EXHIBIT 3.1
CERTIFICATE OF RESTATED ARTICLES OF INCORPORATION
OF
NORTHWEST TELEPRODUCTIONS, INC.
We, the undersigned, John G. Lindell, President, and James N. Steffen,
Secretary, of Northwest Teleproductions, Inc., a Minnesota corporation, subject
to the provisions of Chapter 301 of the Minnesota Statutes, do hereby certify
that, acting pursuant to the provisions of Minnesota Statutes, Section 301.26,
Subd. 11, the shareholders of said corporation duly adopted by unanimous written
consent on the 2nd day of March, 1976, Restated Articles of Incorporation in the
form attached hereto, pursuant to Section 301.37, Subd. 3(5) of the Minnesota
Statutes, which Restated Articles of Incorporation shall supersede and take the
place of the existing Articles of Incorporation and all amendments thereto of
Northwest Teleproductions, Inc.
IN WITNESS WHEREOF, we have hereunto subscribed out names this 2nd day of
March, 1976.
/s/ John G. Lindell
John G. Lindell, President
(No Corporate Seal)
/s/ James N. Steffen
James N. Steffen, Secretary
STATE OF MINNESOTA )
) SS.
COUNTY OF CARVER )
The foregoing instrument was acknowledged before me this 2nd day of March,
1976, by John G. Lindell and James N. Steffen.
(Notarial Seal) /s/ Karen Reamer
Notary Public
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
NORTHWEST TELEPRODUCTIONS, INC.
ARTICLE 1 - NAME
1.1) The name of the corporation shall be NORTHWEST TELEPRODUCTIONS,
INC.
ARTICLE 2 - REGISTERED OFFICE
2.1) The location and post office address of the registered office of
the corporation in this state shall be 4444 West 76th Street, Minneapolis,
Minnesota, 55435.
ARTICLE 3 - DURATION
3.1) The duration of the corporation shall be perpetual.
ARTICLE 4 - PURPOSES
4.1) The corporation shall have general business purposes and may
engage in any lawful activities.
ARTICLE 5 - CAPITAL STOCK
5.1) Authorized Shares. The total authorized number of shares of the
corporation shall be Two Million Five Hundred Thousand (2,500,000) shares
of Common Stock, par value $.01.
5.2) Issuance of Stock. The Board of Directors of the corporation is
authorized from time to time to accept subscriptions for, allot, issue,
sell and deliver shares of stock of any class of the corporation, including
stock issued as a stock dividend, to such persons, at such times and upon
such terms and conditions as the Board shall determine.
5.3) Issuance of Stock Rights. The Board of Directors is further
authorized from time to time to grant and issue rights to convert
securities of the corporation into shares of stock of the corporation of
any class or classes, options to purchase or subscribe for such shares of
stock, and warrants to purchase or subscribe for such shares of stock, and
to fix the terms, provisions and conditions of such rights, options or
warrants, including the conversion basis or bases and the option price or
prices at which such shares may be purchased or subscribed for.
<PAGE>
ARTICLE 6 - RIGHTS OF SHAREHOLDERS
6.1) Preemptive Rights. No holder of any stock of the corporation
shall have any preemptive right to subscribe for or purchase his
proportionate share of any stock of the corporation now or hereafter
authorized or issued.
6.1) Voting Rights. At each meeting of the shareholders and with
respect to any matter upon which the shareholders shall have a right to
vote, each holder of record of shares of Common Stock shall be entitled to
one (1) vote for each share of Common Stock so held. No shareholder shall
have the right to cumulate his votes for the election of directors and
there shall be no cumulative voting for any purpose whatsoever.
ARTICLE 7 - DIRECTORS
7.1) Names. The names and post office addresses of the directors of
the corporation on the date of adoption of these Restated Articles of
Incorporation are:
John G. Lindell 4444 West 76th Street
Minneapolis, Minnesota 55435
7.2) Number and Term. The management of the corporation shall be
vested in a Board of Directors. The number of directors shall be fixed by
the Bylaws and may be altered by amending the Bylaws but shall never be
less than required by law. The term of office of each of the directors
shall be fixed by the Bylaws.
