of Stockholders
------------------------
Section 3.1 Annual Meeting
----------- --------------
The Annual Meeting of the Stockholders shall be held at 2:00 o'clock P.M. on
the first Wednesday of December in each year. Purposes for which an Annual
Meeting is to be held, additional to those prescribed by law and these By-Laws,
may be specified by the President or by the Directors.
<PAGE>
If such Annual Meeting has not been held on the day herein provided
therefor, a Special Meeting of the Stockholders in Lieu of the Annual Meeting
may be held, and any business transacted or elections held at such Special
Meeting shall have the same effect as if transacted or held at the Annual
Meeting, and in such case all references to these By-Laws, except in this
Section 3.1, to the Annual Meeting of the Stockholders shall be deemed to refer
to such Special Meeting. Any such Special Meeting shall be called, and the
purposes thereof shall be specified in the Call, as provided in Section 3.2 of
this Article 3.
To be properly brought before the meeting, business must be of a nature that
is appropriate for consideration at an Annual Meeting and must be (i) specified
in the Notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (ii) otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or (iii) otherwise
properly brought before the meeting by a stockholder. In addition to any other
applicable requirements, for business to be properly brought before the Annual
Meeting by a stockholder, the stockholder must have given timely Notice thereof
in writing to the Clerk of the Corporation. To be timely, each such Notice must
be given either by personal delivery or by United States mail, postage prepaid,
to the Clerk of the Corporation not later than (1) with respect to a matter to
be brought before an Annual Meeting of Stockholders or Special Meeting of
Stockholders in Lieu of the Annual Meeting, sixty (60) days prior to the date
set forth in the By-Laws for the Annual Meeting and (2) with respect to a matter
to be brought before a Special Meeting of the stockholders not in lieu of an
Annual Meeting, the close of business on the tenth (10th) day following the date
on which Notice of such meeting is first given to stockholders. The Notice
shall set forth (i) information concerning the stockholder, including his or her
name and address;
2
<PAGE>
(ii) a representation that the stockholder is entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to present the matter
specified in the Notice; and (iii) such other information as would be required
to be included in a proxy statement soliciting proxies for the presentation of
such matter to the meeting.
Notwithstanding anything in these By-Laws to the contrary, no business shall
be transacted at the Annual Meeting except in accordance with the procedures set
forth in this Section; provided, however, that nothing in this Section shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the Annual Meeting in accordance with these By-Laws.
Section 3.2 Special Meeting
----------- ---------------
A Special Meeting of the Stockholders may be called at any time by the
President, the Chairman or by a majority of the Directors acting by vote or by
written instrument or instruments signed by them. Such Call shall state the
time, place, and purposes of the meeting.
Section 3.3 Place of Meeting
----------- ----------------
All meetings of the stockholders shall be held at the principal office of
the Corporation in Massachusetts, unless a different place within Massachusetts
or, if permitted by the Articles of Organization, elsewhere within the United
States is designated by the President, or by a majority of the Directors acting
by vote or by written instrument or instruments signed by them. Any adjourned
session of any meeting of the stockholders shall be held at such place within
Massachusetts or, if permitted by the Articles of Organization, elsewhere within
the United States as is designated in the vote of adjournment.
3
<PAGE>
Section 3.4 Notice of Meetings
----------- ------------------
A written Notice of the place, date and hour of all meetings of stockholders
stating the purposes of the meeting shall be given at least seven (7) days
before the meeting to each stockholder entitled to vote thereat, by leaving such
Notice with him or at his residence or usual place of business, or by mailing,
postage prepaid, and addressed to such stockholder at his address as it appears
in the records of the Corporation. Such Notice shall be given by the Clerk, or
in the case of the death, absence, incapacity or refusal of the Clerk, by any
other officer or by a person designated either by the Clerk, by the person or
persons calling the meeting or by the Board of Directors. Whenever Notice of a
meeting is required to be given to a stockholder under any provision of law, of
the Articles of Organization, or of these By-Laws, a written Waiver thereof,
executed before or after the meeting by such stockholder or his attorney
thereunto authorized, and filed with the records of the meeting, shall be deemed
equivalent to such Notice.
