As filed with the Securities and Exchange Commission on September 21, 1995
SEC File No. 1-5075
Registration No.
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S E C U R I T I E S A N D E X C H A N G E C O M M I S S I O N
F O R M S - 8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EG&G, INC.
--------------------------------------------------------
(Exact name of issuer as specified in its charter)
MASSACHUSETTS 04-2052042
-------------------------------- ---------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
45 WILLIAM STREET, WELLESLEY, MASSACHUSETTS 02181
---------------------------------------------------------------------------
(Address of Principal Executive Offices) (zip code)
EG&G, INC. 1992 STOCK OPTION PLAN
-------------------------------------
(Full Title of the plan)
MURRAY GROSS, ESQ., GENERAL COUNSEL, EG&G, INC.
45 William Street, Wellesley, Massachusetts 02181
(617)437-5100)
-------------------------------------------------------------
(Name, address and telephone number of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount (2) Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee
---------- ---------- ------------- -------------- ------------
Common Stock 847,542 $19.1875 $16,262,212.12 $5607.66
$1 par value shares
---------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
This estimated fee is based on the average of the high ($19.25) and low
($19.125) prices paid for a share of EG&G, Inc. Common Stock on September
15, 1995 as reported on the New York Stock Exchange Composite Transactions
Tape.
(2) The prospectus covering securities registered under this Registration
Statement relates also to Registration Statements Nos. 2-61241, 2-98168,
33-36082, 33-49898, 35-57606, and 33-54785 and is intended to be the common
prospectus referred to in Rule 429 under the Securities Act of 1933 for
such Registration Statements.
Exhibit Index P. 5<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in this Registration Statement by
reference:
a. EG&G, Inc.'s ("EG&G", the "Company" or the "Registrant") latest
annual report filed pursuant to Section 13 (a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act, that contains audited
financial statements for the Company's latest fiscal year for which such
statements have been filed, or the Company's effective registration
statement on Form 10 and 10-SB, 20-F, or 40-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal
year.
b. All other reports filed by the Company pursuant to Section 13
(a) or 15(d) of the Exchange Act since the end of the fiscal year covered
by the documents referred to in (a) above.
c. The Company's definitive proxy statement or information
statement, if any, filed pursuant to Section 14 of the Exchange Act in
connection with the latest annual meeting of its stockholders, and any
definitive proxy or information statements so filed in connection with any
subsequent special meetings of its stockholders.
d. The description of the Company's Common Stock is contained in
Form 10, dated April 29, 1965, as amended by Form 8, dated June 5, 1990,
and including any amendment or report filed for the purpose of updating
such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of
such reports and documents.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
<PAGE>
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Accountants - The financial statements and schedules of the Company
included in the Company's Annual Report on Form 10K for the year ended
January 1, 1995 and incorporated by reference herein have been audited by
Arthur Anderson LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said reports.
Reference is made to said report with respect the Company's financial
statements, which includes an explanatory paragraph with respect to the
change in the methods of accounting for postretirement benefits other than
pensions and for income taxes in 1993 and the method of accounting for
marketable investments in 1994.
Legal Opinion - The validity of the shares of Common Stock to be
offered hereunder has been passed upon for EG&G by Murray Gross, Vice
President, General Counsel and Clerk of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67, Chapter 156B of the General Laws of the Commonwealth of
Massachusetts, as amended, (the "Massachusetts Business Corporation Law")
and Article V, Section 9 of EG&G's By-Laws, to which reference is hereby
made, contain provisions authorizing indemnification by EG&G of directors,
officers, employees or agents against certain liabilities and expenses
which they may incur as directors, officers, employees or agents of EG&G or
of certain other entities. Section 67, Chapter 156B of the Massachusetts
Business Corporation Law provides that the indemnification of directors,
officers, employees, and agents of a corporation and persons who serve at
the corporation's request as directors, officers, employees, and other
agents of another organization may be provided to whatever extent as shall
be specified by (i) the articles of organization of the corporation 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. Unless otherwise provided in the articles of organization or
the by-laws, the indemnification of any persons described above who are not
directors of the corporation may be provided by the corporation 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 prior to the final disposition of such action
or proceeding, upon receipt of an undertaking by the indemnified person to
repay such payment if he shall be adjudicated to be not entitled to
indemnification under Section 67 of the Massachusetts Business Corporation
Law. Any 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. Indemnification may not be
provided for any person with respect to any matter as to which that person
shall have been adjudicated in any proceeding to not have acted in good
faith in the reasonable belief that his action was in the best interest of
the corporation.
Section 65 of the Massachusetts Business Corporation Law provides a
limitation on the imposition of liability under other sections of the
Massachusetts Business Corporation Law. Under this Section, a director,
officer or incorporator of a corporation is to perform his duties in good
faith and in a manner he reasonably believes to be in the best interests of
the corporation and with such care as an ordinarily prudent person in a
like position would use under similar circumstances. Such director,
officer or incorporator is entitled to rely on information, opinions,
reports or records, including financial statements, books of accounts and
other financial records which are prepared by or presented by or under the
supervision of (1) one or more officers or employees of the corporation
whom the director, officer or incorporator reasonably believes to be
reliable and competent in the matters presented, or (2) counsel, public
<PAGE>
accountants or other persons as to matters which the director, officer or
incorporator reasonably believes to be within such a person's professional
expert competence, or (3) in the case of a director, a duly constituted
committee of the board upon which he does not serve, as to matters within
its delegated authority, which committee the director reasonably believes
to merit confidence. If a director, officer or incorporator performs his
duties in the manner that is set forth above, that fact shall be an
absolute defense to any claim asserted against him except as expressly
provided by statute.
Section 13 of the Massachusetts Business Corporation Law provides that
the articles of organization of a corporation may contain a provision
eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of a
fiduciary duty as a director notwithstanding any provision of law imposing
such liability; provided, however, that such 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) under Section 61 or 62 of the Massachusetts
Business Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. Article Six of the Restated
Articles of Organization of the Registrant contains a provision consistent
with Section 13 of the Massachusetts Business Corporation Law and provides
that to the fullest extent permitted by the Massachusetts Business
Corporation Law, a director of the Registrant shall not be personally
liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, notwithstanding any provision of
law imposing such liability.
Section 9 of Article V of the By-laws of the Registrant contains
provisions relating to the indemnification of directors and officers of the
Registrant which are consistent with Section 67 of the Massachusetts
Business Corporation Law. This Section provides that no indemnification
will be provided to any person who was or is a director or officer with
respect to any matter as to which such person shall have been finally
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; nor shall indemnification be provided where the corporation is
required or has undertaken to submit to a court the question of whether or
not indemnification by it is against public policy and it has been finally
determined that such indemnification is against public policy; provided,
however that, prior to such final adjudication, the corporation may
compromise and settle any such claims and liabilities and pay such
expenses, if such settlement or payment, or both, appears, in the judgment
of a majority of those members of the Board of Directors who are not
directly involved in such matters, to be for the best interest of the
corporation as evidenced by a resolution to that effect adopted after
receipt by the corporation of a written opinion of counsel for the
corporation that, based upon the facts available to such counsel such
person has not acted in a manner that would prohibit indemnification.
Section 67 of the Massachusetts Business Corporation Law also contains
provisions authorizing a corporation to obtain insurance on behalf of any
director, officer, employee or agent of the corporation against
liabilities, whether or not the corporation would have the power to
indemnify against such liabilities. The Registrant maintains directors'
and officers' liability and company reimbursement liability insurance.
Subject to certain deductibles, such insurance will pay up to $50,000,000
per year on claims or errors and omissions against the Registrant's
directors and officers and will reimburse the Registrant for amounts paid
to indemnify directors and officers against the costs of such claims
pursuant to the Registrant's By-Laws.
<PAGE>
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
Item 8. EXHIBITS
The following exhibits are filed herewith or incorporated
herein by reference:
<TABLE>
<S> <C> <C>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
------- -------- ------------
4. (i) EG&G's Restated Articles of Organization, filed
with the Massachusetts Secretary of the
Commonwealth on July 31, 1995. 11
(ii) EG&G's By-Laws as amended on May 3, 1995 50
(iii) The form of certificate used to evidence
ownership of EG&G Common Stock, $1 parvalue, was
filed as Exhibit 4(a) to EG&G's Registration
statement on Form S-3, File No. 2-69642 and is
herein incorporated by reference N/A
(iv) The Rights Agreement dated as of January 25,
1995 between EG&G, Inc. and The First National
Bank of Boston was filed as Exhibit 4.1 to the
Company's Form 8-K dated January 25, 1995 and
is herein incorporated by reference N/A
(v) The EG&G, Inc. 1992 Stock Option Plan was filed
as Exhibit 4(v) to EG&G's Registration Statement
on Form S-8, File No. 33-49898 and is herein
incorporated by reference N/A
(vi) The EG&G, Inc. 1982 Incentive Stock Option Plan,
as amended and restated as of April 24, 1990,
was filed as Exhibit 4(v) to EG&G's Registration
Statement on Form S-8, File No. 33-36082 and is
herein incorporated by reference N/A
(vii) The EG&G, Inc. 1978 Non-Qualified Stock Option
Plan, as amended through January 26, 1988, was
directors of the corporation may be provided by
the corporation to the Statement on Form S-8,
File No. 33-36082 and is herein incorporated
by reference N/A
5. Opinion of Murray Gross, Esquire, Vice
President, General Counsel and Clerk to EG&G,
Inc. 67
24. Consent of Experts and Counsel
(i) Consent of Arthur Andersen LLP 69
(ii) Consent of Murray Gross, Esquire, is contained
in his Opinion filed as Exhibit 5 N/A
25. Power of Attorney 9
</TABLE>
<PAGE>
Item 9. UNDERTAKINGS
EG&G hereby undertakes:
(1) To file during any period in which offers or sales are being
made, post-effective amendment(s) to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the Plan.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
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 Securities 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 Securities Act and will be governed
by a final adjudication of such issue.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, EG&G certifies that
it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
Town of Wellesley, Commonwealth of Massachusetts, on the 26th day of July
1995.
EG&G, Inc.
By: /s/ John M. Kucharski
John M. Kucharski,
Chairman of the Board, President and
Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of EG&G, Inc., hereby
severally constitute John M. Kucharski and Murray Gross, and each of them
singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names, in the capacities indicated
below, the Registration Statement filed herewith and any amendments to said
Registration Statement, and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable EG&G, Inc. to
comply with the provisions of the Securities Act of 1933 as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any
of them, to said Registration Statement and any and all amendments thereto.
