As filed with the Securities and Exchange Commission on August 18, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MAPICS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Massachusetts (7372) 04-2711580
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Number) Identification Number)
</TABLE>
5775-D Glenridge Drive, Atlanta, Georgia 30328 (404) 705-3000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
William J. Gilmour
Chief Financial Officer
MAPICS, Inc.
5775-D Glenridge Drive
Atlanta, Georgia 30328
(404) 705-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------------------
Copies to:
Mark H. Burnett
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
High Street Tower
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an Offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same Offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same Offering: [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Shares to be registered Amount to be Proposed maximum Proposed maximum Amount of
registered offering price per aggregate offering registration
share(1) price (1) fee(2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share (2)........................... 142,976 shares $11.6875 $1,671,032 $506.38
- ------------------------------------------------------------------------------------------------------------------------------------
Rights to Purchase Series F Junior Participating
Preferred Stock, par value $1.00 per share........ 142,976 rights (3) (3) None
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, and
based on the average of the high and low sales prices on August 14, 1997,
as reported on the Nasdaq National Market.
(2) Pursuant to Rule 429 under the Securities Act of 1933, the enclosed
Prospectus carries forward an aggregate of 383,333 shares of Common Stock
including in a Registration Statement on Form S-3 (File No. 33-90670) filed
on March 28, 1995 and amended on May 31, 1996. A filing fee of $1,470.55
was paid with respect to these shares.
(3) No separate consideration will be received for the Rights.
-----------------------------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus included in this Registration Statement also relates to the
Registrant's Registration Statement on Form S-3 filed on March 28, 1995 and
Post-Effective Amendment No. 1 thereto, filed on May 31, 1996 (No. 33-90670).
<PAGE>
SUBJECT TO COMPLETION, DATED August 18, 1997
MAPICS, INC.
- --------------------------------------------------------------------------------
526,309 Shares
Common Stock
- --------------------------------------------------------------------------------
This Prospectus relates to the offering and resale of 526,309 shares
(the "Shares") of Common Stock, par value $.01 per share (the "Common Stock"),
of MAPICS, Inc. ("MAPICS" or the "Company," previously known as Marcam
Corporation), by holders (the "Warrantholders" or the "Selling Shareholders") of
certain warrants to purchase shares of the Common Stock (the "Warrants"). This
Prospectus does not relate to the issuance of the shares of the Common Stock
upon exercise of the Warrants but relates to the resale of such shares of Common
Stock by the Selling Shareholders. The Selling Shareholders may sell the Shares
at market prices prevailing at the time of the sale or at prices otherwise
negotiated. See "PLAN OF DISTRIBUTION." The Selling Shareholders originally
acquired warrants to purchase up to an aggregate of 383,333 shares of the Common
Stock on May 12, 1994 in connection with a private placement and pursuant to the
terms of several substantially identical Note and Warrant Purchase Agreements
(collectively, the "Purchase Agreement"), as amended, dated as of May 12, 1994
by and among the Company and each of The Northwestern Mutual Life Insurance
Company, John Hancock Mutual Life Insurance Company and John Hancock Life
Insurance Company of America (the "Original Warrants"). On July 29, 1997, the
Company distributed all of the outstanding shares of common stock, par value
$.01 per share, of Marcam Solutions, Inc., a Delaware corporation ("Marcam
Solutions"), to the Company's stockholders of record on the record date for the
distribution (the "Distribution"). In connection with the Distribution, the
Original Warrants were adjusted such that (i) the exercise price per Share was
decreased, and (ii) the number of underlying Shares was increased (the
"Adjustment"). As a result of the Adjustment, the Selling Shareholders currently
hold warrants to purchase up to an aggregate of 526,309 shares of the Common
Stock. The Warrants are exercisable until April 30, 2001. As of the date of this
Prospectus, none of the Warrants has been exercised. The Selling Shareholders
and certain persons who purchase shares from them, including broker-dealers
acting as principals who may resell the Shares, may be deemed "underwriters," as
that term is defined in the Securities Act of 1933, as amended (the "Securities
Act"). See "PLAN OF DISTRIBUTION" and "SELLING SHAREHOLDERS."
None of the proceeds from the resale of the Shares will be received by
the Company. The Company will receive the proceeds from the exercise of the
Warrants. The Company is responsible for the expenses incurred in connection
with the registration of the Shares. The Selling Shareholders will pay or assume
brokerage commissions or other similar charges incurred in the sale of the
Shares. The Company has agreed to indemnify the Selling Shareholders against
certain liabilities, including liabilities under the Securities Act, and, in
lieu thereof, to contribute toward amounts paid in respect of such liabilities.
MAPICS' Common Stock is listed on The Nasdaq National Market under the
symbol "MAPX." The last reported sale price for the Common Stock on August 15,
1997 was $11.25, as reported by The Nasdaq National Market.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
AN INVESTMENT IN THESE SECURITIES INVOLVES CERTAIN RISKS. SEE "RISK
FACTORS" APPEARING ON PAGE 3.
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus in connection with
the offering made hereby, and if given or made, such information or
representation must not be relied upon as having been authorized by the Company.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that information herein is correct as
of any time subsequent to the date hereof.
The date of this Prospectus is ______________, 1997.