Section 3.5 Quorum
----------- ------
At any meeting of the stockholders, a quorum for the election of any
Director or for the consideration of any question shall consist of a majority in
interest of all stock issued, outstanding and entitled to vote at such election
or upon such question, respectively, except that if two or more classes of stock
are entitled to vote as separate classes for the election of any Director or
upon any question, then in the case of each such class a quorum for the election
of any Director or for the consideration of such question shall consist of a
majority in interest of all stock of that class issued, outstanding and entitled
to vote thereon. Stock owned by the Corporation, if any, shall be disregarded
in determining any quorum. Whether or not a quorum
4
<PAGE>
is present, any meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, and the meeting may be held as adjourned
without further notice.
When a quorum for an election is present at any meeting, a plurality of the
votes properly cast for any office shall elect such office. When a quorum for
the consideration of a question is present at any meting, a majority of the
votes properly cast upon the question shall decide the question; except that if
two or more classes of stock are entitled to vote as separate classes upon such
question, then in the case of each such class a majority of the votes of such
class properly cast upon the question shall decide the vote of that class upon
the question; and except in any case where a larger vote is required by law or
by the Articles of Organization.
Section 3.6 Action without Meeting
----------- ----------------------
Any action required or permitted to be taken at any meeting of the
stockholders may be taken without a meeting if all stockholders entitled to vote
on the matter consent to the action in writing and the written Consents are
filed with the records of the meetings of stockholders. Such Consents shall be
treated for all purposes as a vote at a meeting.
Section 3.7 Proxies and Voting
----------- ------------------
Except as may otherwise be provided in the Articles of Organization,
stockholders entitled to vote shall have one vote for each share of stock
entitled to vote owned by them. Stockholders entitled to vote may vote in
person or by proxy. No proxy dated more than six (6) months before the meeting
named therein shall be valid and no proxy shall be valid after the final
adjournment of such meeting. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by any one of them unless at or
prior to the exercise of the proxy the Corporation receives specific written
notice to the contrary from any one of them. A proxy
5
<PAGE>
purporting to be executed by or on behalf of a stockholder shall be deemed valid
unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger. Proxies shall be filed with the Clerk,
or person performing the duties of clerk, at the meeting, or any adjournment
thereof, before being voted.
The Corporation shall not, directly or indirectly, vote upon any share of
its own stock.
ARTICLE 4
---------
Directors
---------
Section 4.1 Enumeration, Election and Term of Office
----------- ----------------------------------------
The business and affairs of the Corporation shall be managed under the
direction of a Board of Directors consisting of not fewer than three (3)
Directors, the exact number to be determined from time to time by resolution
adopted by the affirmative vote of a majority of the entire Board of Directors,
such Board of Directors to be divided into such classes and elected by such
stockholders as have the right to vote thereon, for such terms as are provided
in the Articles of Organization. Each director shall hold office until his
successor shall have been elected and qualified, subject to Article 6 of these
By-Laws. Whenever used in these By-Laws, the phrase "entire Board of Directors"
shall mean that number of Directors fixed by the most recent resolution adopted
pursuant to the preceding sentence prior to the date as of which a determination
of the number of Directors then constituting the entire Board of Directors shall
be relevant for any purpose under these By-Laws. Subject to the foregoing
limitations and the requirements of the Articles of Organization, the Board of
Directors may be enlarged by the stockholders at any meeting or by the
affirmative vote of a majority of the entire Board of Directors then in office.