ARTICLE 8 - BYLAWS
8.1) The Board of Directors is expressly authorized to make and alter
Bylaws of this corporation, in the manner provided in the Bylaws, subject
to the power of the shareholders to change or repeal such Bylaws and
subject to any other limitations on such authority provided by the
Minnesota Business Corporation Act.
ARTICLE 9 - MISCELLANEOUS
9.1) Interested Directors. In the absence of fraud, no contract or
other transaction between the corporation and any other corporation, and no
act of the corporation, shall in any way be affected or invalidated by the
fact that any of the directors of the corporation are pecuniarily or
otherwise interested in, or are directors or officers of, such other
corporation; and, in the absence of fraud, any director, individually, or
any firm of which any director may be a member, may be a party to, or may
be pecuniarily or otherwise interested in, any contract or transaction off
the corporation; provided, in any case, that the fact that he or such firm
is so interested shall be disclosed or shall have been known to the Board
of Directors or a majority thereof; and any director of the corporation who
is also a director or officer of any such other corporation or who is so
interested may be counted in determining the existence of a quorum at any
meeting of the Board of Directors of the corporation which shall authorize
any such contract, act or transaction and may vote thereat to authorize any
such contract, act or transaction, with like force and effect as if he were
not such director or officer of such other corporation or not so
interested.
<PAGE>
9.2) Ratification by Shareholders. Any contract, act or transaction of
the corporation or of the directors may be ratified by a vote of a majority
of the shares having voting power at any meeting of shareholders and such
ratification shall, so far as permitted by law and by these Articles of
Incorporation, be as valid and as binding as though ratified by every
shareholder of the corporation.
9.3) Indemnification of Directors, Officers, Employees and Agents.
Except as otherwise provided in the Bylaws, directors, officers, employees
and agents of the corporation shall be indemnified to the maximum extent
permitted by the Minnesota Business Corporation Act, as from time to time
amended, for expenses and liabilities arising by reason of their position
with, or by acts in such capacities on behalf of, the corporation or
another corporation which they may serve at the request of the corporation.
ARTICLE 10 - MERGER, CONSOLIDATION AND SALE OF ASSETS
10.1) When and if authorized by the affirmative vote of the holders of
record of shares of Common Stock entitling them to exercise at least a
majority of the total voting power of all shareholders authorized under
these Articles to vote, the corporation may merge or consolidate into or
with another corporation or sell, lease, exchange or otherwise dispose of
all or substantially all of its property and assets, including its good
will, upon such terms and conditions and for such consideration (which may
be money or other property) as the Board of Directors shall deem advisable.
ARTICLE 11- AMENDMENT OF ARTICLES OF INCORPORATION
11.1) Reservation of Rights. The corporation reserves the right to
amend, alter, change or repeal any provisions contained in these Articles
of Incorporation in the manner now or hereafter prescribed by statute, and
all rights conferred upon shareholders herein are granted subject to this
reservation.
11.2) Amendment Procedure. Any amendment may be adopted by the
affirmative vote of the holders of record of shares of Common Stock
entitling them to exercise at least a majority of the total voting power of
all shareholders authorized under these Articles to vote, except as may be
otherwise prescribed by the Statutes of the State of Minnesota.
<PAGE>
ARTICLES OF AMENDMENT OF ARTICLES OF INCORPORATION
OF
NORTHWEST TELEPRODUCTIONS, INC.
Pursuant to the provisions of Minnesota Statutes, Section 302A.135, the
Articles of Incorporation of Northwest Teleproductions, Inc. were amended at a
meeting of the shareholders of the corporation duly convened and held on the
24th day of July, 1986, by (i) amending Section 5.1 thereof to read as set forth
on Exhibit A hereto, (ii) adding thereto a Section 5.4 to read as set forth on
Exhibit B hereto, and (iii) adding thereto a new Article 12 to read as set forth
on Exhibit C hereto.
I swear that the foregoing is true and accurate and that I have the
authority to sign this document on behalf of the corporation.