Witness our hands and common seals on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
--------- ------ -----
(i) Principal Executive Officer
/s/ John M. Kucharski Chairman of the July 26, 1995
-------------------------- Board, President -------------
John M. Kucharski and Chief Executive
Officer
(ii) Principal Financial Officer
/s/ Thomas J. Sauser Senior Vice President July 26, 1995
-------------------------- and Chief Financial -------------
Thomas J. Sauser Officer
(iii) Principal Accounting Officer
/s/ John F. Alexander, II Vice President and July 26, 1995
-------------------------- Corporate Controller -------------
John F. Alexander, II
</TABLE>
<PAGE>
<TABLE>
(iv) A majority of the Board of Directors
<CAPTION>
<S> <C> <C>
/s/ John M. Kucharski Director July 26, 1995
-------------------------- -------------
John M. Kucharski
/s/ Samuel Rubinovitz Director July 26, 1995
-------------------------- -------------
Samuel Rubinovitz
/s/ Robert F. Goldhammer Director July 26, 1995
-------------------------- -------------
Robert F. Goldhammer
s/ John B. Gray Director July 26, 1995
-------------------------- -------------
John B. Gray
/s/ William F. Pounds Director July 26, 1995
-------------------------- -------------
William F. Pounds
/s/ Kent F. Hansen Director July 26, 1995
-------------------------- -------------
Kent F. Hansen
/s/ G. Robert Tod Director July 26, 1995
-------------------------- -------------
G. Robert Tod
/s/ John Larkin Thompson Director July 26, 1995
-------------------------- -------------
John Larkin Thompson
/s/ Greta E. Marshall Director July 26, 1995
-------------------------- -------------
Greta E. Marshall
</TABLE>
EXHIBIT 4 (i)
Federal Identification
No. 04-205 2042
------------
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108-1512
RESTATED ARTICLES OF ORGANIZATION
General Laws, Chapter 156B, Section 74
We, John M. Kucharski, President, and Murray Gross, Clerk of
EG&G, Inc.
located at 45 William Street, Wellesley, MA 02181
do hereby certify that the following Restatement of the Articles of
Organization was duly adopted at a meeting of the EG&G Board of Directors
held on July 26, 1995, by unanimous vote.
<PAGE>
Article I
----------
The name of the corporation is:
EG&G, Inc.
<PAGE>
Article II
-----------
The purpose of the corporation is to engage in the following business
activities:
To manufacture, buy, sell, store, alter, and otherwise deal in or
with electrical, electronic, photographic and mechanical equipment,
devices, machinery, products, supplies, and material of all kinds.
To render consulting and advisory services of all kinds.
To engage in research, experimentation, and development work of all
kinds either for its own account or for others.
To engage in, conduct, and carry on any other business or businesses
and to engage in any lawful act or activity for which corporations may be
organized under Chapter 156B of the Laws of the Commonwealth of
Massachusetts or any amendment or substitution therefor.
To purchase, lease, exchange or otherwise acquire, hold, store, sell,
encumber, or otherwise deal in or with any real or personal property or any
rights or privileges which the corporation may consider necessary or
convenient for the purpose of its business, provided, however, that this
corporation shall not engage in the real estate business.
To acquire by purchase, lease, exchange or otherwise the whole or any
part of the good will, patents, trade names, rights, licenses, and property
of any person or persons, firm, association, or corporation heretofore or
hereafter engaged in any of these businesses or any similar business or
businesses or in any business which this corporation is authorized to carry
on, and pay for the same in cash or in stock or other securities of this
corporation or otherwise, and hold and in any manner dispose of the whole
or any part of the property so acquired, and conduct in any lawful manner
the whole or any part of the business or businesses so acquired.
To borrow money, to issue notes, bonds or other obligations, secured
or unsecured, of the Corporation for any purpose for which it is
incorporated.
To purchase or otherwise receive, hold, sell, and otherwise deal in
or with all or any part of the capital stock of any class, bonds, notes,
debentures, or other securities of any corporation, including this
corporation, association, government, state municipality, or other
organization.
To do any and all other acts and things and to exercise any and all
other powers which a partnership or a natural person could do and exercise
which now or hereafter may be authorized by the law governing business
corporations in furtherance of these purposes.
To carry on any business herein described either for its own account
or as agent, broker, or otherwise.
<PAGE>
Article III
-----------
State the total number of shares and par value, if any, of each class
of stock which the corporation is authorized to issue:
<TABLE>
----------------------------------------
WITHOUT PAR VALUE
----------------------------------------
<S> <C>
TYPE NUMBER OF SHARES
---- ----------------
Common: None
Preferred: None
----------------------------------------
<TABLE\>
</TABLE>
<TABLE>
-------------------------------------------------------
WITH PAR VALUE
-------------------------------------------------------
<S> <C> <C>
TYPE NUMBER OF SHARES PAR VALUE
---- ---------------- ---------
Common: 100,000,000 $1.00
Preferred: 1,000,000 $1.00
-------------------------------------------------------
<TABLE\>
<PAGE>
Article IV
----------
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a
class, if shares of another class are outstanding, the corporation must
provide a description of the preferences, voting powers, qualifications,
and special or relative rights or privileges of that class and of each
other class of which shares are outstanding and of each series then
established within any class:
The following is a description of each class of stock of the
corporation and the respective preferences, powers, qualifications and
special or relative rights or privileges as to each class.
A. Preferred Stock. The Preferred Stock may be issued in one or
more series at such time or times and for such considerations as the Board
of Directors may determine. Each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes. Except as to the relative rights and preferences referred to
hereinafter in respect of any or all of which there may be variations
between different series, and except that shares of any one series issued
at different times may differ as to the dates from which dividends thereon
shall accrue and be cumulative, all shares of Preferred Stock shall be
identical. Different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by
classes.
The Board of Directors is expressly authorized, subject to the
limitations prescribed by law and the provisions of these Articles, to
provide by adopting a resolution or resolutions, a certificate of which
shall be filed in accordance with the Business Corporation Law of the
Commonwealth of Massachusetts, for the issue of the Preferred Stock in one
or more series, each with such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof as shall be stated in the resolution or
resolutions creating such series. The authority of the Board of Directors
with respect to each such series shall include, without limitation of the
foregoing, the right to determine and fix:
(1) The distinctive designation of such series and the number
of shares to constitute such series;
(2) The rate at which dividends on the shares of such series
shall be declared and paid, or set aside for payment, before
any dividends on the Common Stock with respect to the same
dividend period shall be declared and paid or set aside for
payment; whether dividends at the rate so determined shall be
cumulative and if so from what date or dates and on what terms;
and whether the shares of such series shall be entitled to any
participating or other dividends in addition to dividends at
the rate so determined, and if so on what terms;
(3) The right, if any, of the corporation to redeem shares of
the particular series and, if redeemable, the terms and
conditions of such redemption, including the redemption price
or prices which the shares of such series shall be entitled to
receive upon redemption;
(4) The preferences, if any, and the amount or amounts per
share, which the shares of such series shall be entitled to
receive upon any voluntary of involuntary liquidation,
dissolution or winding up of the corporation;
<PAGE>
(5) The terms and conditions, if any, upon which shares of such
series shall be convertible into, or exchangeable for, shares
of stock of any other class or classes or other series of the
same class, including the price or prices or the rate or rates
of conversion or exchange and the terms of adjustment, if any;
(6) The obligation, if any, of the corporation to retire or
purchase shares of such series pursuant to a sinking fund of a
similar nature or otherwise, and the terms and conditions of
such obligations;
(7) Voting rights, if any, provided that the shares of all
series with voting rights shall not have more than one vote per
share;
(8) The status as to reissuance or sale of shares of such
series redeemed, purchased or otherwise reacquired, or
surrendered to the corporation on conversion;
(9) The conditions and restrictions, if any, on the payment of
dividends or on the making of other distributions on, or the
purchase, redemption or other acquisition by the corporation or
any subsidiary, of the Common Stock or of any other class of
stock of the corporation ranking junior to the shares of such
series as to dividends or upon liquidation;
(10) The conditions and restrictions, if any, on the creation
of indebtedness of the corporation, or any subsidiary, or on
the issue of any additional stock ranking on a parity with or
prior to the shares of such series as to dividends or upon
liquidation;
(11) Such other preferences or restrictions or qualifications
thereof as the Board of Directors may deem advisable and are
not inconsistent with law and the provisions of these Articles.
No holder of shares of the Preferred Stock shall be entitled as
such, as a matter of right, to subscribe for or purchase any
part of any new or additional issue of stock of any class
whatsoever of the corporation, or of securities convertible
into stock of any class, whether now or hereafter authorized,
or whether issued for cash or other consideration or by way of
dividend.
Terms of $4.00 Convertible Preferred Stock, Series A
----------------------------------------------------
RESOLVED: That pursuant to the authority granted to
the Board of Directors of EG&G, Inc. (hereafter
referred to as the "Company") by the provisions of
its Articles of Organization, as amended, the Board
of Directors hereby creates a series of the
Preferred Stock, $1 par value per share, of the
Company consisting of 21,997 shares, and fixes the
designation and the voting powers, preferences and
rights, and the qualifications, limitations and
restrictions of such series (in addition to the
provisions of the Articles of Organization, as
amended, of the Company which are applicable to
shares of the Preferred Stock of all series) as
follows:
<PAGE>
1. Designation. The designation of said series of Preferred Stock,
$1 par value per share, shall be "$4.00 Convertible Preferred Stock, Series
A" (hereinafter called "Series A Stock").
2. Dividends. The holders of Series A Stock shall be entitled to
cumulative dividends at the rate of $4.00 per share per annum when and as
declared by the Board of Directors, payable quarterly on the first day of
February, May, August, and November in each year (each such day being
hereinafter called a "dividend payment date") commencing with the year
1969. Dividends shall be cumulative on each share of Series A Stock from
the date of issuance thereof. Dividends at the above rate shall be
cumulative whether or not the Company shall have had assets legally
available for such dividends in any dividend period. Holders of Series A
Stock shall not be entitled to any dividends other than full cumulative
dividends in cash at the above rate, and shall be entitled to no interest
on unpaid cumulative dividends.
Unless the full amount of cumulative dividends on the Series A Stock
up to and including the next following dividend payment date shall have
been paid or declared and a sum sufficient for the payment thereof set
apart, neither the Company nor any subsidiary of the Company shall at any
time (a) set aside or apply any sum for the purchase or redemption of any
outstanding capital stock of the Company of any class or series (whether by
purchase or by redemption pursuant to any sinking fund provisions, optional
redemption provisions, or otherwise) or (b) declare any dividend (other
than a dividend payable in Common Stock) or set aside or apply any sum for
the payment of any dividend or other distribution on the Common Stock or
any other class of stock of the Company except Preferred Stock.
The Company shall not issue any Preferred Stock, other than Series A
Stock, unless full cumulative dividends on all outstanding shares of the
Series A Stock up to and including the dividend payment date next preceding
the date of such issue shall have been paid or declared and a sum
sufficient for the payment thereof set apart; and neither the Company nor
any subsidiary of the Company shall declare any dividend or set aside or
apply any sum for the payment of dividends on any series of Preferred Stock
other than Series A, if after giving effect to such dividend and to all
dividends on the Series A Stock paid or declared and covered by a sum set
aside for the payment thereof, the ratio between the unpaid cumulative
dividends and the annual dividend rate on the Series A Stock would be
greater than the same ratio in the case of such other series of Preferred
Stock.
For the purpose of the foregoing provisions a corporation is a
"subsidiary" of another corporation (the "Parent") if a majority of the
subsidiary's outstanding stock ordinarily entitled to vote in the election
of directors (excluding stock which is entitled to vote in the election of
directors only upon the happening of some contingency such as failure to
pay dividends) is owned by the parent and/or one or more of its
subsidiaries. A corporation is also the subsidiary of another corporation
if its parent is a subsidiary of such other corporation.