6
<PAGE>
Nominations for the election of Directors may be made by the Board of
Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote generally in the election of Directors. However,
any stockholder entitled to vote generally in the election of Directors may
nominate one or more persons for election as Directors at a meeting 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 Clerk of the Corporation not later than (1) with
respect to an election to be held at an Annual Meeting of Stockholders or
Special Meeting in Lieu of an Annual Meeting, sixty (60) days prior to the date
for the Annual Meeting set forth in the By-laws and (2) with respect to an
election to be held at a Special Meeting of Stockholders not in lieu of an
Annual Meeting, the close of business on the tenth (10th) day following the date
on which notice of such meeting is first given to stockholders. Each such Notice
to the Clerk shall set forth (i) the name and addresses of the stockholder and
his or her nominees; (ii) a representation that the stockholder is 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; (iii) a description
of all arrangements or understandings between the stockholder and each such
nominee; (iv) such other information as would be required to be included in a
proxy statement soliciting proxies for the election of the nominees of such
stockholder; and (v) the consent of each nominee to serve as a Director of the
Corporation if so elected. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the Corporation
to determine the eligibility of such proposed nominee to serve as a Director of
the corporation. The presiding officer of the meeting may, if the facts
warrant, determine that a nomination was not made in accordance with the
foregoing
7
<PAGE>
procedure, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
No Director need be a stockholder. Any election of Directors by the
stockholders shall be by ballot if so requested by any stockholder entitled to
vote thereon.
Section 4.2 Powers
----------- ------
The business of the Corporation shall be managed by the Board of Directors,
which shall exercise all the powers of the Corporation except as otherwise
required by law, by the Articles of Organization or by these By-Laws. In the
event of one or more vacancies in the Board of Directors, the remaining
Directors, if at least two (2) Directors still remain in office, may exercise
the powers of the full Board until such vacancy or vacancies are filled.
Section 4.3 Meetings of Directors
----------- ---------------------
Regular meetings of the Directors may be held without notice at such places
and at such times as may be fixed from time to time by the Directors. A regular
meeting of the Directors may be held without notice immediately following the
Annual Meeting of Stockholders or any Special Meeting held in lieu thereof.
Special meetings of Directors may be called by the Chairman of the Board,
the President, the Treasurer or any two (2) or more Directors, or if there shall
be less than three (3) Directors by any one (1) Director, and shall be held at
such time and place as specified in the Call. Reasonable notice of each special
meeting of the Directors shall be given to each Director. Such notice may be
given by the Secretary or Assistant Secretary of the Board, the Clerk or any
Assistant Clerk or by the officer or one of the Directors calling the meeting.
Notice to a Director shall in any case be sufficient if sent by telegram at
least forty-eight (48) hours or by mail at least
8
<PAGE>
ninety-six (96) hours before the meeting addressed to him at his usual or last
known business or residence address, or if given to him at least forty-eight
(48) hours before the meeting in person or by telephone or by handing him a
written Notice. Notice of a meeting need not be given to any Director if a
written Waiver of Notice, executed by him before or after the meeting, is filed
with the records of the meeting, or to any Director who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him. A Notice or Waiver of Notice need not specify the purposes of the meeting.
Section 4.4 Quorum of Directors
----------- -------------------
At any meeting of the Directors, a quorum for any election or for the
consideration of any question shall consist of a majority of the Directors then
in office. Whether or not a quorum is present any meeting may be adjourned from
time to time by a majority of the votes properly cast upon the question, and the
meeting may be held as adjourned without further Notice. When a quorum is
present at any meeting, the votes of a majority of the Directors present shall
be requisite and sufficient for election to any office and shall decide any
question brought before such meeting, except in any case where a larger vote is
required by law, by the Articles of Organization or by these By-Laws.
Section 4.5 Consent in Lieu of Meeting and Participation in Meetings by
----------- -----------------------------------------------------------
Communications Equipment
------------------------
Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if all the Directors consent to the
action in writing and the written Consents are filed with the records of the
meetings of the Directors. Such Consents shall be treated for all purposes as a
vote of the Directors at a meeting.
9
<PAGE>
Members of the Board of Directors or any Committee designated thereby may
participate in a meeting of such Board or Committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
Section 4.6 Committees
----------- ----------
By vote of a majority of the Directors then in office, the Directors may
elect from their own number an Executive Committee or other Committees and may
by like vote delegate to any such Committee some or all of their powers except
those which by law may not be delegated.
ARTICLE 5
---------
Officers
--------
Section 5.1 Enumeration, Election and Term of Office
----------- ----------------------------------------
The officers of the Corporation shall include a President, a Treasurer and a
Clerk, who shall be chosen by the Directors at their first meeting following the
Annual Meeting of the Stockholders. Each of them shall hold his office until
the next annual election to the office which he holds and until his successor is
chosen and qualified or until he sooner dies, resigns, is removed or becomes
disqualified.