<PAGE>
This Prospectus contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. Actual results could differ
materially from those projected in the forward-looking statements as a result of
the risk factors incorporated herein by reference and elsewhere in this
Prospectus. In addition to the other information contained in this Prospectus,
the risk factors incorporated herein by reference should be carefully
considered by prospective investors when evaluating an investment in the Common
Stock offered hereby.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission. All such reports, proxy statements and
other information can be inspected and copied at the public reference facilities
maintained by the Securities and Exchange Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following regional offices of the Securities
and Exchange Commission: 73 Tremont Street, Suite 600, Boston, Massachusetts
02108-3912; 7 World Trade Center, Suite 1300, New York, New York 10048; and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may also be obtained from the Public
Reference Section of the Securities and Exchange Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. The Securities and Exchange
Commission maintains a World-Wide Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Securities and Exchange Commission. The address of the
Securities and Exchange Commission's Web site is http://www.sec.gov. The Common
Stock of the Company is quoted on The Nasdaq National Market and such material
may also be inspected at the offices of the National Association of Securities
Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Securities and Exchange Commission a
Registration Statement on Form S-3 (including all amendments thereto, the
"Registration Statement") under the Securities Act, with respect to the Common
Stock offered hereby. This Prospectus, which constitutes part of the
Registration Statement, does not contain all information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Securities and Exchange Commission. For further
information regarding the Company and the Common Stock offered hereby, reference
is hereby made to the Registration Statement and to the exhibits and schedules
filed therewith. Statements contained in this Prospectus regarding the contents
of any agreement or other document filed as an exhibit to the Registration
Statement are not necessarily complete, and in each instance reference is made
to the copy of such agreement filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference. The
Registration Statement, including the exhibits and schedules thereto, may be
inspected at the Public Reference Section of the Securities and Exchange
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and copies of all
or any part thereof may be obtained from such office upon payment of the
prescribed fees.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated in this Prospectus by
reference as of their respective dates (File No. 0-18674): (1) Annual Report on
Form 10-K for the fiscal year ended September 30, 1996, including portions of
Marcam Corporation's Proxy Statement dated January 8, 1997 for its Annual
Meeting of Stockholders held on February 12, 1997 set forth under the captions
"Election of Directors," "The Board of Directors and its Committees," "Executive
Compensation," "Securities Ownership of Certain Beneficial Owners and
Management" and "Certain Relationships and Related Transactions"; (2) Quarterly
Reports on Form 10-Q for the fiscal periods ended December 31, 1996, March 31,
1997 and June 30, 1997; (3) Current Reports on Form 8-K dated December 3, 1996,
May 9, 1997, as amended on July 3, 1997, July 15, 1997, July 23, 1997, August 8,
1997 and August 12, 1997; (4) the section entitled "Description of Securities to
be Registered" contained in the Registrant's Registration Statement on Form 8-A
filed with the Commission on December 5, 1996; (5) the section entitled
"Description of Securities to be Registered" contained in the Registrant's
Registration Statement on Form 8-A filed on June 29, 1990, as amended on Form 8
as filed with the Commission on August 13, 1990; (6) the Registrant's Proxy
Statement dated June 16, 1997 for its Special Meeting of
2
<PAGE>
Stockholders held on July 17, 1997; and (7) the Final Prospectus of the
Registrant as filed with the Commission on July 30, 1997 pursuant to Rule 424(b)
of the Securities Act.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the Offering shall be deemed to be incorporated
by reference in this Prospectus from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which is also deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents described above (other than exhibits to such
documents). Requests for such copies should be directed to William J. Gilmour,
Chief Financial Officer, MAPICS, Inc., 5775-D Glenridge Drive, Atlanta, Georgia
30328 (telephone: (404) 705-3000).
THE COMPANY
MAPICS is a leading provider of enterprise resource planning ("ERP")
software applications for mid-size discrete and batch-process manufacturing
enterprises worldwide. The Company's products provide an integrated and
function-rich ERP solution with the breadth and depth of applications to manage
an entire manufacturing enterprise. The MAPICS XA product line currently
consists of 44 integrated application modules in the areas of Engineering and
Cost Management, Market and Demand Management, Plant Operations and Logistics
Management, Production Resource Planning, Financial Management and Measurements
and Cross Applications Solutions. The Company continually enhances its product
offerings to meet the specific needs of mid-size manufacturers and offers such
manufacturers the opportunity to gradually migrate to new technologies, one user
at a time if desired, while protecting their existing investments in both
hardware and software. In addition to its internal development programs, the
Company utilizes independent software developers, known as Solution Partners, to
assist in the development of new applications. Solution Partners permit the
Company to introduce new applications quickly and on a variable cost basis.
The Company was incorporated in Massachusetts in 1980. The Company's
principal executive offices are located at 5775-D Glenridge Drive, Atlanta,
Georgia 30328, and its telephone number is (404) 705-3000.
RISK FACTORS
The risk factors are contained in the Final Prospectus of the Company
as filed with the Commission on July 30, 1997 pursuant to Rule 424(b)(4) of the
Securities Act and are incorporated herein by this reference.
See "Information Incorporated by Reference."
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Shareholders. The Company will receive the proceeds from
the exercise of the Warrants. The current exercise price for each Warrant is
$6.5041 per share (subject to adjustment upon the occurrence of certain events)
and is payable, at the election of the Warrantholders, (i) in cash; or (ii) by
surrendering for cancellation additional Warrant Certificates having a value
(calculated with regard to the excess of the market price of the Common Stock
issuable in respect thereof over the aggregate exercise price therefor) equal to
the exercise price of the Warrants being exercised. In the event that the
Company receives cash proceeds for the exercise of any Warrants, such cash will
be used for general corporate purposes.
3
<PAGE>
SELLING SHAREHOLDERS
The Original Warrants were issued to the Warrantholders in partial
consideration for the purchase by the Warrantholders in May 1994 of an aggregate
principal amount of $25,000,000 9.82% Subordinated Notes (the "Subordinated
Notes"). The Subordinated Notes have been repaid by the Company prior to the
date of this Prospectus.
The following table sets forth certain information regarding beneficial
ownership of the Common Stock as of August 12, 1997 and the number of Shares
which may be offered for the account of the Selling Shareholders or their
transferees from time to time.