3. Optional Redemption. Shares of Series A Stock may be redeemed,
in whole or in part, at any time after the fifth anniversary of the date on
which any shares of Series A Stock are first issued, at the option of the
Company expressed by resolution of the Board of Directors, at a redemption
price of $100 per share plus an amount equal to unpaid cumulative dividends
accrued to the date of redemption.
<PAGE>
If less than all the outstanding shares of Series A Stock are to be
redeemed, the shares to be redeemed shall be selected either by lot or pro
rata in such manner as may be prescribed by resolution of the Board of
Directors. Notice to the holders of shares of Series A Stock to be
redeemed shall be given by mailing to such holders a notice of such
redemption, first class, postage prepaid, not later than the sixtieth day,
and not earlier than the ninetieth day before the date fixed for
redemption, at their last addresses as they shall appear upon the books of
the Company. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
stockholder receives such notice; and failure duly to give such notice by
mail, or any defect in such notice, to any stockholder designated for
redemption shall not affect the validity of the proceedings for the
redemption of any other shares of Series A Stock.
The notice of redemption to each stockholder whose shares of Series A
Stock are to be redeemed shall specify the number of shares of Series A
Stock of such stockholder to be redeemed, the date fixed for redemption and
the redemption price at which shares of Series A Stock are to be redeemed,
and shall specify where payment of the redemption price is to be made upon
surrender of such shares, shall state the conversion price then in effect,
and shall state that accrued dividends to the date fixed for redemption
will be paid as specified in said notice, that from and after said date
dividends thereon will cease to accrue, and that conversion rights of such
shares shall cease and terminate at the close of business on the date fixed
for redemption.
In the case of each share of Series A Stock called for redemption as
above provided, the Company shall be obligated (unless such share shall be
converted on or prior to the redemption date) to pay to the holder thereof
the redemption price plus accrued dividends, if any, to the redemption
date, upon surrender of the certificate for such share at the office of any
transfer agent for the Series A Stock, on or after the redemption date.
Unless the Company shall default in the payment of the redemption price
plus accrued dividends, if any, dividends on each share of Series A Stock
so called for redemption shall cease to accrue from and after the
redemption date.
4. Rights on Liquidation. In the event of any liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary,
the holders of shares of Series A Stock then outstanding shall be entitled
to be paid out of the assets of the Company available for distribution to
its stockholders an amount equal to $100 per share, plus an amount equal to
unpaid cumulative dividends, (and no more) before any payment shall be made
to the holders of Common Stock or any other class of stock of the Company
other than Preferred Stock. If the assets of the Company available for
distribution to its stockholders shall be insufficient to pay in full all
amounts to which the holders of Preferred Stock of all series are entitled,
the amount available for distribution to the stockholders shall be shares
by the holders of all series of Preferred Stock pro rata according to the
amounts to which the shares of each series are entitled. For the purposes
of this Section 4, a consolidation or merger of the Company with any other
Corporation, or the sale, transfer or lease of all or substantially all its
assets shall not constitute or be deemed a liquidation, dissolution or
winding up of the Company.
<PAGE>
5. Conversion. The shares of the Series A Stock shall be
convertible at the option of the respective holders thereof at any time at
the principal office of the Company in Bedford, Massachusetts, and at such
other offices or agencies of the Company, if any, as the Board of Directors
may determine, into fully paid and non-assessable whole shares of Common
Stock of the Company at the conversion rate, determined as hereinafter
provided, in effect at the time of conversion; provided, however, such
right of conversion shall cease and terminate, as to shares called for
redemption, at the close of business on the date fixed for redemption,
unless default shall be made in the payment of the redemption price.
5.1 The initial rate at which shares of Common Stock shall be
delivered upon conversion (the "initial conversion rate") shall be one and
one-half (1 1/2) shares of common stock for each share of Series A Stock.
The initial conversion rate and any adjusted conversion rate shall be
subject to adjustment from time to time in certain instances as hereinafter
provided. Upon conversion the Company shall make no payment or adjustment
on account of dividends accrued or in arrears on (a) the shares of the
Series A Stock surrendered for conversion or (b) the shares of Common Stock
issued on conversion of such shares of Series A Stock, provided that a
holder of Series A Stock of record on a record date for the payment of a
dividend thereon shall be entitled to such dividend notwithstanding his
conversion of such Series A Stock before the dividend is paid.
Whenever reference is made in this Section 5 to the issue or sale of
shares of Common Stock the term "Common Stock" shall mean stock of the
Company of any class, whether now or hereafter authorized, which by its
terms has the right to participate in the distribution of either the assets
or earnings of the Company without limit as to amount or percentage. The
Common Stock initially issuable upon conversion of shares of Series A Stock
shall, however, be Common Stock, $1 par value per share, of the Company as
constituted on August 29, 1968.
Before any holder of shares of Series A Stock shall be entitled to
convert the same into Common Stock, he shall surrender the certificate or
certificates for such shares of Series A Stock at one of the offices
specified as provided in this Section 5, which certificate or certificates,
if the Company shall so request, shall be duly endorsed to the Company or
in blank or accompanied by proper instruments of transfer to the Company or
in blank, and accompanied by funds in the amount of any tax or taxes
payable or which may be payable in respect of any transfer involved in the
issue and delivery of certificates for shares of Common Stock in a name
other than that of the record holder of shares of Series A Stock in respect
of which such shares of Common Stock are issued, and shall give written
notice to the Company at said office that he elects so to convert said
shares of Series A Stock, and shall state in writing therein the name or
names in which he wishes the certificate or certificates for Common Stock
to be issued.
<PAGE>
The Company will as soon as practicable after such deposit of
certificates for shares of Series A Stock accompanied by the written notice
and the statement above prescribed, issue and deliver at the office at
which such certificates for shares of Series A Stock shall have been
deposited to the person for whose account such shares of Series A Stock
were so surrendered, or to his nominee or nominees, certificates for the
number of whole shares of Common Stock to which he shall be entitled as
aforesaid, together with an adjustment of any fraction of a share as
hereinafter provided, if not evenly convertible. Such conversion shall be
deemed to have been made as of the date of such surrender of the shares of
Series A Stock to be converted; and the person or persons entitled to
receive the shares of Common Stock issuable upon the conversion of such
shares of Series A Stock shall be treated for all purposes as the record
holder or holders of such Common Stock on such date. However, the Company
shall not be required to convert, and no surrender of shares of Series A
Stock shall be effective for that purpose, while the stock transfer books
of the Company are closed for any purpose; but the surrender of shares of
Series A Stock for conversion during any period while such books are so
closed shall become effective for conversion immediately upon the reopening
of such books, at the conversion price in effect at the date of such
surrender.
5.2 The conversion rates, initial or adjusted, referred to
herein shall be subject to adjustment from time to time as follows:
5.2.1. In case the Company shall (i) declare a dividend
on its Common Stock payable in shares of its capital stock,
(ii) subdivide its outstanding Common Stock, (iii) combine
its outstanding Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its Common Stock (including
any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation)
any shares, the conversion rate in effect at the time of the
record date for such dividend or of the effective date of such
subdivision, combination or reclassification shall be proportionately
adjusted so that the holder of any shares of Series A Stock
surrendered for conversion after such time shall be entitled
to receive the number and kind of shares which he would have
owned or have been entitled to receive had such shares of Series A
Stock been converted immediately prior to such time. Such
adjustment shall be made successively whenever any event
listed above shall occur.
5.2.2 In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after such
record date) to subscribe for or purchase Common Stock at a price
per share less than the current market price per common share
(as defined in Subsection 5.2.4 below) on such record date, the
number of shares of Common Stock into which each share of Series A
Stock shall be convertible after such record date shall be determined
by multiplying the number of shares of Common Stock into which such
shares of Series A Stock were convertible immediately prior to such
record date by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on such record date
plus the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be
the number of shares of Common Stock outstanding on such record
date plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares so offered would purchase
at such current market price. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights
or warrants are not so issued, the conversion rate shall again be
adjusted to be the conversion rate which would then be in effect
if such record date had not been fixed.
<PAGE>
5.2.3. In case the Company shall fix a record date for the
making of a distribution to all holders of its Common Stock (including
any such distribution made in connection with a consolidation or merger
in which the Company is the continuing corporation) of evidences of its
indebtedness or assets (excluding dividends paid in, or distribution
of, cash) or subscription rights or warrants (excluding those referred
to in Subsection 5.2.2 above), the number of shares of Common Stock into
which each share of Series A Stock shall be convertible after such record
date shall be determined by multiplying the number of shares of Common
Stock into which each such share of Series A Stock was convertible
immediately prior to such record date by a fraction, of which the
numerator shall be the current market price per share of Common Stock
(as defined in Subsection 5.2.4. below) on such record date, and of
which the denominator shall be such current market price per share of
Common Stock, less the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive, and described
in a statement filed with each conversion agent) of the portion of the
assets or evidences of indebtedness so distributed or of such
subscription rights or warrants applicable to one share of Common Stock.
Such adjustment shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made, the
conversion rate shall again be adjusted to be the conversion rate which
would then be in effect if such record date had not been fixed.
5.2.4. For the purpose of any computation under Subsections
5.2.2. and 5.2.3. above, the current market price per share of Common
Stock on any record date shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days commencing 45
business days before such date. The closing price for each day shall
be the last sale price regular way or, in case no such sale takes place
on such day, the average of the closing bid and asked prices
regular way, in either case on the New York Stock Exchange, or,
if the Common Stock is not listed or admitted to trading on
such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or if
it is not listed or admitted to trading on any national
securities exchange, the average of the closing bid and asked
prices as furnished by any member of the National Association
of Securities Dealers, Inc. selected from time to time by the
Company for that purpose.
5.2.5. No adjustment in the conversion rate shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such rate; provided, however, that any adjustments which
by reason of this Subsection 5.2.5. are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section shall be made to the nearest cent
or to the nearest one-hundredth of a share, as the case may be.
5.2.6. Whenever the conversion rate is adjusted, as herein
provided, the Company shall promptly file with each office or agency
maintained by the Company for the conversion of Series A Stock, a
certificate of a firm of independent public accountants selected by the
Board of Directors (who may be the regular accountants employed by the
Company) setting forth the conversion rate after such adjustment and
setting forth a brief statement of the facts requiring such adjustment and
a computation thereof. Such certificate shall be conclusive evidence of
the correctness of such adjustment. No conversion agent shall be under any
duty or responsibility with respect to any certificate or any facts set
forth therein, except to exhibit said certificate from time to time to any
holder of Series A Stock desiring to inspect the same. The Company shall
promptly cause a notice setting forth the adjusted conversion rate to be
mailed to the holders of Series A Stock at their last addresses as they
shall appear upon the books of the Company.
<PAGE>
5.2.7. In the event that at any time, as a result of an
adjustment made pursuant to Subsection 5.2.1. above, the holders of
Series A Stock thereafter surrendered for conversion shall become
entitled to receive any shares of the Company other than shares of
Common Stock, thereafter the number of such other shares so receivable
upon conversion of any shares of Series A Stock shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common
Stock contained in Subsections 5.2.1. to 5.2.6., inclusive, above, and
the provisions of Section 5.3 with respect to the Common Stock shall
apply on like terms to any such other shares.