The Directors may choose one of their number to be Chairman of the Board and
determine his powers, duties and term of office. The Directors may at any time
appoint such other officers, including one or more Vice Presidents, Assistant
Treasurers, Assistant Clerks, a Secretary of the Board and an Assistant
Secretary of the Board as they deem wise, and may determine their respective
powers, duties and terms of office.
10
<PAGE>
No officer need be a stockholder or a Director except that the Chairman of
the Board shall be a Director. The same person may hold more than one office,
except that no person shall be both President and Clerk.
Section 5.2 President and Chairman of the Board
----------- -----------------------------------
The President shall be the Chief Executive Officer of the Corporation and,
subject to the control and direction of the Directors, shall have general
supervision and control of the business of the Corporation. He shall preside at
all meetings of the stockholders at which he is present, and, if he is a
Director, at all meetings of the Directors if there shall be no Chairman of the
Board or in the absence of the Chairman of the Board.
If there shall be a Chairman of the Board, he shall make his counsel
available to the other officers of the Corporation, and shall have such other
duties and powers as may from time to time be conferred on him by the Directors.
He shall preside at all meetings of the Directors at which he is present, and,
in the absence of the President, at all meetings of stockholders.
Section 5.3 Treasurer and Assistant Treasurer
----------- ---------------------------------
The Treasurer shall have the custody of the funds and valuable books and
papers of the Corporation, except such as are directed by these By-Laws to be
kept by the Clerk or by the Secretary of the Board. He shall perform all other
duties usually incident to his office, and shall be at all times subject to the
control and direction of the Directors. If required by the Directors, he shall
give bond in such form and amount and with such sureties as shall be determined
by the Directors.
11
<PAGE>
If the Treasurer is absent or unavailable, any Assistant Treasurer shall
have the duties and powers of Treasurer and shall have such further duties and
powers as the Directors shall from time to time determine.
Section 5.4 Clerk and Assistant Clerk
----------- -------------------------
If the Corporation shall not have a resident agent appointed pursuant to
law, the Clerk shall be a resident of the Commonwealth of Massachusetts. The
Clerk shall record all proceedings of the stockholders in a book to be kept
therefor. In case a Secretary of the Board is not elected, the Clerk shall also
record all proceedings of the Directors in a book to be kept therefor.
If the Corporation shall not have a transfer agent, the Clerk shall also
keep or cause to be kept the stock and transfer records of the Corporation,
which shall contain the names of all stockholders and the record address and the
amount of stock held by each.
If the Clerk is absent or unavailable, any Assistant Clerk shall have the
duties and powers of the Clerk and shall have such further duties and powers as
the Directors shall from time to time determine.
Section 5.5 Secretary of the Board and Assistant Secretary
----------- ----------------------------------------------
If a Secretary of the Board is elected, he shall record all proceedings of
the Directors in a book to be kept therefor.
If the Secretary of the Board is absent or unavailable, any Assistant
Secretary shall have the duties and powers of the Secretary and shall have such
further duties and powers as the Directors shall from time to time determine.
12
<PAGE>
If no Secretary or Assistant Secretary has been elected, or if, having been
elected, no Secretary or Assistant Secretary is present at a meeting of the
Directors, the Clerk or an Assistant Clerk shall record the proceedings of the
Directors.
Section 5.6 Temporary Clerk and Temporary Secretary
----------- ---------------------------------------
If no Clerk or Assistant Clerk shall be present at any meeting of
stockholders, or if no Secretary, Assistant Secretary, Clerk or Assistant Clerk
shall be present at any meeting of the Directors, the person presiding at the
meeting shall designate a Temporary Clerk or Secretary to perform the duties of
Clerk or Secretary.
Section 5.7 Other Powers and Duties
----------- -----------------------
Each officer shall, subject to these By-Laws and to the control and
direction of the Directors, have in addition to the duties and powers
specifically set forth in these By-Laws, such duties and powers specifically set
forth in these By-Laws, such duties and powers as are customarily incident to
his office and such additional duties and powers as the Directors may from time
to time determine.