/s/ Robert C. Mitchell
Robert C. Mitchell, President
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 14th day of
August, 1986, by Robert C. Mitchell, President of Northwest Teleproductions,
Inc., a Minnesota corporation, on behalf of the corporation.
(Notarial Seal) /s/ Michelle A. Caron
Notary Public
<PAGE>
EXHIBIT A
"5.1) Authorized Shares. The total authorized number of shares of the
corporation shall be 12,500,000 shares, par value $.01, consisting of 10,000,000
shares of Common Stock and 2,500,000 shares of Preferred Stock."
<PAGE>
EXHIBIT B
"5.4) Designation of Preferred Stock Rights. The Board of Directors is
further authorized to establish, by resolution adopted and filed in the manner
provided by law, and to grant rights to subscribe for or purchase, and issue,
one or more series of Preferred Stock having such preferences, rights and
limitations as the Board may establish in such resolution."
<PAGE>
EXHIBIT C
"ARTICLE 12 -- RELATED PERSON BUSINESS TRANSACTIONS
12.1) Whether or not a vote of shareholders is otherwise required, the
affirmative vote of the holders of not less than three-fourths of the voting
power of the outstanding "voting shares" (as hereinafter defined) of the
corporation shall be required for the approval or authorization of any "Related
Person Business Transaction" (as hereinafter defined) involving the corporation
or the approval or authorization by the corporation in its capacity as a
shareholder of any Related Person Business Transaction involving a Subsidiary"
(as hereinafter defined) which requires the approval or authorization of the
shareholders of the Subsidiary; provided, however, that such three-fourths
voting requirement shall not be applicable if:
(a) The "Continuing Directors" (as hereinafter defined) by a majority
vote have expressly approved the Related Person Business Transaction; or
(b) The Related Person Business Transaction is a merger,
consolidation, exchange of shares or sale of all or substantially all of
the assets of the corporation, and the cash or fair market value of the
property, securities or other consideration to be received per share by
holders of Common Stock of the corporation other than the "Related Person"
(as hereinafter defined) in the Related Person Business Transaction is an
amount at least equal to the "Highest Purchase Price" (as hereinafter
defined).
12.2) For the purposes of this Article 12:
(a) The term "Related Person Business Transaction" shall mean (i) any
merger or consolidation of the corporation or a Subsidiary with or into a
Related Person, (ii) any exchange of shares of the corporation or a
Subsidiary for shares of a Related Person which, in the absence of this
Article, would have required the affirmative vote of at least a majority of
the voting power of the outstanding shares of the corporation entitled to
vote or the affirmative vote of the corporation, in its capacity as a
shareholder of the Subsidiary, (iii) any sale, lease, exchange, transfer,
or other disposition (in one transaction or a series of transactions),
including without limitation a mortgage or any other security device, of
all or any "Substantial Part" (as hereinafter defined) of the assets either
of the corporation or of a Subsidiary to or with a Related Person, (iv) any
sale, lease, transfer, or other disposition (in one transaction or a series
of transactions) of all or any Substantial Part of the assets of a Related
Person to or with the corporation or a Subsidiary, (v) the issuance, sale,
transfer or other disposition to a Related Person of any securities of the
corporation (except pursuant to stock dividends, stock splits, or similar
transactions which would not have the effect of increasing the
proportionate voting power of a Related Person) or of a Subsidiary (except
pursuant to a pro rata distribution to all holders of Common Stock of the
corporation), (vi) any recapitalization or reclassification that would have
the effect of increasing the proportionate voting power of a Related
Person, and (vii) any agreement, contract, arrangement, or understanding
providing for any of the transactions described in this definition of
Related Person Business Transaction.
<PAGE>
(b) The term "Related Person" shall mean and include (i) any person or
entity which, together with its "Affiliates" and "Associates" (both as
hereinafter defined), "beneficially owns" (as hereinafter defined) in the
aggregate 15 percent or more of the outstanding voting shares of the
corporation, and (ii) any Affiliate or Associate (other than the
corporation or a wholly-owned subsidiary of the corporation) of any such
person or entity. Two or more persons or entities acting as a syndicate or
group, or otherwise, for the purpose of acquiring, holding, or disposing of
voting shares of the corporation shall be deemed to be a "person" or
"entity" as the case may be.