5.3 No fractional shares of Common Stock shall be issued upon
conversions of Series A Stock. If more than one share of Series A Stock
shall be surrendered for conversion at one time by the same holder, the
number of full shares which shall be issuable upon conversion thereof shall
be computed on the basis of the aggregate number of shares of Series A
Stock so surrendered. In lieu of issuing any fractional share, the Company
shall pay a cash adjustment in respect of such fractional interest in an
amount equal to the same fraction of the closing price per share of Common
Stock on the business day next preceding the day of conversion (determined
as provided in Subsection 5.2.4.).
5.4 In case of any consolidation of the Company with, or merger of
the Company into, any other corporation (other than a consolidation or
merger in which the Company is the continuing corporation), or in case of
any conveyance or transfer of the property and assets of the Company
substantially as an entirety, the corporation formed by such consolidation
or into which the Company shall have been merged or the person which shall
have acquired by conveyance or transfer such property and assets, as the
case may be, shall execute and deliver to each conversion agent an
agreement, providing that the holders of Series A Stock then outstanding
shall have the right thereafter to convert such Series A Stock into the
kind and amount of shares of stock and other securities and property
receivable upon such consolidation, merger, conveyance or transfer by a
holder of the number of shares of Common Stock of the Company into which
such Series A Stock might have been converted immediately prior to such
consolidation, merger, conveyance or transfer. Such agreement shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. No conversion
agent shall be under any responsibility to determine the correctness of any
provision contained in any such agreement relating either to the kind or
amount of shares of stock or other securities or property receivable by
holders upon the conversion of their Series A Stock after any such
consolidation, merger, conveyance or transfer, or any adjustment to be made
with respect thereto. The above provision of this Subsection shall
similarly apply to successive consolidations, mergers, conveyances or
transfers.
5.5. In case:
(a) the Company shall authorize the issuance to all holders of
its Common Stock of rights or warrants to subscribe for or purchase
shares of its Common Stock or of any other subscription rights or
warrants; or
(b) the Company shall authorize the distribution to all
holders of its Common Stock of evidences of its indebtedness or
assets (other than dividends paid in, or distributions of, cash); or
(c) of any consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the conveyance or transfer of the properties and
assets of the Company substantially as an entirety; or
<PAGE>
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) the Company proposes to take any action (other than
actions of the character described in Subsection 5.2.1.) Which would
require an adjustment of the conversion rate pursuant to Subsection
5.2;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Series A Stock and shall cause
to be mailed to the holders of Series A Stock, at their last addresses
appearing on the books of the Company, at least 20 days (or 10 days in any
case specified in clause (a) or (b) above) prior to the applicable record
date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Stock of record to be entitled to receive any such
rights, warrants or distribution are to be determined, or (ii) the date on
which any such consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as
of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property,
if any, deliverable upon such reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up. The failure
to give the notice required by this Subsection or any defect therein shall
not affect the legality or validity of any distribution, right, warrant,
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up, or the vote upon any such action.
5.6. The Company will pay any documentary stamp taxes attributable
to the initial issuance of shares of Common Stock upon conversion of any
shares of Series A Stock pursuant hereto, provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in the issue or delivery of any
certificates for shares of Common Stock in a name other than that of the
registered holder of shares of Series A Stock in respect of which such
shares of Common Stock are issued.
5.7 The Company shall at all times reserve and keep available, out
of its treasury stock or authorized and unissued stock, or both, solely for
the purpose of effecting the conversion of the shares of Series A Stock,
such number of shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all shares of Series A Stock from
time to time outstanding.
Before taking any action which would cause an adjustment reducing the
conversion price below the then par value of the shares of Common Stock
issuable upon conversion of the Series A Stock, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable shares of such Common Stock at such adjusted conversion
price.
6. Voting.
6.1. Subject to the provisions of any applicable law, or of the
By-Laws of the Company as from time to time amended, with respect to the
closing of the transfer books or the fixing of a record date for the
determination of stockholders entitled to vote, at each meeting of
stockholders of the Company each holder of record of shares of Series A
Stock shall be entitled to cast one vote for each share of Series A Stock
standing in such holder's name on the record books of the Company (with the
same rights of cumulative voting, if any, as the Common Stock) on each
matter on which the holders of record of the Common Stock of the Company
shall be entitled to vote, voting together with the holders of record of
the Common Stock and other series of Preferred Stock of the Company
entitled to vote with the Common Stock of the Company, and not by classes
or by series. Each such record holder of shares of Series A Stock shall be
entitled to notice of any such meeting of the stockholders. In addition,
so long as any shares of Series A Stock are outstanding, if at the time of
any annual meeting of stockholders for the election of directors a default
in preferred dividends, as hereinafter defined, shall exist, the holders of
shares of the Preferred Stock of the Company voting separately as a class
without regard to series (with each share of Preferred Stock being entitled
to one vote on a noncumulative basis) shall have the right to elect two
members of the Board of Directors of the Company, and the holders of the
Common Stock, the Series A Stock and any other series of Preferred Stock of
the Company entitled to vote with the Common Stock, voting separately as
another class, shall be entitled to elect the remaining members of the
Board of Directors of the Company. Any director elected by the holders of
the Preferred Stock, voting as a class as aforesaid, shall continue to
serve as such director for the full term for which he shall have been
elected notwithstanding that prior to the end of such term a default in
preferred dividends shall cease to exist. If, prior to the end of the term
of any director elected by the holders of the Preferred Stock, voting as a
class as aforesaid, a vacancy in the office of such director shall occur by
reason of death, resignation, removal or disability, or for any other
cause, the remaining director so elected by the holders of shares of the
Preferred Stock shall be entitled to nominate for election by the Board of
Directors a successor director to hold office for the unexpired term of the
director whose position has become vacant. If the vacancy is not filled by
the election of such nominee or if there is then in office no director who
has been elected by the holders of shares of the Preferred Stock, the
Company shall, as soon as reasonably may be done, call (on at least 20
days' notice) a special meeting of the holders of shares of the Preferred
Stock for the purpose of filling such vacancy or vacancies in the Board of
Directors. If the Company fails to call such a meeting within 30 days
after a written request by any three or more holders of shares of the
Preferred Stock, then such three or more holders of shares of the Preferred
Stock may call (on at least 20 days' notice) a special meeting of the
holders of shares of the Preferred Stock for such purpose and, if the
vacancy or vacancies are not theretofore filled as hereinabove provided, it
or they may be filled at such meeting by the holders of shares of the
Preferred Stock, voting separately as a class regardless of series. For
the purpose of this Section 6, a default in preferred dividends shall be
deemed to have occurred whenever the Company shall have failed to pay four
consecutive quarter-yearly dividends upon an series of Preferred Stock,
and, having so occurred, such default in preferred dividends shall be
deemed to exist thereafter until, but only until, all accrued dividends on
all shares of Preferred Stock then outstanding, shall have been paid to the
end of the last preceding quarterly dividend period.
6.2 Without the written consent or affirmative vote of the holders of
at least two-thirds of the aggregate number of shares of Preferred Stock of
the Company at the time outstanding given in writing or by vote at a
meeting, consenting or voting (as the case may be) separately as a class,
without regard to series, the Company shall not amend, alter or repeal the
preferences, special rights or other powers of the Preferred Stock as set
forth in the Articles of Organization or in this or any other certificate
providing for the authorization of Preferred Stock of any series so as to
affect the Preferred Stock adversely (and the authorization or issuance of
any class of stock with preference or priority over the Preferred Stock as
to the right to receive either dividends or amounts distributable upon
liquidation, dissolution or winding up, shall be deemed so to affect the
Preferred Stock adversely).
<PAGE>
7. Reacquired Shares. Shares of Series A Stock which have been
issued and reacquired through redemption or purchase or have been converted
into shares of any other class or classes of the stock of the Company
shall, upon compliance with any applicable provision of Chapter 156B of the
General Laws of Massachusetts, have the status of authorized and unissued
shares of Preferred Stock and may be reissued as part of the Series A Stock
or as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors.
Terms of Series B Junior Participating Preferred Stock:
-------------------------------------------------------
I. Designation and Amount
The shares of such series shall be designated as "Series B Junior
Participating Preferred Stock" (the "Series B Preferred Stock") and the
number of shares constituting the Series B Preferred Stock shall be
500,000. Such number of shares may be increased or decreased by resolution
of the Board of Directors; provided, that no decrease shall reduce the
number of shares of Series B Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
II. Dividends and Distributions
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to the
Series B Preferred Stock with respect to dividends, the holders of shares
of Series B Preferred Stock, in preference to the holders of Common Stock,
par value $1 per share (the "Common Stock"), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series B Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series B Preferred Stock. In the event the
Corporation shall at any time declare of pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
<PAGE>
(B) the Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as
provided in paragraph (A) of this Section
immediately after it declares a dividend or
distribution on the Common Stock (other than a
dividend payable in shares of Common Stock);
provided that, in the event no dividend or
distribution shall have been declared on the
Common Stock during the period between any
Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a
dividend of $10 per share on the Series B
Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series B
Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of
such shares, unless the date of issue of such
shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the
determination of holders of shares of Series B
Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend
Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series
B Preferred Stock in an amount less than the
total amount of such dividends at the time
accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
The Board of Directors may fix a record date for
the determination of holders of shares of Series
B Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon,
which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
III. Voting Rights
The holders of shares of Series B Preferred Stock shall have the
following voting rights:
(A) Each share of Series B Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the shareholders
of the Corporation.
(B) Except as otherwise provided herein, in any other Certificate of
Vote of Directors creating a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Series B Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class
on all matters submitted to a vote of shareholders of the Corporation.
<PAGE>
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series B Preferred Stock shall have no voting rights.
IV. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series B Preferred Stock as provided in Section II are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends or make any other
distributions, on any shares of stock ranking
junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Series B Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on
a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series B Preferred Stock, except dividends paid
ratably on the Series B Preferred Stock and all
such parity stock on which dividends are payable
or in arrears in proportion to the total amounts
to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B
Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in
exchange for shares of any stock of the
Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or
winding up) to the Series B Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred
Stock, or any shares of stock ranking on a parity
with the Series B Preferred Stock, except in
accordance with a purchase offer made in writing
or by publication (as determined by the Board of
Directors) to all holders of such shares upon
such terms as the Board of Directors, after
consideration of the respective annual dividend
rates and other relative rights and preferences
of the respective series and classes, shall
determine in good faith will result in fair and
equitable treatment among the respective series
or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section IV
purchase or otherwise acquire such shares at such
time and in such manner.
<PAGE>
V. Reacquired Shares
Any shares of Series B Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall
upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in
the Articles of Organization, in any other Certificate of Vote of Directors
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
VI. Liquidation, Dissolution or Winding Up
Upon any liquidation, dissolution or winding up of the Corporation,
no distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series B Preferred Stock unless, prior thereto, the holders of
shares of Series B Preferred Stock shall have received $100 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that the
holders of shares of Series B Preferred Stock shall be entitled to receive
an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series B Preferred
Stock, except distributions made ratably on the Series B Preferred Stock
and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
VII. Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any
other property, then in any such case each share of Series B Preferred
Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series B Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
VIII. Redemption
The shares of Series B Preferred Stock shall not be redeemable.