<TABLE>
<CAPTION>
Shares of Common Stock Shares Shares of Common Stock
Beneficially To Be Sold Beneficially
Owned Prior In The Owned After
Selling Shareholders (1) To The Offering Offering (2) The Offering (2)
------------------------ --------------- ------------ ----------------
Number Percent
------ -------
<S> <C> <C> <C> <C>
The Northwestern Mutual Life Insurance 565,786 315,786 250,000 1.31%
Company(3)
John Hancock Mutual Life Insurance Company 168,418 168,418 0 *
John Hancock Life Insurance Company of 42,105 42,105 0 *
America
</TABLE>
- ----------------------
* represents less than 1% of the Company's outstanding Common Stock.
(1) The Selling Shareholders have not had any position, office or other
material relationship with the Company or any of its affiliates within
the three years preceding the date of this Prospectus, except as noted
in footnote 3 below.
(2) Assumes that the Selling Shareholders or their transferees sell all of
their Shares pursuant to the offering.
(3) The Northwestern Mutual Life Insurance Company's holdings include
25,000 shares of Series D Convertible Preferred Stock which are
convertible into 250,000 shares of Common Stock. Such underlying shares
of Common Stock are not being offered hereby.
PLAN OF DISTRIBUTION
The Shares offered hereby may be sold from time to time by the Selling
Shareholders acting as principals for their own accounts. The Company is
responsible for the expenses incurred in connection with the registration of the
Shares. The Selling Shareholders will pay or assume brokerage commissions or
other charges and expenses incurred in the sale of the Shares. In addition, the
Company has agreed to indemnify the Selling Shareholders against certain
liabilities, including liabilities under the Securities Act, and, in lieu
thereof, to contribute toward amounts paid in respect of such liabilities and,
in the event that any offering is made by the Selling Shareholders through
underwriters, to agree to indemnify such underwriters for, and to contribute
towards amounts paid by such underwriters, in respect of such liabilities.
The distribution of the Shares by the Selling Shareholders is not
currently subject to any underwriting agreement. The Shares covered by this
Prospectus may be sold by the Selling Shareholders or by pledgees, donees,
transferees, or other successors in interest from time to time. Such sales may
be made at fixed prices that may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, or at
negotiated prices. Such sales may be effected in the over-the-counter market, on
the National Association of Securities Dealers Automated Quotation System, on
The Nasdaq National Market or on any exchange on which the
4
<PAGE>
Shares may then be listed. The Shares may be sold by one or more of the
following: (a) one or more block trades in which a broker or dealer so engaged
will attempt to sell all or a portion of the Shares held by each Selling
Shareholder as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; and (c) ordinary brokerage transactions and transactions in which
the broker solicits purchasers. The Selling Shareholders may effect such
transactions by selling Shares to or through broker-dealers, and such
broker-dealers will receive compensation in negotiated amounts in the form of
discounts, concessions, commissions or fees from the Selling Shareholders and/or
the purchasers of the Shares for whom such broker-dealers may act as agent or to
whom they sell as principal, or both (which compensation to a particular
broker-dealer might be in excess of customary commissions). Such brokers or
dealers or the participating brokers or dealers and the Selling Shareholders may
be deemed to be "underwriters" within the meaning of the Securities Act, in
connection with such sales and any commissions received by such broker-dealers
may be deemed to be underwriting compensation.
Any securities covered by this Prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act, may be sold under Rule 144 rather
than pursuant to this Prospectus.
The Selling Shareholders are not restricted as to the price or prices
at which they may sell their Shares. Sales of such Shares at less than the
market prices may depress the market price of the Company's Common Stock.
Moreover, the Selling Shareholders are not restricted as to the number of Shares
which may be sold at any one time, and it is possible that a significant number
of Shares could be sold at the same time.
The Company has agreed to keep the registration statement relating to
the offering and sale of the Shares effective until the earlier to occur of (i)
April 30, 2001, and (ii) such earlier time as all Shares have been disposed of
in a manner permitting resale without further registration thereof under the
Securities Act.
Boston Equiserve, 150 Royall Street, Canton, Massachusetts 02021, is
the transfer agent and registrar for the Company's Common Stock.
LEGAL MATTERS
Certain legal matters with respect to the issuance of the Shares are
being passed upon for the Company by Testa, Hurwitz & Thibeault, LLP, High
Street Tower, 125 High Street, Boston, Massachusetts.
EXPERTS
The combined financial statements of MAPICS, Inc. as of September 30,
1995 and 1996 and March 31, 1997 and for each of the three years in the period
ended September 30, 1996 and for the six months ended March 31, 1997, included
in the Registration Statement on Form S-3 (No. 333-26203), as amended, of the
Company filed with the Securities and Exchange Commission and referred to above,
have been audited by Coopers & Lybrand L.L.P., independent accountants, as set
forth in their report dated June 3, 1997, accompanying such financial
statements, and are incorporated herein by reference in reliance on the report
of such firm, which report is given upon their authority as experts in
accounting and auditing.
The consolidated financial statements of Marcam Corporation as of
September 30, 1996 and 1995 and for each of the two years in the period ended
September 30, 1996, included in the Annual Report on Form 10-K of the Company
for the year ended September 30, 1996 and referred to above, have been audited
by Coopers & Lybrand L.L.P., independent accountants, as set forth in their
report dated October 24, 1996, accompanying such financial statements, and are
incorporated herein by reference in reliance upon the report of such firm, which
report is given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Marcam Corporation and
subsidiaries for the year ended September 30, 1994, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
5
<PAGE>
================================================================================
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus and,
if given or made, such information or representations must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell, or a solicitation of an offer to sell, any securities other than
the registered securities to which it relates, or an offer to or solicitation of
any person in any jurisdiction where such an offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create an implication that the information
contained herein is correct as of any time subsequent to the date hereof.