(c) The term "Affiliate", used to indicate a relationship with a
specified person or entity, shall mean a person or entity that directly, or
indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with, the person or entity specified.
(d) The term "Associate", used to indicate a relationship with a
specified person or entity, shall mean (i) any entity of which such
specified person or entity is an officer or partner or is, directly or
indirectly, the beneficial owner of 10 percent or more of any class of
equity securities, (ii) any trust or other estate in which such specified
person or entity has a substantial beneficial interest or as to which such
specified person or entity serves as trustee or in a similar fiduciary
capacity, (iii) any relative or spouse of such specified person, or any
relative of such spouse, who has the same home as such specified person or
who is a director or officer of the corporation or any Subsidiary, and (iv)
any person who is a director or officer of such specified entity or any of
its parents or subsidiaries (other than the corporation or a wholly-owned
subsidiary of the corporation).
(e) The term "Substantial Part" shall mean 30 percent or more of the
fair market value of the total assets of the person or entity in question,
as reflected on the most recent balance sheet of such person or entity
existing at the time the shareholders of the corporation would be required
to approve or authorize the Related Person Business Transaction involving
the assets constituting any such Substantial Part.
(f) The term "Subsidiary" shall mean any corporation, a majority of
the equity securities of any class of which are owned by the corporation,
by another Subsidiary, or in the aggregate by the corporation and one or
more of its Subsidiaries.
(g) The term "Continuing Director" shall mean (i) a director who was a
member of the Board of Directors of the corporation on the date this
Article 12 is first approved by the shareholders as an amendment to the
Articles of Incorporation of the corporation; or (ii) a director who became
a director before any Related Person involved in the Related Person
Business Transaction in question became a Related Person; or (iii) any
person becoming a director whose election, or nomination for election by
the corporation's shareholders, was approved by a vote of a majority of the
Continuing Directors; provided, however, that in no event shall a Related
Person involved in the Related Person Business Transaction in question be
deemed to be a Continuing Director.
<PAGE>
(h) The term "voting shares" shall mean shares of capital stock of a
corporation entitled to vote generally in the election of directors,
considered for the purposes of this Article as one class.
(i) The term "Highest Purchase Price" shall mean the highest amount of
cash or the fair market value of the property, securities or other
consideration paid by the Related Person for a share of Common Stock of the
corporation at any time while such person or entity was a Related Person or
in the transaction which resulted in such person or entity becoming a
Related Person; provided, however, that the Highest Purchase Price shall be
appropriately adjusted to reflect the occurrence of any reclassification,
recapitalization, stock split, reverse stock split or other readjustment in
the number of outstanding shares of Common Stock of the corporation, or the
declaration of a stock dividend thereon, between the last date upon which
the Related Person paid the Highest Purchase Price and the effective date
of the merger, consolidation or exchange of shares or the date of
distribution to shareholders of the corporation of the proceeds from the
sale of all or substantially all of the assets of the corporation.
(j) (i) A person or entity "beneficially owns" voting shares of the
corporation if such person or entity, directly or indirectly, through any
contract, arrangement, understanding, relationship, or otherwise has or
shares (A) voting power which includes the power to vote, or to direct the
voting of, such voting shares, or (B) investment power which includes the
power to dispose, or to direct the disposition of, such voting shares. Any
person or entity which, directly or indirectly, creates or uses a trust,
proxy, power of attorney, pooling arrangement or any other contract,
arrangement, or device with the purpose or effect of divesting such person
or entity of beneficial ownership of voting shares of the corporation or
preventing the vesting of such beneficial ownership as part of a plan or
scheme to avoid becoming a Related Person shall be deemed for purposes of
this Article 12 to be the beneficial owner of such voting shares. All
voting shares of the corporation beneficially owned by a person or entity,
regardless of the form which such beneficial ownership takes, shall be
aggregated in calculating the number of voting shares of the corporation
beneficially owned by such person or entity. Any voting shares of the
corporation that any person or entity has the right to acquire pursuant to
any agreement, contract, arrangement, or understanding, or upon exercise of
any conversion right, warrant or option, or pursuant to the automatic
termination of a trust, discretionary account or similar arrangement, or
otherwise shall be deemed beneficially owned by such person or entity. Any
voting shares of the corporation not outstanding which any person or entity
has a right to acquire shall be deemed to be outstanding for the purpose of
computing the percentage of outstanding voting shares of the corporation
beneficially owned by such person or entity but shall not be deemed to be
outstanding for the purpose of computing the percentage of outstanding
voting shares of the corporation beneficially owned by any other person or
entity.