IX. Rank
The Series B Preferred Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's Preferred Stock.
X. Amendment
The Articles of Organization of the Corporation shall not be amended
in any manner which would materially alter or change the powers,
preferences or special rights of the Series B Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series B Preferred Stock,
voting together as a single series.
Terms of Series C Junior Participating Preferred Stock:
-------------------------------------------------------
I. Designation and Amount
The shares of such series shall be designated as "Series C Junior
Participating Preferred Stock" (the "Series C Preferred Stock") and the
number of shares constituting the Series C Preferred Stock shall be 70,000.
Such number of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce the number of
shares of Series C Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation convertible into Series
C Preferred Stock.
II. Dividends and Distributions
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series C Preferred Stock with respect to dividends, the holders of shares of
Series C Preferred Stock, in preference to the holders of Common Stock, par
value $1 per share (the "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds of the Corporation legally available for the
payment of dividends, quarterly dividends payable in cash on the first day of
March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series C Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject
to the provision for adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of Series C Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case
the amount to which holders of shares of Series C Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series C Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock) and the Corporation
shall pay such dividend or distribution on the Series C Preferred Stock
before the dividend or distribution declared on the Common Stock is paid or
set apart; provided that, in the event no dividend or distribution shall have
been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1 per share on the Series C Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series C Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of or is a date after the record date for the
determination of holders of shares of Series C Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series C
Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Director may fix a record date for the determination of holders of
shares of Series C Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
III. Voting Rights
The holders of shares of Series C Preferred Stock shall have the following
voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series C Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect
a subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to which
holders of shares of Series C Preferred Stock were entitled immediately prior
to such event shall be adjusted by multiplying such number of a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
<PAGE>
(B) Except as otherwise provided herein, by law, or in any other
Certificate of Vote of Directors creating a series of Preferred Stock or any
similar stock, the holders of shares of Series C Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series C Preferred Stock shall
be in arrears in an amount equal to six quarterly dividends thereon, the
holders of the Series C Preferred Stock, voting as a separate series from all
other series of Preferred Stock and classes of capital stock, shall be
entitled to elect two members of the Board of Directors in addition to any
Directors elected by any other series, class or classes of securities and the
authorized number of Directors will automatically be increased by two.
Promptly thereafter, the Board of Directors of this Corporation shall, as
soon as may be practicable, call a special meeting of holders of Series C
Preferred Stock for the purpose of electing such members of the Board of
Directors. Said special meeting shall in any event be held within 45 days of
the occurrence of such arrearage.
(ii) During any period when the holders of Series C Preferred Stock,
voting as a separate series, shall be entitled and shall have exercised their
right to elect two Directors, then and during such time as such right
continues (a) the then authorized number of Directors shall be increased by
two, and the holders of Series C Preferred Stock, voting as a separate
series, shall be entitled to elect the additional Directors so provided for,
and (b) each such additional Director shall not be a member of any existing
class of the Board of Directors, but shall serve until the next annual
meeting of stockholders for the election of Directors, or until his successor
shall be elected and shall qualify, or until his right to hold such office
terminates pursuant to the provisions of this Section III(C).
(iii) A Director elected pursuant to the terms hereof may be removed
with or without cause by the holders of Series C Preferred Stock entitled to
vote in an election of such Director.
(iv) If, during any interval between annual meetings of stockholders
for the election of Directors and while the holders of Series C Preferred
Stock shall be entitled to elect two Directors, there is no such Director in
office by reason of resignation, death or removal, then, promptly thereafter,
the Board of Directors shall call a special meeting of the holders of Series
C Preferred Stock for the purpose of filling such vacancy and such vacancy
shall be filled at such special meeting. Such special meeting shall in any
event be held within 45 days of the occurrence of such vacancy.
(v) At such time as the arrearage is fully cured, and all dividends
accumulated and unpaid on any shares of Series C Preferred Stock outstanding
are paid, and, in addition thereto, at least one regular dividend has been
paid subsequent to curing such arrearage, the term of office of any Director
elected pursuant to this Section III(C), or his successor, shall
automatically terminate, and the authorized number of Directors shall
automatically decrease by two, the rights of the holders of the shares of the
Series C Preferred Stock to vote as provided in this Section III(C) shall
cease, subject to renewal from time to time upon the same terms and
conditions, and the holders of shares of the Series C Preferred Stock shall
have only the limited voting rights elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise provided by law,
holders of Series C Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
<PAGE>
IV. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series C Preferred Stock as provided in Section II are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series C Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(I) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series C Preferred Stock,
except dividends paid ratably on the Series C Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series C Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series C Preferred Stock, or any shares of stock ranking on a
parity with the Series C Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section
IV, purchase or otherwise acquire such shares at such time and in such
manner.
V. Reacquired Shares
Any shares of Series C Preferred Stock purchased or otherwise acquired
by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and may
be reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the Articles of
Organization, in any other Certificate of Vote of Directors creating a series
of Preferred Stock or any similar stock or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
(A) Upon any liquidation, dissolution or winding up of the Corporation,
no distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series C Preferred Stock unless, prior thereto, the holders of
shares of Series C Preferred Stock shall have received $1,000 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that the
holders of shares of Series C Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series C Preferred
Stock, except distributions made ratably on the Series C Preferred Stock and
all such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or winding
up.
(B) Neither the consolidation, merger or other business combination of
the Corporation with or into any other corporation nor the sale, lease,
exchange or conveyance of all or any part of the property, assets or business
of the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation for purposes of this Section VI.
(C) In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a divided
in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of
shares of Series C Preferred Stock were entitled immediately prior to such
event under the proviso in clause (1) of paragraph (A) of this Section VI
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
VII. Consolidation, Merger, etc.
Notwithstanding anything to the contrary contained herein, in case the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, then in any
such case each share of Series C Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of shares of
Series C Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
VIII. Redemption
The shares of Series C Preferred Stock shall not be redeemable.
<PAGE>
IX. Rank
The Series C Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, on a parity with the Series B
Junior Participating Preferred Stock of the Corporation and junior to all
series of any other class of the Corporation's Preferred Stock issued either
before or after the issuance of the Series C Preferred Stock, unless the
terms of any such series shall provide otherwise.
X. Amendment
The Articles of Organization of the Corporation shall not be amended in
any manner which would materially alter or change the powers, preference or
special rights of the Series C Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series C Preferred Stock, voting together as a single
series.
XI. Fractional Shares
Series C Preferred Stock may be issued in fractions of a share which
are integral multiples of one-thousandth of a share which shall entitle the
holder, in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and have the benefit
of all other rights of holders of Series C Preferred Stock.
B. Common Stock. After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the provisions of
paragraph A of this Article 4) shall have been met and after the corporation
shall have complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of paragraph A of this Article 4),
then and not otherwise the holders of Common Stock shall be entitled to
receive such dividends as may be declared from time to time by the Board of
Directors.
After distribution in full of the preferential amount (fixed in
accordance with the provisions of paragraph A of this Article 4) to be
distributed to the holders of Preferred Stock in the event of voluntary and
involuntary liquidation, distribution or sale of assets, dissolution or
winding up of this corporation, the holders of the Common Stock shall be
entitled to receive all the remaining assets of this corporation, tangible
and intangible, of whatever kind available for distribution to the
stockholders ratably in proportion to the number of shares of Common Stock
held by them respectively.
Except as may otherwise be required by law or the provisions of these
Articles, or by the Board of Directors pursuant to authority granted in these
Articles, each holder of Common Stock shall have one vote in respect of each
share of stock held by him in all matters voted upon by the stockholders.
No holder of shares of the Common Stock shall be entitled as such, as
a matter of right, to subscribe for or purchase any part of any new or
additional issue of stock of any class whatsoever of the corporation, or of
securities authorized, or whether issued for cash or other consideration or
by way of dividend.
<PAGE>
Article V
---------
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None
<PAGE>
Article VI
----------
Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or
for limiting, defining, or regulating the powers of the corporation, or of
its directors or stockholders, or of any class of stockholders:
Meetings of Stockholders may be held within the Commonwealth of Massachusetts
or elsewhere in the United States of America to the extent permitted by the
By-laws of the Corporation.
The Directors may make, amend, or repeal the By-Laws of the Corporation in
whole or in part at any meeting of the Directors by vote of a majority of the
Directors then in office, except that the provisions thereof fixing the place
of the meetings of Stockholders, designating the number necessary to
constitute a quorum at meetings of the Stockholders, governing procedure with
respect to the removal of Directors, and affording indemnification to
Directors or officers may be made, amended, or repealed only by the
Stockholders.
The number of Directors which shall constitute the whole Board of Directors
shall be such number, not less than three nor more than thirteen, as shall be
fixed by vote of the stockholders or the Board of Directors. During the time
periods specified in this Article 6, the Board of Directors shall be divided
into three classes in respect of term of office, each class to contain, as
nearly as possible, one-third of the whole number of the Board. Of the Board
of Directors elected at the Annual Meeting of Stockholders in 1975, the
members of one class shall serve until the Annual Meeting of Stockholders
held in the year following their election, the members of the second class
shall serve until the Annual Meeting of Stockholders held two years following
their election, and the members of the third class shall serve until the
Annual Meeting of Stockholders held three years following their election;
provided, however, that in each case Directors shall serve until their
successors shall be elected and qualified. At each Annual Meeting of
Stockholders, commencing with the Annual Meeting in 1976 through and
including the Annual Meeting in 1995, the successors of the Directors of the
class whose terms expire in that year shall be elected to serve until the
Annual Meeting of Stockholders held three years next following (and until
their successors shall be duly elected and qualified), so that the term of
one class of Directors shall expire in each year. At each Annual Meeting of
Stockholders, commencing with the Annual Meeting in 1996, the successors of
the Directors whose terms expire in that year shall be elected to serve until
the Annual Meeting of Stockholders held in the following year (and until
their successors shall be duly elected and qualified), so that, upon the
expiration in 1998 of the terms of the Directors elected at the Annual
Meeting in 1995, all Directors shall be elected to hold office for a one-year
term. A vacancy in the Board of Directors, however occurring, unless and
until filled by the stockholders, may be filled by the Directors. The number
of the Board of Directors may be increased or decreased and one or more
additional Directors elected at any special meeting of the stockholders or by
a vote of the Directors then in office. For so long as the Directors are
divided into classes in accordance with the terms of this Article 6,
Directors who are elected to fill vacancies, whether or not created by an
enlargement of the Board, shall be apportioned among the classes so as to
make all classes as nearly equal in number as possible. Directors who are
elected to fill vacancies, whether or not created by an enlargement of the
Board, shall serve until the expiration of the term of his or her predecessor
and until his or her successor is duly elected and qualified. No decrease in
the number of the Board of Directors shall shorten the term of any incumbent
Directors.
<PAGE>
A Director may be removed from office (a) with or without cause, by vote of
two-thirds of the stock outstanding and entitled to vote in the election of
Directors, provided that the Directors of a class elected by a particular
class of stockholders may be removed only by the vote of two-thirds of the
shares of such class which are outstanding and entitled to vote or (b) for
cause by vote of a majority of the Directors then in office. A Director may
be removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
To the fullest extent permitted by Chapter 156B of the Massachusetts General
Laws, as it exists or may be amended, a Director of this Corporation shall
not be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, notwithstanding any
provision of law imposing such liability.