ARTICLE 6
---------
Resignations, Removals and Vacancies
------------------------------------
Section 6.1 Resignations
----------- ------------
Any Director or officer may resign at any time by delivering his resignation
in writing to the President or the Clerk or to a meeting of the Directors. Such
resignation shall take effect at such time as is specified therein, or if no
such time is so specified, then upon delivery thereof to the President or the
Clerk or to a meeting of the Directors.
13
<PAGE>
Section 6.2 Removals
----------- --------
Directors, including Directors elected by the Directors to fill vacancies in
the Board, may be removed from office (a) with cause by vote of the holders of a
majority of the shares issued and outstanding and entitled to vote generally in
the election of Directors; (b) with or without cause by vote of the holders of
at least 80% of the votes entitled to be cast by the holders of all shares of
the Corporation entitled to vote generally in the election of Directors, voting
together as a single class; (c) with cause by vote of a majority of the
Directors then in office; or (d) without cause by vote of at least 80% of the
Directors then in office (including the Director to be removed in calculating
said percentage); provided that the Directors of a class elected by a particular
class of stockholders may be removed only by vote of the holders of a majority
of the shares of such class.
The Directors may terminate or modify the authority of any agent or
employee. The Directors may remove any officer from office with or without
assignment of cause by vote of a majority of the Directors then in office.
If cause is assigned for removal of any Director or officer, such Director
or officer may be removed only after a reasonable notice and opportunity to be
heard before the body proposing to remove him.
No Director or officer who resigns or is removed shall have any right to any
compensation as such Director or officer for any period following his
resignation or removal, or any right to damages on account of such removal
whether his compensation be by the month or by the year or otherwise; provided,
however, that the foregoing provision shall not prevent such Director or
14
<PAGE>
officer from obtaining damages for breach of any contract of employment legally
binding upon the Corporation.
Section 6.3 Vacancies
----------- ---------
Any vacancy in the Board of Directors, including a vacancy resulting from an
enlargement of the Board, may be filled by the Directors by vote of a majority
of the remaining Directors then in office, though less than a quorum, or by the
stockholders at a meeting called for the purpose provided that any vacancy
created by the stockholders may be filled by the stockholders at the same
meeting. Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of Directors in
which the new Directorship was created or the vacancy occurred and until such
Directors' successor shall have been elected and qualified or until he sooner
dies, resigns, is removed or becomes disqualified.
If the office of any officer becomes vacant, the Directors may choose or
appoint a successor by vote of a majority of the Directors present at the
meeting at which such choice or appointment is made.
Each such successor shall hold office for the unexpired term of his
predecessor and until his successor shall be chosen or appointed and qualified,
or until he sooner dies, resigns, is removed or becomes disqualified.
15
<PAGE>
ARTICLE 7
---------
Indemnification of Directors and Others
---------------------------------------
Section 7.1 Definitions
----------- -----------
For purposes of this Article 7:
(a) "Director/officer" means any person who is serving or has served as a
Director, officer, employee or other agent of the Corporation appointed or
elected by the Board of Directors or the stockholders of the Corporation, or who
is serving or has served at the request of the Corporation as a Director,
officer, trustee, principal, partner, employee or other agent of any other
corporation.
(b) "Proceeding" means any action, suit or proceeding, civil or criminal,
brought or threatened in or before any court, tribunal, administrative or
legislative body or agency.
(c) "Expense" means any fine or penalty, and any liability fixed by a
judgment, order, decree or award in a Proceeding and any professional fees and
other disbursements reasonably incurred in connection with a Proceeding.
Section 7.2 Right to Indemnification
----------- ------------------------
Except as limited by law or as provided in Sections 7.3 and 7.4 of this
Article 7, each Director/officer (and his heirs and personal representatives)
shall be indemnified by the Corporation against all Expenses incurred by him in
connection with each Proceeding in which he is involved as a result of his
serving or having served as a Director/officer.