- ----------------------------------
TABLE OF CONTENTS
Page
Available Information....................... 2
Information Incorporated by
Reference................................. 2
The Company................................. 3
Risk Factors................................ 3
Use of Proceeds............................. 3
Selling Shareholders........................ 4
Plan of Distribution........................ 4
Legal Matters............................... 5
Experts..................................... 5
================================================================================
526,309 Shares
MAPICS, INC.
Common Stock
________________
PROSPECTUS
----------------
, 1997
--------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate (except for the SEC
registration fee and the Nasdaq National Market listing fee) of the fees and
expenses expected to be incurred in connection with the distribution of the
securities being registered under the Registration Statement.
Securities and Exchange Commission Fee.................. $506.38
Nasdaq National Market listing fee...................... $2,859.52
Legal Fees and Expenses................................. $10,000.00
Accounting Fees and Expenses............................ $10,000.00
Blue Sky Fees and Expenses (including legal fees)....... $2,000.00
Miscellaneous Expenses.................................. $500.00
----------
Total....... $25,865.90
None of the above expenses will be paid by the Selling Shareholders.
Item 15. Indemnification of Directors and Officers
Section 67 of the Massachusetts Business Corporation Law ("Section 67")
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (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.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. The Company's Restated
Articles of Organization provide indemnification to the Company's directors and
officers to the fullest extent permitted by Massachusetts law, including
circumstances in which indemnification is otherwise discretionary. The Company's
By-laws provide that each director and officer shall be indemnified by the
Company against liabilities and expenses in connection with any legal proceeding
to which such officer or director may become a party by reason of being or
having been an officer or director, provided that such officer or director acted
in good faith and in a manner he or she reasonably believed to be in the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The Company has also entered into indemnity agreements with each of its
directors and certain executive officers, which agreements require the Company
to indemnify such individuals to the fullest extent permitted by Massachusetts
law.
The Company's Restated Articles of Organization eliminate the personal
liability of the Company's directors for monetary damages for breach of their
fiduciary duty as directors to the Company and its stockholders, notwithstanding
any provision of law imposing such liability. The Company's Articles of
Organization, however, do not eliminate liability of the Company's directors for
breach of the director's duty of loyalty to the Company or its stockholders,
acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of law and actions leading to improper personal benefit to the
director, or under Section 61 or 62 of the Massachusetts Business Corporation
Law.
II-1
<PAGE>
Item 16. Exhibits
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1* Restated Articles of Organization, as amended, of the
Registrant
4.2* By-laws, as amended and restated, of the Registrant
4.3 Specimen Common Stock Certificate (filed as Exhibit 4.4 to the
Registrant's Registration Statement on Form S-1, No. 33-35666,
and incorporated herein by reference)
4.4 Certificate of Vote of Directors Establishing a Series or a
Class of Stock of the Registrant (filed as Exhibits 3.1, 4.2
to Current Report on Form 8-K dated June 18, 1993, and
incorporated herein by reference)
4.5 Certificate of Vote of Directors Establishing a Series or a
Class of Stock of the Registrant (filed as Exhibits 3.4, 4.4
to Annual Report on Form 10-K for the fiscal year ended
September 30, 1993, and incorporated herein by reference)
4.6 Certificate of Vote of Directors Establishing a Series of a
Class of Stock for the Series D Convertible Preferred Stock of
Marcam Corporation (filed as Exhibit 4 to Current Report on
Form 8-K dated September 29, 1995, and incorporated herein by
reference)
4.7 Certificate of Vote of Directors Establishing a Series of a
Class of Stock for the Series E Convertible Preferred Stock of
Marcam Corporation (filed as Exhibit 4 to Current Report on
Form 8-K dated July 23, 1996, and incorporated herein by
reference)
4.8 Rights Agreement, dated as of December 3, 1996, between Marcam
Corporation and the First National Bank of Boston, which
includes as Exhibit A the form of Certificate of Vote of
Directors Establishing a Series of a Class of Stock, as
Exhibit B the Form of Rights Certificate, and as Exhibit C the
Summary of Rights to Purchase Preferred Stock (filed as
Exhibit 4 to Current Report on Form 8-K dated December 3,
1996, and incorporated herein by reference)
4.9 Revolving Credit and Term Loan Agreement dated as of August 4,
1997 among MAPICS, Inc., BankBoston, N.A. and the other
lending institutions set forth on Schedule I thereto, and
BankBoston, N.A. as agent (filed as Exhibit 10.1 to Current
Report on Form 8-K dated August 12, 1997, and incorporated
herein by reference)
4.10 Security Agreement dated August 4, 1997 between MAPICS, Inc.
and BankBoston, N.A. as agent (filed as Exhibit 10.2 to
Current Report on Form 8-K dated August 12, 1997, and
incorporated herein by reference)
4.11 Revolving Credit Note in the principal amount of $15,000,000
dated August 4, 1997 (filed as Exhibit 10.3 to Current Report
on Form 8-K dated August 12, 1997, and incorporated herein by
reference)
4.12 Term Note in the principal amount of $15,000,000 dated August
4, 1997 (filed as Exhibit 10.4 to Current Report on Form 8-K
dated August 12, 1997, and incorporated herein by reference)
5.1* Opinion of Testa, Hurwitz & Thibeault, LLP
23.1* Consent of Testa, Hurwitz & Thibeault, LLP (contained in
Exhibit 5.1)
II-2
<PAGE>
23.2* Consent of Coopers & Lybrand L.L.P.
23.3* Consent of Coopers & Lybrand L.L.P.
23.4* Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (contained in the Signature Pages)
--------------
* Filed herewith.
II-3
<PAGE>
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this August 18, 1997.