<PAGE>
(ii) Notwithstanding the foregoing provisions of subparagraph
12(j)(i) hereof.
(A) A member of a national securities exchange shall not be
deemed to be a beneficial owner of voting shares of the
corporation held directly or indirectly by it on behalf of
another person or entity solely because such member is the record
holder of such voting shares and, pursuant to the rules of such
exchange, may direct the vote of such voting shares, without
instruction, on other than contested matters or matters that may
affect substantially the rights or privileges of the holders of
the voting shares of the corporation to be voted, but is
otherwise precluded by the rules of such exchange from voting
without instruction;
(B) A commercial bank, broker or dealer or insurance company
which in the ordinary course of business is a pledgee of voting
shares of the corporation under a written pledge agreement shall
not be deemed to be the beneficial owner of such pledged voting
shares until the pledgee has taken all formal steps necessary to
declare a default and determines that the power to vote or to
direct the vote or to dispose or to direct the disposition of
such pledged securities will be exercised, provided that the
pledgee agreement is bona fide and was not entered into with the
purpose nor with the effect of changing or influencing the
control of the corporation nor in connection with any transaction
having such purpose or effect and, prior to default, does not
grant to the pledgee the power to vote or to direct the vote of
the pledged voting shares of the corporation; and
(C) A person or entity engaged in business as an underwriter
of securities who acquires voting shares of the corporation
through its participation in good faith in a firm commitment
underwriting registered under the Securities Act of 1933, or
comparable successor law, rule or regulation, shall not be deemed
to be the beneficial owner of such voting shares until the
expiration of forty days after the date of such acquisition.
12.3) For the purposes of this Article 12 the Continuing Directors by a
majority vote shall have the power to make a good faith determination, on the
basis of information known to them, of: (a) the number of voting shares of the
corporation that any person or entity "beneficially owns" (b) whether a person
or entity is an Affiliate or Associate of another, (c) whether the assets
subject to any Related Person Business Transaction constitute a Substantial
Part, (d) whether any business transaction is one in which a Related Person has
an interest, (e) whether the cash or fair market value of the property,
securities or other consideration to be received per share by holders of Common
Stock of the corporation other than the Related Person in a Related Person
Business Transaction is an amount at least equal to the Highest Purchase Price,
and (f) such other matters with respect to which a determination is required
under this Article 12.
12.4) Notwithstanding Section 11.2 hereof, the provisions set forth in this
Article 12, including this Section 12.4, may not be repealed or amended in any
respect unless such action is approved by the affirmative vote of the holders of
not less than three-fourths of the voting power of the outstanding voting shares
of the corporation."
<PAGE>
ARTICLES OF AMENDMENT OF ARTICLES OF INCORPORATION
OF
NORTHWEST TELEPRODUCTIONS, INC.
Pursuant to the provisions of Minnesota Statutes, Section 302A.135, the
Articles of Incorporation of Northwest Teleproductions, Inc. were amended at a
meeting of the shareholders of the corporation duly convened and held on the
23rd day of July 1987, by adding a new Article 13 to read as follows:
"ARTICLE 13 - LIMITATION OF DIRECTOR LIABILITY
To the fullest extent permitted by the Minnesota Business Corporation
Act as the same exists or may hereafter be amended, a director of this
corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a
director."
I swear that the foregoing is true and accurate and that I have the
authority to sign this document on behalf of the corporation.