16
<PAGE>
Section 7.3 Indemnification not Available
----------- -----------------------------
No indemnification shall be provided to a Director/officer with respect to a
Proceeding as to which it shall have been adjudicated that he did not act in
good faith in the reasonable belief that his action was in the best interests of
the Corporation.
Section 7.4 Compromise or Settlement
----------- ------------------------
In the event that a Proceeding is compromised or settled so as to impose any
liability or obligation on a Director/officer or upon the Corporation, no
indemnification shall be provided as to said Director/officer with respect to
such Proceeding if such Director/officer shall have been adjudicated not to have
acted in good faith in the reasonable belief that his action was in the best
interests of the Corporation.
Section 7.5 Advances
----------- --------
The Corporation shall pay sums on account of indemnification in advance of a
final disposition of a Proceeding, upon receipt of an undertaking by the
Director/officer to repay such sums if it is subsequently established that he is
not entitled to indemnification pursuant to Sections 7.3 and 7.4 hereof, which
undertaking may be accepted without reference to the financial ability of such
person to make repayment.
Section 7.6 Not Exclusive
----------- -------------
Nothing in this Article 7 shall limit any lawful rights to indemnification
existing independently of this Article 7.
Section 7.7 Insurance
----------- ---------
The provisions of this Article 7 shall not limit the power of the Board of
Directors to authorize the purchase and maintenance of insurance on behalf of
any Director/officer against
17
<PAGE>
any Expense, whether or not the Corporation would have the power to indemnify
him against such Expense under this Article 7.
ARTICLE 8
---------
Stock
-----
Section 8.1 Stock Authorized
----------- ----------------
The total number of shares and the par value, if any, of each class of stock
which the Corporation is authorized to issue, and if more than one class is
authorized, the descriptions, preferences, voting powers, qualifications and
special and relative rights and privileges as to each class and any series
thereof, shall be as stated in the Articles of Organization.
Section 8.2 Issue of Authorized Unissued Capital Stock
----------- ------------------------------------------
Any unissued capital stock from time to time authorized under the Articles
of Organization and Amendments thereto may be issued by vote of the Directors.
No stock shall be issued unless the cash, so far as due, or the property,
services or expenses for which it was authorized to be issued, has been actually
received or incurred by, or conveyed or rendered to, the Corporation, or is in
its possession as surplus.
Section 8.3 Certificates of Stock
----------- ---------------------
Each stockholder shall be entitled to a certificate in such form as may be
prescribed from time to time by the Directors or stockholders, stating the
number and the class and the designation of the series, if any, of the shares
held by him. Such certificate shall be signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer. Such signatures may
be facsimiles if the certificate is signed by a transfer agent, or by a
registrar, other than a Director, officer or employee of the Corporation. In
case any officer who has signed or whose
18
<PAGE>
facsimile signature has been placed on such certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the time of its
issue.
Every certificate issued by the Corporation for shares of stock at a time
when such shares are subject to any restrictions on transfer pursuant to the
Articles of Organization, the By-Laws or any agreement to which the Corporation
is a party shall have the restriction noted conspicuously on the certificate and
shall also set forth on the face or back of the certificate either the full text
of the restriction, or a statement of the existence of such restriction and a
statement that the Corporation will furnish a copy thereof to the holder of such
certificate upon written request and without charge. Every stock certificate
issued by the Corporation at a time when it is authorized to issue more than one
class or series of stock shall set forth upon the face or back of the
certificate either the full text of the preferences, voting powers,
qualifications and special and relative rights of the shares of each class and
series, if any, authorized to be issued, as set forth in the Articles of
Organization, or a statement of the existence of such preferences, powers,
qualifications and rights and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
Section 8.4 Replacement Certificate
----------- -----------------------
In case of the alleged loss or destruction or the mutilation of a
certificate of stock, a new certificate may be issued in place thereof, upon
such conditions as the Directors may determine.