MAPICS, INC.
By: /s/William J. Gilmour
--------------------------------
Name: William J. Gilmour
Title: Chief Financial Officer and
Vice President Finance
POWER OF ATTORNEY AND SIGNATURES
The undersigned directors and officers of MAPICS, Inc. do hereby
constitute and appoint William J. Gilmour and Richard C. Cook, and each of them,
with full power of substitution, our true and lawful attorneys-in-fact and
agents to do any and all acts and things in our name and behalf in our
capacities as directors and officers, and to execute any and all instruments for
us and in our names in the capacities indicated below which such person may deem
necessary or advisable to enable MAPICS, Inc. to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the SEC, in
connection with this Registration Statement, including specifically, but not
limited to, power and authority to sign for us, or any of us, in the capacities
indicated below, any and all amendments (including post-effective amendments
filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended) hereto;
and we do hereby ratify and confirm all that such person or persons shall do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ------ ----
<S> <C> <C>
/s/Richard C. Cook President, Chief Executive Officer and August 18, 1997
- ------------------------------------ Director (Principal Executive Officer)
Richard C. Cook
/s/William J. Gilmour Chief Financial Officer and Vice August 18, 1997
- ------------------------------------ President of Finance (Principal
William J. Gilmour Financial and Accounting Officer)
/s/George A. Chamberlain, 3d Director August 18, 1997
- ------------------------------------
George A. Chamberlain, 3d
/s/William E. Ford Director August 18, 1997
- ------------------------------------
William E. Ford
Director August __, 1997
- ------------------------------------
Edward J. Kfoury
</TABLE>
<PAGE>
EXHIBIT LIST
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1* Restated Articles of Organization, as amended, of the
Registrant
4.2* By-laws, as amended and restated, of the Registrant
4.3 Specimen Common Stock Certificate (filed as Exhibit 4.4 to the
Registrant's Registration Statement on Form S-1, No. 33-35666,
and incorporated herein by reference)
4.4 Certificate of Vote of Directors Establishing a Series or a
Class of Stock of the Registrant (filed as Exhibits 3.1, 4.2
to Current Report on Form 8-K dated June 18, 1993, and
incorporated herein by reference)
4.5 Certificate of Vote of Directors Establishing a Series or a
Class of Stock of the Registrant (filed as Exhibits 3.4, 4.4
to Annual Report on Form 10-K for the fiscal year ended
September 30, 1993, and incorporated herein by reference)
4.6 Certificate of Vote of Directors Establishing a Series of a
Class of Stock for the Series D Convertible Preferred Stock of
Marcam Corporation (filed as Exhibit 4 to Current Report on
Form 8-K dated September 29, 1995, and incorporated herein by
reference)
4.7 Certificate of Vote of Directors Establishing a Series of a
Class of Stock for the Series E Convertible Preferred Stock of
Marcam Corporation (filed as Exhibit 4 to Current Report on
Form 8-K dated July 23, 1996, and incorporated herein by
reference)
4.8 Rights Agreement, dated as of December 3, 1996, between Marcam
Corporation and the First National Bank of Boston, which
includes as Exhibit A the form of Certificate of Vote of
Directors Establishing a Series of a Class of Stock, as
Exhibit B the Form of Rights Certificate, and as Exhibit C the
Summary of Rights to Purchase Preferred Stock (filed as
Exhibit 4 to Current Report on Form 8-K dated December 3,
1996, and incorporated herein by reference)
4.9 Revolving Credit and Term Loan Agreement dated as of August 4,
1997 among MAPICS, Inc., BankBoston, N.A. and the other
lending institutions set forth on Schedule I thereto, and
BankBoston, N.A. as agent (filed as Exhibit 10.1 to Current
Report on Form 8-K dated August 12, 1997, and incorporated
herein by reference)
4.10 Security Agreement dated August 4, 1997 between MAPICS, Inc.
and BankBoston, N.A. as agent (filed as Exhibit 10.2 to
Current Report on Form 8-K dated August 12, 1997, and
incorporated herein by reference)
4.11 Revolving Credit Note in the principal amount of $15,000,000
dated August 4, 1997 (filed as Exhibit 10.3 to Current Report
on Form 8-K dated August 12, 1997, and incorporated herein by
reference)
4.12 Term Note in the principal amount of $15,000,000 dated August
4, 1997 (filed as Exhibit 10.4 to Current Report on Form 8-K
dated August 12, 1997, and incorporated herein by reference)
5.1* Opinion of Testa, Hurwitz & Thibeault, LLP
23.1* Consent of Testa, Hurwitz & Thibeault, LLP (contained in
Exhibit 5.1)
23.2* Consent of Coopers & Lybrand L.L.P.
<PAGE>
23.3* Consent of Coopers & Lybrand L.L.P.
23.4* Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (contained in the Signature Pages)
--------------
* Filed herewith.
Exhibit 4.1
The Commonwealth of Massachusetts
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
RESTATED ARTICLES OF ORGANIZATION
General Laws, Chapter 156B, Section 74
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date on the vote of stockholders adopting the
restated articles of organization. The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the
Commonwealth of Massachusetts.
-----------
We, Paul A. Margolis President and
John A. Campbell Clerk of
Marcam Corporation
Name of Corporation
located at 95 Wells Avenue, Newton, MA 02159
-----------------------------------------------------------------
do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted at a meeting held on June 26, 1990, by vote
of See Attachment A _______ shares of ________________ out of ___________ shares
(Class of Stock)
outstanding. _____________ shares of _______________ out of ____________ shares
(Class of Stock)
outstanding, and ____________ shares of _________________ out of ____________
(Class of Stock)
shares outstanding, being at least two-thirds of each class of stock outstanding
and entitled to vote and of each class or series of stock adversely affected
thereby.