<PAGE>
Article VII
-----------
The effective date of the restated Articles of Organization of the
corporation shall be the date approved and filed by the Secretary of the
Commonwealth. If a later effective date is desired, specify such date which
shall not be more than thirty days after the date of filing.
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. Briefly
describe amendments below:
None
<PAGE>
SIGNED UNDER THE PENALTIES OF PERJURY,
this 28th day of July, 1995.
/s/ John M. Kucharski
---------------------
John M. Kucharski, President
/s/ Murray Gross
-------------------
Murray Gross, Clerk
<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 $200.00 having been paid,
said articles are deemed to have been filed with me this 31st day
of July, 1995.
Effective Date: ______________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Murray Gross, Clerk
EG&G, Inc.
45 William Street
Wellesley, MA 02181
Telephone: (617) 431-4135
</TABLE>
EXHIBIT 4 (ii)
EG&G, INC. BY-LAWS
As of May 3, 1995
ARTICLE I.
Stockholders.
1. Place of Meetings. All meetings of stockholders shall be held
within Massachusetts unless the Articles of Organization permit the holding
of stockholder meetings outside Massachusetts, in which event such meetings
may be held either within or without Massachusetts. Meetings of
stockholders shall be held at the principal office of the corporation
unless a different place is fixed by the Directors or the Chairman of the
Board and stated in the notice of the meeting. (Amended by Directors
4/20/78 and 3/23/83)
2. Annual Meetings. The annual meeting of stockholders shall be
held on the fourth Tuesday of April in each year (or if that be a legal
holiday in the place where the meeting is to be held, on the next
succeeding full business day) at 10:30 o'clock A.M., unless a different
hour is fixed by the Directors or the Chairman of the Board and stated in
the notice of the meeting. The purposes for which the annual meeting is to
be held, in addition to those prescribed by law, by the Articles of
Organization or by these By-Laws, may be specified by the Directors or the
Chairman of the Board. If no annual meeting is held in accordance with the
foregoing provisions, a special meeting may be held in lieu thereof and any
action taken at such meeting shall have the same effect as if taken at the
annual meeting. (Amended by Directors, 4/20/78; Amended by Stockholders,
4/21/83)
3. Special Meetings. Special meetings of stockholders may be
called by the President or by the Directors. In addition, upon written
application of one or more stockholders who are entitled to vote and who
hold at least the Required Percentage (as defined below) of the capital
stock entitled to vote at the meeting (the "Voting Stock"), special
meetings shall be called by the Clerk, or in case of the death, absence,
incapacity or refusal of the Clerk, by any other officer. For purposes of
this Section 3, the "Required Percentage" shall be 40% or such lesser
percentage as shall constitute the maximum percentage permitted by law for
this purpose. Any request for a call of special meeting of stockholders (a
"Call") by the holders of the Required Percentage of the Voting Stock shall
be governed by and subject to the following:
(a) Any stockholder of record seeking to solicit requests for
a Call pursuant to this Section 3 shall so notify the corporation in
writing to the Clerk of the corporation, and such written notification
shall set forth the reason or reasons for the Call and the purpose or
purposes of such special meeting.
(b) No solicitation of stockholder requests for a Call (a
"Call Solicitation") may be commenced (I) before the Call Request Record
Date, as defined in paragraph (c) of this Section 3, or (ii) during the
period of 90 days following the most recent meeting of the stockholders of
the corporation.
<PAGE>
(c) In order that the corporation may determine the
stockholders entitled to request a Call, the Board of Directors of the
corporation shall fix a record date (the "Call Request Record Date"). Any
stockholder of record seeking to solicit stockholder requests for a Call
shall, with delivery to the corporation of the written information
specified in paragraph (a), request in writing that the Board of Directors
fix the Call Request Record Date. The Board of Directors shall, within 10
days after the date on which such request is received, adopt a resolution
fixing the Call Request Record Date, and such Call Request Record Date
shall be not more than 10 days after the date upon which such resolution is
adopted by the Board of Directors.
(d) All requests for a Call and revocations thereof shall be
delivered to the corporation no later than the 30th day (the "Delivery
Date") after the Call Request Record Date.
(e) Any stockholder may revoke a prior request for a Call or
opposition to a Call by an instrument in writing delivered prior to the
Delivery Date.
(f) Promptly after the Delivery Date, requests for a Call and
revocations thereof shall be counted and verified by an independent party
selected by the corporation.
(g) If, in response to any Call Solicitation, the holders of
record of the Required Percentage of the Voting Stock as of the Call
Request Record Date submit valid and unrevoked requests for a Call no later
than the Delivery Date, the Board of Directors of the corporation shall fix
a record date and a meeting date for the special meeting, provided that the
date to be fixed for such meeting shall be no earlier than 60 days or later
than 90 days after the Delivery Date, and provided further that the Board
of Directors shall not be obligated to fix a meeting date or to hold any
meeting of stockholders within 60 days of the next scheduled meeting of the
stockholders of the corporation.
(h) In the absence of a quorum at any special meeting called
pursuant to a Call Solicitation, such special meeting may be postponed or
adjourned from time to time only by the officer of the corporation entitled
to preside at such meeting.
(i) If a Call Solicitation does not receive the support of
the holders of record of the Required Percentage of the Voting Stock, no
subsequent Call may be made or solicited by any stockholder during a period
of 90 days after the Delivery Date. (Amended by Directors, 4/20/78, 3/23/83,
4/24/90 and 4/23/91)
4. Notice of Meetings. A written notice of every meeting of
stockholders, stating the place, date and hour thereof, and the purposes
for which the meeting is to be held, shall be given by the Clerk or other
person calling the meeting at least seven days before the meeting to each
stockholder entitled to vote thereat and to each stockholder who, by law,
by the Articles of Organization or by these By-Laws, is entitled to such
notice, by leaving such notice with him or at his residence or usual place
of business, or by mailing it postage prepaid and addressed to him at his
address as it appears upon the books of the corporation. Whenever any
notice is required to be given to a stockholder by law, by the Articles of
Organization or by these By-Laws, no such notice need be given if a written
waiver of notice, executed before or after the meeting by the stockholder
or his attorney thereunto duly authorized, is filed with the records of the
meeting.
<PAGE>
5. Quorum. Unless the Articles of Organization otherwise provide,
a majority in interest of all stock issued, outstanding and entitled to
vote on any matter shall constitute a quorum with respect to that matter,
except that if two or more classes of stock are outstanding and entitled to
vote as separate classes, then in the case of each such class a quorum
shall consist of a majority in interest of the stock of that class issued,
outstanding and entitled to vote.
6. Adjournments. Except as provided in Section 3 of this Article
I, any meeting of stockholders may be adjourned to any other time and to
any other place at which a meeting of stockholders may be held under these
By-Laws by the stockholders present or represented at the meeting, although
less than a quorum, or by any officer entitled to preside or to act as
clerk of such meeting, if no stockholder is present. It shall not be
necessary to notify any stockholder of any adjournment. Any business which
could have been transacted at any meeting of the stockholders as originally
called may be transacted at any adjournment thereof. (Amended by Directors,
4/24/90)
7. Voting and Proxies. Each stockholder shall have one vote for
each share of stock entitled to vote held by him of record according to the
records of the corporation and a proportionate vote for a fractional share
so held by him, unless otherwise provided by the Articles of Organization.
Stockholders may vote either in person or by written proxy dated not more
than six months before the meeting named therein. Proxies shall be filed
with the clerk of the meeting, or of any adjournment thereof, before being
voted. Except as otherwise limited therein, proxies shall entitle the
persons named therein to vote at any adjournment of such meeting, but
shall not be valid after 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 one of them, unless at or prior to exercise of the proxy the
corporation receives a specific written notice to the contrary from any one
of them. A proxy purported to be executed by or on behalf of a stockholder
shall be deemed valid unless challenged at or prior to its exercise.
8. Action at Meeting. When a quorum is present, the vote of a
majority of the stock present or represented and voting on a matter (or if
there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, the vote of a majority of the
stock of that class present or represented and voting on a matter), except
where a larger vote is required by law, the Articles of Organization or
these By-Laws, shall decide any matter to be voted on by the stockholders.
Any election by stockholders shall be determined by a plurality of the
votes cast by the stockholders entitled to vote at the election. No ballot
shall be required for such election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
The Corporation shall not directly or indirectly vote any share of its
stock. Nothing in this Section shall be construed as limiting the right of
this Corporation to vote shares of stock held directly or indirectly by it
in a fiduciary capacity. In the event that a vote of stockholders of this
Corporation is required to approve an agreement to consolidate this
Corporation with another corporation to form a new corporation, or to merge
this Corporation into another corporation, or to merge or consolidate
another corporation into this Corporation, the vote of two-thirds of each
class of stock of this Corporation outstanding and entitled to vote on the
question, voting separately, shall be necessary for the approval of such
agreement. (Amended by Directors, 5/24/89)
9. Action without Meeting. Any action to be taken by stockholders
may be taken without a meeting if all stockholders entitled to vote on the
matter consent to the action by a writing filed with the records of the
meetings of stockholders. Such consent shall be treated for all purposes
as a vote at a meeting.
<PAGE>
ARTICLE II.
Directors.
1. Powers. The business of the corporation shall be managed by a
Board of Directors who may exercise all the powers of the corporation
except as otherwise provided by law, by the Articles of Organization or by
these By-Laws. In the event of a vacancy in the Board of Directors, the
remaining Directors, except as otherwise provided by law, may exercise the
powers of the full Board until the vacancy is filled.
2. Number and Election. The number of Directors which shall
constitute the whole Board of Directors shall be such number, not less than
three nor more than thirteen, as shall be fixed by vote of the stockholders
or the Board of Directors. During the time periods specified in this
Section 2, the Board of Directors shall be divided into three classes in
respect of term of office, each class to contain, as nearly as possible,
one-third of the whole number of the Board. Of the Board of Directors
elected at the Annual Meeting of Stockholders in 1975, the members of one
class shall serve until the Annual Meeting of Stockholders held two years
following their election, and the members of the third class shall serve
until the Annual Meeting of Stockholders held three years following their
election; provided, however, that in each case Directors shall serve until
their successors shall be elected and qualified. At each Annual Meeting of
Stockholders, commencing with the Annual Meeting in 1976 through and
including the Annual Meeting in 1995, the successors of the Directors of
the class whose terms expire in that year shall be elected to serve until
the Annual Meeting of Stockholders held three years next following (and
until their successors shall be duly elected and qualified), so that the
term of one class of Directors shall expire in each year. At each Annual
Meeting of Stockholders, commencing with the Annual Meeting in 1996, the
successors of the Directors whose terms expire in that year shall be
elected to serve until the Annual Meeting of Stockholders held in the
following year (and until their successors shall be duly elected and
qualified), so that, upon the expiration in 1998 of the terms of the
Directors elected at the Annual Meeting in 1995, all Directors shall be
elected to hold office for a one-year term (and until their successors
shall be duly elected and qualified). (Amended by Directors, 5/16/74 and
1/25/95)
3. Vacancies. A vacancy in the Board of Directors, however
occurring, unless and until filled by the stockholders, may be filled by
the Directors. (Amended by Directors, 5/16/74 and 1/25/95)
4. Change in Number of the Board. The number of the Board of
Directors may be increased or decreased and one or more additional
Directors elected at any special meeting of the stockholders or by a vote
of a majority of the Directors then in office. For so long as the
Directors are divided into classes in accordance with the terms of Section
2 of this Article II, Directors who are elected to fill vacancies, whether
or not created by an enlargement of the Board, shall be apportioned among
the classes so as to make all classes as nearly equal in number as
possible. Directors who are elected to fill vacancies, whether or not
created by an enlargement of the Board, shall serve until the expiration of
the term of his or her predecessor and until his or her successor is duly
elected and qualified. No decrease in the number of the Board of
Directors shall shorten the term of any incumbent Directors. (Amended by
Directors, 5/16/74 and 1/25/95)
<PAGE>
5. Resignation and Retirement. Any Director may resign by
delivering his written resignation to the corporation at its principal
office or to the Chairman of the Board, the President, Clerk or Secretary.