Section 8.5 Transfers
----------- ---------
Subject to the restrictions, if any, imposed by the Articles of
Organization, the By-Laws or any agreement to which the Corporation is a party,
shares of stock shall be transferred on the
19
<PAGE>
books of the Corporation only by the surrender to the Corporation or its
transfer agent of the certificate representing such shares properly endorsed or
accompanied by a written assignment of such shares or by a written power of
attorney to sell, assign or transfer such shares, properly executed, with
necessary transfer stamps affixed, and with such proof that the endorsement,
assignment or power of attorney is genuine and effective as the Corporation or
its transfer agent may reasonably require. Except as may otherwise be required
by law, the Corporation shall be entitled to treat the record holder of stock as
shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect thereto, regardless of
any transfer, pledge or other disposition of such stock, until the shares have
been transferred on the books of the Corporation in accordance with the
requirements of these By-Laws. It shall be the duty of each stockholder to
notify the Corporation of his post office address.
Section 8.6 Record Date
----------- -----------
The Directors may fix in advance a time, which shall be not more than sixty
(60) days before the date of any meeting of stockholders or the date for the
payment of any dividend or the making of any distribution to stockholders or the
last day on which the consent or dissent of stockholders may be effectively
expressed for any purpose, as the record date for determining the stockholders
having the right to notice of and to vote at such meeting and any adjournment
thereof or the right to receive such dividend or distribution or the right to
give such consent or dissent, and in such case only stockholders of record on
such date shall have such right, notwithstanding any transfer of stock on the
books of the Corporation after the record date; or
20
<PAGE>
without fixing such record date the Directors may for any of such purposes close
the transfer books for all or any part of such period.
If no record date is fixed and the transfer books are not closed:
(1) The record date for determining stockholders having the right to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given.
(2) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
acts with respect thereto.
ARTICLE 9
---------
Miscellaneous Provisions
------------------------
Section 9.1 Execution of Papers
----------- -------------------
All deeds, leases, transfers, contracts, bonds, notes, releases, checks,
drafts and other obligations authorized to be executed on behalf of the
Corporation shall be signed by the President or the Treasurer except as the
Directors may generally or in particular cases otherwise determine.
Section 9.2 Voting of Securities
----------- --------------------
Except as the Directors may generally or in particular cases otherwise
determine, the President or the Treasurer may, on behalf of the Corporation (i)
waive Notice of any meeting of stockholders or shareholders of any other
corporation, or of any association, trust or firm, of which any securities are
held by this Corporation; (ii) appoint any person or persons to act as proxy or
attorney-in-fact for the Corporation, with or without substitution, at any such
meeting;
21
<PAGE>
and (iii) execute instruments of Consent to stockholder or shareholder action
taken without a meeting.
Section 9.3 Corporate Seal
----------- --------------
The seal of the Corporation shall be a circular die with the name of the
Corporation, the word "Massachusetts" and the year of its incorporation cut or
engraved thereon, or shall be in such other form as the Board of Directors or
the stockholder may from time to time determine.
Section 9.4 Corporate Records
----------- -----------------
The original, or attested copies, of the Articles of Organization, By-Laws,
and the records of all meetings of incorporators and stockholders, and the stock
and transfer records, which shall contain the names of all stockholders and the
record address and the amount of stock held by each, shall be kept in
Massachusetts for inspection by the stockholders at the principal office of the
Corporation or at an office of the Clerk, or if the Corporation shall have a
transfer agent or a resident agent, at an office of either of them. Said
copies and records need not all be kept in the same office.
ARTICLE 10
----------
Amendments
----------
These By-Laws may be altered, amended or repealed or new by-laws enacted by
the affirmative vote of a majority of the entire Board of Directors (if notice
of the proposed alteration or amendment is contained in the Notice of the
meeting at which such vote is taken or if all Directors are present) or at any
regular meeting of the stockholders (or at any special meeting thereof duly
called for that purpose) by the affirmative vote of a majority of the shares
22
<PAGE>
represented and entitled to vote at such meeting (if notice of the proposed
alteration or amendment is contained in the Notice of such meeting).