1. The name by which the corporation shall be known is Marcam
Corporation
2. The purposes for which the corporation is formed are as follows:
<PAGE>
To develop, produce and market computer software; to provide
consultation services with respect to computer software; and to engage
in any other lawful business now or hereafter permitted under
applicable law to a corporation organized under Massachusetts General
Laws, Chapter 156B.
<TABLE>
<CAPTION>
WITHOUT PAR VALUE WITH PAR VALUE
---------------------------- ----------------------
NUMBER OF PAR
CLASS OF STOCK SHARES NUMBER OF SHARES VALUE
-------------- ------ ---------------- -----
<S> <C> <C> <C>
Preferred 0 Undesignated Preferred 1,000,000 $1.00
Common 0 Common 15,000,000 .01
</TABLE>
4. If more than one class is authorized, a description of each of
the different classes of stock with, if any, the preferences,
voting powers, qualifications, special or relative rights or
privileges as to each class thereof and any series now
established:
See Attachment 4
5. The restrictions, if any, imposed by the articles of organization
upon the transfer of shares of stock of any class are as follows:
See Attachment 5
<PAGE>
*6. Other lawful provisions, if any, for the conduct and regulation
of the business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining, or regulating the powers
of the corporation, or of its directors or stockholders, or of
any class of stockholders:
See Attachment 6
*If there are no such provisions, state "None".
<PAGE>
ATTACHMENT A
1,762,713 shares of Common Stock out of 1,881,983 shares outstanding.
392,352 shares of Class A Preferred Stock out of 521,487 shares outstanding.
642,870 shares of Class B Preferred Stock out of 642,870 shares outstanding.
783,706 shares of Class C Preferred Stock out of 785,219 shares outstanding.
302,832 shares of Class D Preferred Stock out of 302,832 shares outstanding.
<PAGE>
ATTACHMENT 4
------------
The following is a statement of the designations, preferences, voting
powers, qualifications, and special or relative rights or privileges in respect
of each class of capital stock of the Corporation.
A. COMMON STOCK.
-------------
1. General. There shall be one class of common stock of the Corporation
(the "Common Stock"). The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the rights of the holders of
outstanding shares of Preferred Stock of any class or series as may be
designated herein or by the Board of Directors of the Corporation in accordance
with the provisions hereof.
2. Voting. The holders of the Common Stock are entitled to one vote for
each share held at all meetings of stockholders (and written actions in lieu of
meetings). There shall be no cumulative voting.
3. Dividends. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential and participation rights of any then
outstanding Preferred Stock.
B. PREFERRED STOCK.
----------------
Up to 1,000,000 shares of preferred stock (the "Preferred Stock") may
be issued in one or more series at such time or times and for such consideration
or considerations as the Board of Directors of the Corporation may determine.
Each series of the Preferred Stock shall be designated so as to distinguish the
shares thereof from the shares of all other series and classes of the stock of
the Corporation. Except as to the relative preferences, powers, qualifications,
rights and privileges referred to below in this Part B, in respect of any or all
of which there may be variations between different series, all shares of the
Preferred Stock shall be identical. Different series of the Preferred Stock
shall not be construed to constitute different classes of shares for the purpose
of voting by classes.
<PAGE>
Subject to limitations prescribed by law or by these Articles of
Organization or the by-laws of the Corporation as from time to time amended, the
Board of Directors is expressly authorized to provide by adopting a vote or
votes, a certificate of which shall be filed in accordance with the Business
Corporation Law of The Commonwealth of Massachusetts, for the issuance of the
Preferred Stock in one or more series, each such series to have such number of
shares, designations, preferences, voting powers, qualifications, and special or
relative rights or privileges as shall be stated in the vote or votes
establishing 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 distinguishing designation of such series and the number of
shares to constitute such series;
(2) the rate at which dividends, if any, on the shares of such series
shall be declared and paid, or set aside for payment, whether dividends at the
rate so determined shall be cumulative, and whether the shares of such series
shall be entitled to any participating or other dividends in addition to
dividends at the rate so determined, and if so on what terms;
(3) the right, if any, of the Corporation to redeem shares of such
series and, if redeemable, the price, terms and manner of such redemption;
(4) the special and relative rights and preferences, if any, and the
amount or amounts per share, which the shares of such series shall be entitled
to receive upon any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation;
(5) the terms and conditions, if any, upon which shares of such series
shall be convertible into, or exchangeable for, shares of any other class or
classes or any other series of the same or any other class or classes of stock
of the Corporation, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any;
(6) the obligation, if any, of the Corporation to retire or purchase
shares of such series pursuant to a sinking fund or fund of a similar nature or
otherwise, and the terms and conditions of such obligation;
(7) the voting rights, if any, of shares of such series, which may be
full or limited;
(8) the limitations, if any, on the issuance of additional shares of
such series or any shares of any other series of the Preferred Stock; and
<PAGE>
(9) such other preferences, powers, qualifications, and special or
relative rights and privileges as shall be stated in the vote or votes providing
for the establishment of such series of Preferred Stock.
<PAGE>
ATTACHMENT 6
------------
A. CLASSIFICATION OF BOARD OF DIRECTORS
------------------------------------
This Article 6, Part A shall be effective only from and after the first
annual meeting of stockholders after August 23, 1990 (the "Public Offering
Date").
The number of directors of the Corporation shall be determined in the
manner provided in the by-laws.