Such resignation shall be effective upon receipt unless it is specified to
be effective at some other time or upon the happening of some event. A
Director who shall have served as a member of the Board of Directors during
the year 1973 shall be deemed to have retired at the conclusion of the
calendar quarter in which he shall have attained the age of seventy-two;
any Director not so having served shall be deemed to have retired at the
conclusion of the calendar quarter in which he shall have attained the age
of seventy. (Amended by Directors, 5/16/74 and 4/20/78)
6. Removal. A Director may be removed from office (a) with or
without cause by a vote of two-thirds of the stock outstanding and entitled
to vote in the election of Directors, provided that the Directors of a
class elected by a particular class of stockholders may be removed only by
the vote of two-thirds of the shares of such class which are outstanding
and entitled to vote or (b) for cause by vote of a majority of the
Directors then in office. A Director may be removed for cause only after
reasonable notice and opportunity to be heard before the body proposing to
remove him. (Amended by Stockholders, 4/16/74)
7. Meetings. Regular meetings of the Directors may be held
without call or notice at such places, within or without Massachusetts, and
at such times as the Directors may from time to time determine, provided
that any Director who is absent when such determination is made shall be
given notice of the determination. A regular meeting of the Directors may
be held without a call or notice at the same place as the annual meeting of
stockholders, or the special meeting held in lieu thereof, following such
meeting of stockholders.
Special meetings of the Directors may be held at any time and
place, within or without Massachusetts, designated in a call by the
Chairman of the Board, the President, Treasurer or two or more Directors.
(Amended by Directors, 4/20/78 and 3/23/83)
8. Notice of Special Meetings. Notice of all special meetings of
the Directors shall be given to each Director by the Secretary, or if there
be no Secretary, by the Clerk, or Assistant Clerk, or in case of the death,
absence, incapacity or refusal of such persons, by the officer or one of
the Directors calling the meeting. Notice shall be given to each Director
in person or by telephone or by telegram sent to his business or home
address at least forty-eight hours in advance of the meeting, or by written
notice mailed to his business or home address at least seventy-two hours in
advance of the meeting. Notice 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 of a Directors' meeting need
not specify the purposes of the meeting.
9. Quorum. At any meeting of the Directors, a majority of the
Directors then in office shall constitute a quorum. Less than a quorum may
adjourn any meeting from time to time without further notice.
10. Action at Meeting. At any meeting of the Directors at which a
quorum is present, the vote of a majority of those present, unless a
different vote is specified by law, by the Articles of Organization or by
these By-Laws, shall be sufficient to take any action.
11. Action by Consent. Any action by the Directors may be taken
without a meeting if a written consent thereto is signed by all the
Directors and filed with the records of the Directors' meetings. Such
consent shall be treated as a vote of the Directors for all purposes.
<PAGE>
12. Committees. The Directors may, by vote of a majority of the
Directors then in office, elect from their number an executive committee or
other committees and may by like vote delegate thereto some or all of their
powers except those which by law, the Articles of Organization or these
By-Laws they are prohibited from delegating. Except as the Directors may
otherwise determine, any such committee may make rules for the conduct of
its business, but unless otherwise provided by the Directors or in such
rules, its business shall be conducted as nearly as may be in the same
manner as is provided by these By-Laws for the Directors.
ARTICLE III.
Officers.
1. Enumeration. The officers of the corporation shall consist of
a Chairman of the Board, President, one or more Vice Presidents, a
Treasurer, a Clerk and such other officers as the Directors may determine.
Such other officers may include, without limiting the foregoing, a
Controller and a Secretary or one or more Assistant Vice Presidents,
Assistant Controllers, Assistant Treasurers, Assistant Clerks and Assistant
Secretaries. (Amended by Directors, 3/25/81 and 3/23/83)
2. Election. The Chairman of the Board, President, Treasurer and
Clerk shall be elected annually by the Directors at their first meeting
following the annual meeting of stockholders. Other officers may be
appointed by the Directors at such meeting or at any other meeting. The
Chief Executive Officer shall also have the power to appoint Assistant Vice
Presidents, Assistant Treasurers, Assistant Controllers, Assistant Clerks
and Assistant Secretaries. (Amended by Directors, 3/25/81 and 3/23/83)
3. Qualification. The Chairman of the Board and the President
shall be Directors. No officer need be a stockholder. Any two or more
officers may be held by the same person, provided that the Chairman of the
Board and Clerk shall not be the same person, nor shall the President and
Clerk be the same person. The Clerk shall be a resident of Massachusetts
unless the corporation has a resident agent appointed for the purpose of
service of process. Any officer may be required by the Directors to give
bond for the faithful performance of his duties to the corporation in such
amount and with such sureties as the Directors may determine. (Amended by
Directors, 4/20/78 and 3/23/83)
4. Tenure. Except as otherwise provided by law, by the Articles
of Organization or by these By-Laws, the Chairman of the Board, President,
Treasurer and Clerk shall hold office until the first meeting of the
Directors following the annual meeting of stockholders and thereafter until
his successor is chose and qualified; and all other officers appointed by
the Directors or by the Chief Executive Officer shall hold office until the
first meeting of the Directors following the annual meeting of
stockholders, unless a different term is specified in choosing or
appointing them. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the Chairman
of the Board, President, Clerk or Secretary, and such resignation shall be
effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event. (Amended by Directors,
3/25/81 and 3/23/83)
5. Removal. The Directors may remove any officer with or without
cause by a vote or a majority of the entire number of Directors then in
office, provided, that an officer may be removed for cause only after
reasonable notice and opportunity to be heard by the Board of Directors
prior to action thereon.
<PAGE>
6. Chairman of the Board. The Directors shall appoint a Chairman
of the Board. When present he shall preside at all meetings of the
Directors and stockholders and shall have such other powers and duties as
are usually vested in the office of Chairman of the Board as well as such
other powers and duties as may be vested in him by the Board of Directors.
(Amended by Directors, 4/20/78 and 3/23/83)
7. President. The President shall have general supervision and
control of all or a substantial portion of the operations of the business,
as well as such other power and duties as may be vested in the President by
the Board of Directors, or the Chief Executive Officer if other than the
President. In the absence of the Chairman of the Board, the President
shall preside, when present, at all meetings of the Directors and
stockholders. In the absence or disability of the Chief Executive Officer,
if other than the President, the President shall perform the duties and
exercise the powers of the Chief Executive Officer. (Amended by Directors,
4/20/78, 3/23/83 and 4/25/89)
8. Chief Executive Officer. The Board of Directors, shall
appoint, as the Chief Executive Officer of the Company, the President, the
Chairman of the Board, or any other officer of the corporation as the Board
of Directors may deem appropriate. The Chief Executive Officer shall have
the ultimate supervision and control of the operations of the business.
(Amended by Directors, 3/23/83)
9. Vice President and Assistant Vice President. Unless otherwise
specified by the Board of Directors, the Vice President, or if there shall
be more than one, the Vice Presidents in the order determined by the
Directors, shall, in the absence or disability of the President, perform
the duties and exercise the powers of the President and shall perform such
other duties and shall have such other powers as the Directors or the Chief
Executive Officer may from time to time prescribe. (Amended by Directors,
3/25/81, 3/23/83 and 11/28/84)
An Assistant Vice President shall have such duties and powers
as the Directors, the Chief Executive Officer may from time to time
prescribe. (Amended by Directors, 3/25/81 and 3/23/83)
10. Financial Officers. In addition to the election of a
Treasurer, the Directors may appoint one or more additional financial
officers. The Directors may designate one of the officers as the chief
financial officer who, subject to the direction of the Directors and the
Chief Executive Officer, shall have overall supervision and control of the
internal and external financial affairs of the corporation including
financial reporting, and the management of the assets of the corporation as
well as such other powers and duties as may be vested in him by the
Directors or the Chief Executive Officer. He shall have responsibility,
custody and control of all funds, securities and valuable documents of the
corporation except as the Directors may otherwise provide. (Amended by
Directors, 3/23/83)
The Treasurer shall, subject to the direction of the Directors,
the Chief Executive Officer and the chief financial officer, if there be
one, have general charge of managing the assets of the corporation. He
shall perform such other duties as may be vested in him by the Directors,
the Chief Executive Officer, or the chief financial officer. In the event
the Directors have not designated a chief financial officer, or, if one is
designated, in his absence or disability, the Treasurer shall have custody
of all funds, securities and valuable documents of the corporation except
as the Directors may otherwise provide. (Amended by Directors, 3/23/83)
<PAGE>
The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Directors, shall in
the absence or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties and shall
have such other powers as the Directors may from time to time prescribe.
(Amended by Directors, 3/25/81)
The Assistant Controller, or if there shall be more than one,
the Assistant Controllers in the order determined by the Directors, shall,
in the absence or disability of the Controller, perform the duties and
exercise the powers of the Controller and shall perform such other duties
and shall have such other powers as the Directors may from time to time
prescribe. (Amended by Directors, 3/25/81)
11. Clerk and Assistant Clerks. The Clerk shall keep a record of
the meetings of stockholders. Unless a Transfer Agent is appointed, the
clerk shall keep or cause to be kept in Massachusetts, at the principal
office of the corporation or at his office, the stock and transfer records
of the corporation, in which are contained the names of all stockholders
and the record address, and the amount of stock held by each.
If there is no Secretary or Assistant Secretary, the Clerk
shall keep the record of the meetings of the Directors.
The Assistant Clerk, or if there shall be more than one, the
Assistant Clerks in the order determined by the Directors, shall, in the
absence or disability of the Clerk, perform the duties and exercise the
powers of the Clerk and shall perform such other duties and shall have such
other powers as the Directors may from time to time prescribe.
12. Secretary and Assistant Secretaries. If a Secretary is
appointed, he shall attend all meetings of the Directors and shall keep a
record of the meetings of the Directors. He shall, when required, notify
the Directors of their meetings, and shall have such other powers and shall
perform such other duties as the Directors may from time to time prescribe.
The Assistant Secretary, or if there shall be more than one,
the Assistant Secretaries in the order determined by the Directors, shall
in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other duties
and shall have such other powers as the Directors may from time to time
prescribe.