/s/ Robert C. Mitchell
Robert C. Mitchell, President
STATE OF MINNESOTA )
) SS.
COUNT OF HENNEPIN )
The foregoing instrument was acknowledge before me this 23rd day of July
1987, by Robert C. Mitchell, President of Northwest Teleproductions, Inc., a
Minnesota corporation, on behalf of the corporation.
(Notarial Seal) /s/ David C. Grorud
Notary Public
<PAGE>
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
NORTHWEST TELEPRODUCTIONS, INC.
(Pursuant to Chapter 302A of the
Minnesota Business Corporation Act)
Northwest Teleproductions, Inc., a corporation organized and existing under
the Minnesota Business Corporation Act (hereinafter called the "Company"),
hereby certifies that the following resolution was adopted by the Board of
Directors of the Company at a meeting duly called and held on July 31, 1998:
RESOLVED, that, pursuant to the authority granted to and vested in the
Board of Directors of the Company (hereinafter called the "Board of Directors"
or the "Board") in accordance with the provisions of Section 5.4 of the Articles
of Incorporation, as amended to date (hereinafter called the "Articles of
Incorporation"), the Board of Directors hereby creates a series of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), of the Company and
hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Stock" (the "Series A Preferred Stock"), and
the number of shares constituting the Series A Preferred Stock shall be One
Hundred Thousand (100,000). Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that, no decrease shall
reduce the number of shares of Series A Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Company convertible
into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock, par value $.01 per share (the "Preferred Stock"), of the
<PAGE>
Company or Preferred Stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company, 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 A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for adjustment hereinafter set forth,
100 times (as adjusted, the "Dividend Multiple") the aggregate per share amount
of all cash dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Company 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) into a greater or lesser number of shares of Common Stock, then in
each such case the Dividend Multiple 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 Company shall declare a dividend or distribution on the Series A
Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided, that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
<PAGE>
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than sixty (60) days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
100 votes (as adjusted, the "Vote Multiple") on all matters submitted to a
vote of the stockholders of the Company. In the event the Company 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)
into a greater or lesser number of shares of Common Stock, then in each
such case the Vote Multiple shall be adjusted by multiplying such number by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided in Section 10 hereof, in any other
Certificate of Designations creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock and any other capital stock of
the Company having general voting rights shall vote together as one class
on all matters submitted to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
<PAGE>
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Company ranking junior (as to dividends and
upon dissolution, liquidation and winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board) to all holders of such shares upon such terms as the
Board, 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 Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company 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
Incorporation, or in any other Certificate of Designations creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Company, no distribution shall be made (A) to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received the greater of (i) $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, or (ii) subject to the provision for adjustment hereinafter set
forth, 100 times (as adjusted, the "Liquidation Preference Multiple") the
aggregate amount to be distributed per share to holders of shares of Common
Stock, or (B) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series A
<PAGE>
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company 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) into a greater or lesser number of
shares of Common Stock, then in each such case the Liquidation Preference
Multiple shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, Etc. In case the Company shall enter into
any consolidation, merger, statutory exchange 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 A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times (as adjusted, the "Exchange Multiple")
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 Company 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) into a
greater or lesser number of shares of Common Stock, then in each such case the
Exchange Multiple shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of Preferred Stock hereafter issued that specifically provide
that they shall rank senior to the Series A Preferred Stock.
Section 10. Amendment. If any proposed amendment to the Articles of
Incorporation or this Certificate of Designation would alter or change the
preferences, special rights or powers given to the Series A Preferred Stock so
as to affect the Series A Preferred Stock adversely, or would authorize the
issuance of a class or classes of stock having preferences or rights with
respect to dividends or dissolutions or the distribution of assets that would be
superior to the preferences or rights of the Series A Preferred Stock, then the
holders of the Series A Preferred Stock shall be entitled to vote as a series
upon such amendment, and the affirmative vote of two-thirds of the outstanding
shares of Series A Preferred Stock shall be necessary to the adoption thereof,
in addition to such other vote as may be required by the Minnesota Business
Corporation Act.