Commencing with the election to be held at the first annual meeting of
stockholders after the Public Offering Date, the directors shall be divided by
the Board of Directors into three classes, as nearly equal in number as
possible. At the first annual meeting of stockholders after the Public Offering
Date, one class of directors shall be originally elected for a one-year term
expiring at the second annual meeting of stockholders after the Public Offering
Date, a second class of directors shall be originally elected for a two-year
term expiring at the third annual meeting of stockholders after the Public
Offering Date, and a third class of directors shall be originally elected for a
third-year term expiring at the fourth annual meeting of stockholders after the
Public Offering Date, with the members of each class to hold office until their
successors are elected and qualified. Commencing with the second annual meeting
of stockholders after the Public Offering Date, directors of each class the term
of which shall then expire shall be elected to hold office for a term expiring
at the third succeeding annual meeting of stockholders after their election and
until their successors are elected and qualified.
If the authorized number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of an
incumbent director.
Except as otherwise required by law or by these Articles of
Organization, any vacancy in the Board of Directors shall be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been elected expires.
Any director elected by the stockholders, or by the Board of Directors
to fill a vacancy, may be removed only for cause, after reasonable notice and
opportunity to be heard before the annual meeting of stockholders at which his
removal is considered and by the affirmative vote of the holders of at least
eighty percent (80%) of the combined voting power of the shares of capital stock
of the Corporation outstanding and entitled to vote for the election of
directors.
<PAGE>
Notwithstanding any other provision of these Articles of Organization,
or any provision of law which might otherwise permit a lesser vote or no vote,
the affirmative vote of the holders of at least eighty percent (80%) of the
combined voting power of the shares of capital stock of the Corporation
outstanding and entitled to vote for the election of directors shall be required
to alter, amend or repeal this Article 6, Section A.
B. MISCELLANEOUS.
--------------
The Corporation eliminates the personal liability of each director 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;
provided, however, that, to the extent provided by applicable law, this
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61 or 62 or
successor provisions of the Massachusetts Business Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
This provision shall not eliminate or limit the liability of a director of the
Corporation for any act or omission occurring prior to the date on which this
provision becomes effective. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal.
Each person who is or was or had agreed to become a director or officer
of the Corporation, or each such person who is or was serving or who had agreed
to serve at the request of the board of directors or an officer of the
Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation to the full
extent permitted by the Business Corporation Law of The Commonwealth of
Massachusetts or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the Corporation
may enter into one or more agreements with any person which provide for
indemnification greater or different than that provided in this paragraph. Any
repeal or modification of this paragraph shall not adversely affect any right or
protection existing hereunder immediately prior to such repeal or modification.
Meetings of the stockholders of the Corporation may be held anywhere in
the United States.
The directors of the Corporation may make, amend or repeal the by-laws
in whole or in part, except with respect to any provision thereof which by law
or the by-laws requires action by the stockholders.
<PAGE>
The whole or any part of the authorized but unissued shares of capital
stock of the Corporation may be issued at any time or from time to time by the
Board of Directors without further action by the stockholders.
The Corporation may become a partner in any business.
<PAGE>
We further certify that the foregoing restated articles of organization
effect no amendments to the articles of organization of the corporation as
heretofore amended, except amendments to the following articles 3 and 4.
(If there are no such amendments, state "None".)
Briefly describe amendments in space below:
1. Articles 3 is amended to eliminate Class A Preferred Stock, Class B
Preferred Stock, Class C Preferred Stock and Class D Preferred Stock.
2. Article 4 is amended to eliminate Article 4, Part C concerning
Designated Preferred Stock.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto
signed our names 23rd day of August in the year 1990.
/s/ Paul A. Margolis , President
- --------------------------------------------------------------------
/s/ John Campbell , 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 $400.00 having been paid, said articles are deemed
to have been filed with me this 23rd day of August, 1990.
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT
TO: Margaret A. Shukur, Esq.
Testa, Hurwitz & Thibeault
Exchange Place
53 State Street
Boston, MA 02109
Telephone: (617) 367-7500
Copy Mailed
<PAGE>
FORM CD-26-5M-8-83 FEDERAL IDENTIFICATION
NO. 04-2711580
------------------
The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, Paul A. Margolis , President and
Diane R. Tormey , Assistant Clerk of
Marcam Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
Located at 95 Wells Avenue, Newton, Massachusetts 02159
---------------------------------------------------------------------
do hereby certify that by unanimous consent of the Board of Directors on
April 5, 1991,
- ----------------------------------------
the following vote establishing and designating a series of a class of stock and
determining the relative rights and preferences thereof was duly adopted:
VOTED: That pursuant to authority expressly granted to and vested in the Board
of Directors by the Corporation's Articles of Organization, the Board of
Directors hereby creates a series of the Corporation's capital stock
consisting of one (1) share of the Corporation's Preferred Stock of the
Corporation, par value $1.00, which is hereby designated as the Series A
Preferred Stock, and hereby determines that the preferences, voting
powers, qualifications and special and relative rights and privileges of
such series A Preferred Stock shall be as set forth in Exhibit D attached
to this consent.
NOTE: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets must have a left-hand margin 1 inch wide for binding and shall be
8 1/2" x 11". Only one side should be used.
<PAGE>
EXHIBIT D
---------
1. Designation; Number of Shares. The class of Preferred Stock known as
"Series A Preferred Stock" shall consist of one (1) share.
2. Voting. On all matters submitted to a vote of stockholders of the
Corporation, the holder of the share of Series A Preferred Stock will have
the right to exercise that number of votes as shall equal the number of
shares of the Corporation's Common Stock that are issuable upon the
exchange for shares of the Corporation's Common Stock of the aggregate
number of Class A Special Shares (the "MC Class A Special Shares") of
Marcam Canada Holding Corporation (the "Subsidiary") as are outstanding as
of the close of business on the date on which the Corporation determines
the stockholders of record entitled to vote upon such matters. Except as
required by law, the Series A Preferred Stock and the Common Stock will
vote as a single class.
3. Dividends. The holder of the Series A Preferred Stock shall not be entitled
to receive any dividends.