13. Other Powers and Duties. Each officer shall, subject to these
By-Laws, have in addition to the duties and powers specifically set forth
in these By-Laws, such duties and powers as are customarily incident to his
office, and such duties and powers as the Directors may from time to time
designate.
ARTICLE IV.
Capital Stock.
1. Certificates of Stock. Each stockholder shall be entitled to a
certificate of the capital stock of the corporation in such form as may be
prescribed from time to time by the Directors. The certificate shall be
signed by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer or any Assistant Treasurer, but when a
certificate is countersigned by a transfer agent or a registrar, other than
a Director, officer of employee of the corporation, such signatures may be
facsimiles. In case any officer who has signed or whose 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. (Amended by Directors, 4/20/78 and 1/22/92)<PAGE>
Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Articles of Organization, the
By-Laws or any agreement to which the corporation is a party, shall have
conspicuously noted on the face or back of the certificate either the full
text of the restriction or a statement of the existence of such
restrictions and a statement that the corporation will furnish a copy
thereof to the holder of such certificate upon written request and without
charge. Every certificate issued when the corporation is authorized to
issue more than one class or series of stock shall set forth on its face or
back either the full text of the preferences, voting powers, qualifications
and special and relative rights of the shares of each class and series
authorized to be issued 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.
2. Transfers. Subject to the restrictions, if any, stated or
noted on the stock certificates, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation or its
transfer agent of the certificate therefor properly endorsed or accompanied
by a written assignment and power of attorney properly executed, with
necessary transfer stamps affixed, and with such proof of the authenticity
of signature as the corporation or its transfer agent may reasonably
require. Except as may be otherwise required by law, by the Articles of
Organization or by these By-Laws, 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 and of his taxpayer identification
number.
3. Record Date. The Directors may fix in advance a time not more
than sixty days preceding 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.
In such case only stockholders of record on such record date shall have
such right, notwithstanding any transfer of stock on the books of the
corporation after the record date. 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.
4. Replacement of Certificates. In case of the alleged loss or
destruction or the mutilation of a certificate of stock, a duplicate
certificate may be issued in place thereof, upon such terms as the
Directors may prescribe, including the presentation of reasonable evidence
of such loss, destruction or mutilation and the giving of such indemnity as
the Directors may require for the protection of the corporation or any
transfer agent or registrar.
5. Issue of Capital Stock. Unless otherwise voted by the
stockholders, the whole or any part of any unissued balance of the
authorized capital stock of the corporation or the whole or any part of the
capital stock of the corporation held in its treasury may be issued or
disposed of by vote of the Directors, in such manner, for such
consideration and on such terms as the Directors may determine.
<PAGE>
ARTICLE V
Miscellaneous Provisions.
1. Fiscal Year. The fiscal year of the corporation shall end on
the 31st day of December in each year in which such date falls on Sunday,
or the Sunday next preceding or following the 31st day of December in each
year, which ever Sunday is nearest to such 31st day of December.
2. Seal. The seal of the corporation shall, subject to alteration
by the Directors, bear its name, the word "Massachusetts", and the year of
its incorporation.
3. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other obligations authorized to be executed by
an officer of the corporation in its behalf shall be signed by the Chairman
of the Board and Chief Executive Officer or the Treasurer except as the
Directors may generally or in particular cases otherwise determine.
(Amended by Directors, 4/20/78)
4. Voting of Securities. Except as the Directors may otherwise
designate, the Chairman of the Board, the President the chief financial
officer, Treasurer or clerk may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for, this
corporation (with or without power of substitution) at any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation. (Amended by
Directors, 4/20/78)
5. Corporate Records. The original, or attested copies, of the
Articles of Organization, By-Laws and records of all meetings of the
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 at the
principal office of the corporation, or at an office of its transfer agent
or of the Clerk. Said copies and records need not all be kept in the same
office. They shall be available at all reasonable times to the inspection
of any stockholder for any proper purpose, but not to secure a list of
stockholders for the purpose of selling said list or copies thereof or of
using the same for a purpose other than in the interest of the applicant,
as a stockholder, relative to the affairs of the corporation.
6. Evidence of Authority. A certificate by the Clerk or
Secretary, or an Assistant Clerk or Assistant Secretary, or a temporary
Clerk or temporary Secretary, as to any action taken by the stockholders,
Directors, Executive Committee or any officer or representative of the
corporation shall as to all persons who rely thereon in good faith be
conclusive evidence of such action.
7. Articles of Organization. All references in these By-Laws to
the Articles of Organization shall be deemed to refer to the Articles of
Organization of the corporation, as amended and in effect from time to
time.
8. Transactions with Interested Parties. In the absence of fraud,
no contract or other transaction between this corporation and any other
corporation or any firm, association, partnership or person shall be
affected or invalidated by the fact that any Director or officer of this
corporation is pecuniarily or otherwise interested in or is a director,
member or officer of such other corporation or of such firm, association or
partnership or is a party to or is pecuniarily or otherwise interested in
such contract or other transaction or is in any way connected with any
person or persons, firm, association, partnership or corporation
pecuniarily or otherwise interested therein; provided that the fact that he<PAGE>
individually or as a director, member or officer of such corporation, firm,
association or partnership is such a party or is so interested shall be
disclosed to or shall have been known by the Board of Directors or a
majority of the Board of Directors at which action upon any such contract
or transaction shall be taken; any Director may be counted in determining
the existence of a quorum and may vote at any meeting of the Board of
Directors of this corporation for the purpose of authorizing any such
contract or transaction with like force and effect as if he were not so
interested, or were not a director, member or officer of such other
corporation, firm, association or partnership, provided that any vote with
respect to such contract or transaction must be adopted by a majority of
the Directors then in office who have no interest in such contract or
transaction.
9. Indemnification. The corporation shall indemnify and hold
harmless each person, who is or shall have been an officer or Director of
the corporation, from and against any and all claims, liabilities and
expenses to which he may be or become subject by reason of his being or
having been an officer or a Director of the corporation or by reason of his
alleged acts or omissions as an officer or Director of the corporation, and
shall indemnify and reimburse each such officer and Director against and
for any and all legal and other expenses reasonably incurred by him in
connection with any such claims and liabilities, actual or threatened,
whether or not at or prior to the time when so indemnified, held harmless
and reimbursed, he has ceased to be an officer or a Director of the
corporation.
The corporation shall similarly indemnify and hold harmless persons
who serve and shall have served at its request as directors or officers of
another organization in which the corporation directly or indirectly owns
shares or of which it is a creditor.
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.
No indemnification shall be provided for any person with respect to
any matter as to which such person shall have been finally 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; nor shall
indemnification be provided where the corporation is required or has
undertaken to submit to a court of appropriate jurisdiction the question of
whether or not indemnification by it is against public policy and it has
been finally adjudicated that such indemnification is against public
policy; provided, however, that, prior to such final adjudication, the
corporation may compromise and settle any such claims and liabilities and
pay such expenses, if such settlement or payment, or both, appears, in the
judgment of a majority of those members of the Board of Directors who are
not directly involved in such matters, to be for the best interest of the
corporation as evidenced by a resolution to that effect adopted after
receipt by the corporation of a written opinion of counsel for the
corporation that, based on the facts available to such counsel, such person
has not acted in a manner that would prohibit indemnification.
The foregoing right of indemnification shall not be exclusive of any
other rights to which any such person is entitled under any agreement, vote
of stockholders, statute, or as a matter of law, or otherwise. The
provisions of this section are separable, and if any provision or portion
hereof shall for any reason be held inapplicable, illegal or ineffective,
this shall not affect any other right of indemnification existing under
this section. As used herein, the term "Person" includes his heirs,
executors, administrators or other legal representatives."<PAGE>
10. Amendments. The stockholders may by a vote of two-thirds of
the stock of the corporation, outstanding and entitled to vote, make, amend
or repeal the By-Laws of the corporation in whole or in part at any meeting
of the stockholders provided that notice of the substance of the proposed
action is stated in the notice of meeting. The Directors may make, amend
or repeal the By-Laws of the corporation in whole or in part at any meeting
of the Directors by vote of a majority of the Directors then in office,
except that the provisions thereof fixing the place of the meetings of
stockholders, fixing the date of the annual meeting of stockholders,
designating the number necessary to constitute a quorum at meetings of the
stockholders, governing procedure with respect to the removal of Directors,
affording indemnification to Directors or officers and governing amendment
of these By-Laws, may be made, amended, or repealed only by the
stockholders. No change in the date of the annual meeting may be made
within sixty days before the date fixed in these By-Laws, and in case of
any change of such date, notice thereof shall be given to each stockholder
in person or by letter mailed to his last known post office address at
least twenty days before the new date fixed for such meeting.
11. 1987 Massachusetts Control Share Acquisition Act. The 1987
Massachusetts Control Share Acquisition Act, Chapter 110D of the
Massachusetts General Laws, as it may be amended from time to time, shall
not apply to the corporation. (Amended by Directors, 9/23/87 and 1/25/95)
EXHIBIT V
September 21, 1995
EG&G, Inc.
45 William Street
Wellesley, MA 02181
Gentlemen:
I have been requested to furnish you my opinion as to certain matters
in connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement"), which Registration Statement is to be filed with
the Securities and Exchange Commission on or about September 14, 1995,
relating to the registration of 847,542 shares of the Common Stock, $1 Par
Value, of EG&G, Inc. (the "Company"), issuable upon the exercise of stock
options granted and to be granted pursuant to the stock option plans
described in the Registration Statement.
I have been associated with the Company for 24 years, and during that
time I have served as an Attorney, Assistant General Counsel, and since
April 24, 1990, as General Counsel of EG&G, Inc. I have examined the
Restated Articles of Organization of the Company and all amendments thereto
on file in the office of the Secretary of the Commonwealth of
Massachusetts, all resolutions adopted by the directors and stockholders of
the Company relating to the aforesaid stock option plans, the aforesaid
Registration Statement and stock option plans, and such other documents as
I deem material for the purposes of this opinion.
Based upon the foregoing, I am of the following opinion:
1. The Company is a duly organized and validly existing
corporation under the laws of the Commonwealth of Massachusetts with
corporate powers adequate for the conduct of its business as presently
conducted.
2. The authorized capital stock of the Company consists of: (a)
1,000,000 shares of Preferred Stock, $1 par value per share, of which no
shares are now outstanding, and (b) 100,000,000 shares of Common Stock, $1
par value per share of which 55,123,595 shares were issued and outstanding
on January 1, 1995.
3. The issuance of up to 5,706,052 shares of EG&G's Common Stock
upon exercise of options then outstanding and options which may be granted
in the future under the plans described in the Registration Statement has
been duly authorized by the Company. The shares issuable upon exercise of
said options, when issued and paid for in accordance with the terms of said
options and the plan pursuant to which said options were or are to be
granted, will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Murray Gross
----------------------
Murray Gross
Vice President and
General Counsel
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of
our reports dated January 25, 1995, included in EG&G, Inc.'s Form 10-K for
the fiscal year ended January 1, 1995, and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Anderson
ARTHUR ANDERSEN LLP
Boston, Massachusetts
September 13, 1995