<PAGE>
Section 11. Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
I certify that I am authorized to execute this Certificate of Designations,
and I further certify that I understand that by signing this Certificate I am
subject to the penalties of perjury as set forth in Minnesota Statutes, Section
609.48, as if I had signed this Certificate under oath.
Dated: August 3, 1998
/s/ Phillip A. Staden
Phillip A. Staden, President and
Chief Executive Officer
<PAGE>
ARTICLES OF MERGER
OF
NORTHWEST TELEPRODUCTIONS/KANSAS CITY, INC.
INTO
NORTHWEST TELEPRODUCTIONS, INC.
Pursuant to the provisions of Minnesota Statutes, and particularly Section
302A.621 thereof, the following Articles of Merger are executed on the date
hereinafter set forth:
FIRST: Attached hereto as Exhibit A is a copy of a Plan of Merger to merge
Northwest Teleproductions/Kansas City, Inc., a Minnesota corporation, into
Northwest Teleproductions, Inc., a Minnesota corporation (the "Parent") and, in
connection therewith, to change the name of the Parent to "Broadview Media,
Inc."
SECOND: The Plan of Merger has been approved by the Parent pursuant to
Chapter 302A, Section 302A.621.
THIRD: Northwest Teleproductions/Kansas City, Inc. has 100 outstanding
shares, all of which are owned by the Parent.
I certify that I am authorized to execute these Articles of Merger and I
further certify that I understand that by signing these Articles of Merger I am
subject to the penalties of perjury as set forth in Minnesota Statutes, Section
609.48, as if I had signed these Articles of Merger under oath.
Dated this _______ day of _______________, 2000.
NORTHWEST TELEPRODUCTIONS,
INC.
By
Its President
<PAGE>
EXHIBIT A
PLAN OF MERGER
OF
NORTHWEST TELEPRODUCTIONS/KANSAS CITY, INC.
INTO
NORTHWEST TELEPRODUCTIONS, INC.
1. Northwest Teleproductions, Inc. (the "Parent"), as the owner of all of
the outstanding shares of Northwest Teleproductions/Kansas City, Inc. ("Kansas
City"), shall merge Kansas City into the Parent (the "Merger") in accordance
with the provisions of Minnesota Statutes, Section 302A.621.
2. In connection with the Merger, the name of the Parent shall be changed
to "Broadview Media, Inc."
3. In connection with the merger, the Parent, as the surviving corporation,
shall assume all of the obligations of Kansas City outstanding at the effective
time of the Merger.
4. The shares of Kansas City shall not be converted into shares of the
Parent but shall, at the effective time of the Merger, be surrendered and
extinguished without payment of any cash or the delivery of any other
consideration.
5. The effective time of the Merger herein provided for shall be the date
on which Articles of Merger are filed with the Secretary of State.
<PAGE>
RESOLUTIONS FOR ADOPTION AT MEETING OF BOARD OF DIRECTORS
OF
NORTHWEST TELEPRODUCTIONS, INC.
March 23, 2000
Adoption of Plan of Merger
RESOLVED, that the following Plan of Merger to merge Northwest
Teleproductions/Kansas City, Inc. into this corporation be and it hereby is
adopted and approved:
1. Northwest Teleproductions, Inc. (the "Parent"), as the owner of all of
the outstanding shares of Northwest Teleproductions/Kansas City, Inc. ("Kansas
City"), shall merge Kansas City into the Parent (the "Merger") in accordance
with the provisions of Minnesota Statutes, Section 302A.621.
2. In connection with the Merger, the name of the Parent shall be changed
to "Broadview Media, Inc."
3. In connection with the merger, the Parent, as the surviving corporation,
shall assume all of the obligations of Kansas City outstanding at the effective
time of the Merger.
4. The shares of Kansas City shall not be converted into shares of the
Parent but shall, at the effective time of the Merger, be surrendered and
extinguished without payment of any cash or the delivery of any other
consideration.
5. The effective time of the Merger herein provided for shall be the date
on which Articles of Merger are filed with the Secretary of State.