Notwithstanding anything contained in the preceding paragraph of this
Article 10 to the contrary, either (i) the affirmative vote of the holders of at
least eighty (80%) percent of the votes entitled to be cast by the holders of
all shares of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class, or (ii) the affirmative vote of a
majority of the entire Board of Directors with the concurring vote of a majority
of the Continuing Directors, voting separately and as a subclass of Directors,
shall be required to alter, amend or repeal or adopt any provision inconsistent
with, Section 3.1, Section 3.2, Section 3.6, Section 4.1 and this paragraph of
this Article 10. For purposes of this Article 10, the term "Continuing
Director" shall have the meaning ascribed to it in Article 6 of the Articles of
Organization of the Corporation.
ARTICLE 11
----------
Control Share Acquisitions
--------------------------
Section 11.1 Redemption of Acquired Shares
------------ -----------------------------
In the event of a control share acquisition to which Chapter 110D of the
General Laws of Massachusetts is applicable, the Corporation may, at the option
of the Corporation but without requiring the agreement of the person who has
made a control share acquisition, redeem all but not less than all shares
acquired in such control share acquisition, from such person for the fair value
of such shares if:
(i) No control acquisition statement has been delivered; or
23
<PAGE>
(ii) A control acquisition statement has been delivered and voting
rights were not authorized for such shares by the stockholders in
accordance with the provisions of Section 5 of Chapter 110D of
the General Laws of Massachusetts
Notice of such redemption shall be given by the Corporation not later than
sixty (60) days after the date on which the stockholders voted not to authorize
voting rights for the shares to be redeemed, or if no control share acquisition
statement has been delivered prior to the date on which notice of redemption is
given by the Corporation, sixty (60) days after the first day on which the Board
of Directors of the Corporation has actual knowledge of such control share
acquisition.
For purposes of this Section 11.1, fair value shall be determined as of the
date on which the stockholders voted not to authorize voting rights for the
shares to be redeemed, or, if no control acquisition statement is delivered, as
of the date on which the Corporation determines to make a redemption under this
Section 11.1. Such value shall be determined in accordance with procedures
adopted by the Board of Directors and without regard to the effect of the denial
of voting rights under the provisions of Section 5 of Chapter 110D of the
General Laws of Massachusetts.
Section 11.2 No Appraisal Rights
------------ -------------------
Unless otherwise provided by the Articles of Organization, no shareholder
shall be entitled to demand or receive payment for his stock nor to an appraisal
in accordance with the provisions of Section 86-98, inclusive, of Chapter 156B
of the General Laws of Massachusetts in connection with the authorization of
voting rights for shares acquired by another shareholder in a
24
<PAGE>
control share acquisition in accordance with the provisions of Section 5 of
Chapter 110D of the General Laws of Massachusetts.
25
<PAGE>
S05-
Suburban Ostomy
INCORPORATED UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS
SUBURBAN OSTOMY SUPPLY CO., INC.
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFICATE IS TRANSFERABLE CUSIP 864471 10 7
IN BOSTON, MA OR NEW YORK, NY
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES, NO PAR VALUE, OF THE COMMON STOCK OF
SUBURBAN OSTOMY SUPPLY CO., INC., transferable on the books of the Corporation
by the holder hereof in person or by duly authorized attorney upon surrender of
this Certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be held subject to all of the provisions of the
Articles of Organization and By-Laws of the Corporation, each as from time to
time amended (copies of which are on file with the Transfer Agent and Registrar)
to all of which the holder by acceptance hereof assents. This Certificate is not
valid until countersigned and registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of
its duly authorized officers.
Dated:
[SEAL APPEARS HERE]
[SIGNATURE APPEARS HERE] [SIGNATURE APPEARS HERE]
TREASURER PRESIDENT
<PAGE>
SUBURBAN OSTOMY SUPPLY CO., INC.
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK, THE
CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS A
COPY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE RIGHTS OF THE SHARES
OF EACH OUTSTANDING CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION, AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS.
The following abbreviations, when used in the inscription in the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties ----------- -----------
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to Minors
in common Act
-----------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, ________________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
CERTIFYING NUMBER OF ASSIGNEE
-------------------------------------------------
-------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares
- --------------------------------------------------------------------------
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
- ------------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated
----------------------------------
-------------------------------
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
-------------------------------
THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS,
STOCKHOLDERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS
WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION
PROGRAMS, PURSUANT TO S.E.C.
RULE 1746-16.