4. Liquidation. In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, the holder of the Series
A Preferred Stock shall be entitled to be paid out of the assets of the
Corporation available for distribution, before any distribution or payment
is made upon any stock ranking on liquidation junior to the Series A
Preferred Stock, an amount equal to $1.00, subject to equitable adjustment
in the event of stock splits, stock dividends, combinations and the like
involving the Series A Preferred Stock (the "Series A Liquidation
Payment"). Upon any such liquidation, dissolution or winding up of the
Corporation, after the holder of Series A Preferred Stock shall have been
paid the amount to which it shall be entitled, the remaining net assets of
the Corporation may be distributed to the holders of stock ranking on
liquidation junior to the Series A Preferred Stock. Whenever the
distribution provided for in this paragraph shall be paid in property other
than cash, the value of such distribution shall be the fair market value of
such property as determined in good faith by the Board of Directors of the
Corporation. Written notice of such liquidation, dissolution or winding up,
stating a payment date, the amount of the Series A Liquidation Payments and
the place where said Series A Liquidation Payments shall be payable, shall
be given by mail, postage prepaid, not less than 5 days prior to the
payment date stated therein, to the holder of record of Series A Preferred
Stock, such notice to be addressed to such holder at its address as shown
by the records of the Corporation. For purposes hereof, the
<PAGE>
-2-
Common Stock shall rank on liquidation junior to the Series A Preferred
Stock.
5. Redemption. (a) The share of Series A Preferred Stock shall be redeemed by
the Corporation as described herein, at a price of $1.00 per share, subject
to equitable adjustment in the event of stock splits, stock dividends,
combinations and the like involving the Series A Preferred Stock (the
"Redemption Price"). Such redemption shall occur automatically and
simultaneously upon the issuance by the Corporation of its Common Stock in
exchange for the last outstanding MC Class A Special Share held by a person
other than Marcam.
(b) Promptly after the issuance by the Corporation of its Common Stock
in exchange for the last outstanding MC Class A Special Share held by a
person other than Marcam, the Corporation shall give written notice (the
"Redemption Notice") by mail, postage prepaid, to the holder of record (at
the close of business on the business day next preceding the day on which
the Redemption Notice is given) of the share of Series A Preferred Stock
notifying such holder of the redemption and specifying the Redemption
Price, the date on which the last outstanding MC Class A Special Share held
by a person other than Marcam was acquired by the Corporation (the
"Redemption Date") and the place and date (not to exceed 20 days from the
date such notice is given) where said Redemption Price shall be payable.
The Redemption Notice shall be addressed to such holder at his address as
shown by the records of the Corporation. From and after the close of
business on the Redemption Date, unless there shall have been a default in
the payment of the Redemption Price, all rights of the holder of share of
Series A Preferred Stock shall cease with respect to such share (except the
right to receive the Redemption Price), and such share shall not thereafter
be transferred on the books of the Corporation or be deemed to be
outstanding for any purpose whatsoever. If the Corporation does not have
funds legally available for redemption of the share of Series A Preferred
Stock on the Redemption Date, the share of Series A Preferred Stock shall
remain outstanding and entitled to all rights and preferences provided
herein. At any time thereafter when the Corporation has legally available
funds for the redemption of such share of Series A Preferred Stock, such
funds will be used to redeem such share.
(c) The share of Series A Preferred Stock redeemed pursuant to this
paragraph 5 or otherwise acquired by the Corporation in any manner
whatsoever shall upon any such reacquisition by the Corporation, be
automatically restored to the status of authorized but unissued shares of
Preferred Stock of the Corporation.
<PAGE>
-3-
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 5th day of April in the year 1991
/s/ Paul A. Margolis , President
- --------------------------------------------------------------
/s/ Diane R. Tormey , Assistant Clerk
- --------------------------------------------------------------
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and,
the filing fee in the amount of $100.00
having been paid, said certificate is
hereby filed this 8th day of
April, 1991.
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Margaret A. Shukur, Esq.
Testa, Hurwitz & Thibeault
----------------------------------
Exchange Place
----------------------------------
53 State Street
----------------------------------
Boston, MA 02109
----------------------------------
Telephone (617) 367-7500
----------------------------------
<PAGE>
The Commonwealth of Massachusetts
Office of the Secretary of State
Michael J. Connolly, Secretary
One Ashburton Place, Boston, Massachusetts 02108
Federal Identification
Number 04-2711580
CERTIFICATE OF CORRECTION
(GENERAL LAWS, CHAPTER 156B, SECTION 6A)
CORPORATE NAME: Marcam Corporation
----------------------------------------------------------------
DOCUMENT TO BE CORRECTED: Restated Articles of Organization
------------------------------------------------------
IT IS HEREBY CERTIFIED THAT THE ABOVE MENTIONED DOCUMENT WAS FILED WITH THE
OFFICE OF THE SECRETARY OF STATE ON 08/23/90.
PLEASE STATE THE INACCURACY OR DEFECT TO BE CORRECTED IN SAID DOCUMENT:
The reference under Article 5 reading "See Attachment 5" is inaccurate.
- --------------------------------------------------------------------------------
There is no Attachment 5 to the Restated Articles.
- --------------------------------------------------------------------------------
PLEASE STATE CORRECTED VERSION OF THE DOCUMENT:
Deletion of reference "See Attachment 5," with space following Article 5 to
- --------------------------------------------------------------------------------
remain blank.
- --------------------------------------------------------------------------------
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, WE SIGN OUR NAMES THIS
16TH DAY OF FEBRUARY IN THE YEAR 1993.
/s/ Paul A. Margolis PRESIDENT
--------------------------
/s/ Diane R. Tormey ASSISTANT CLERK
--------------------------
- --------------------------------------------------------------------------------
NOTE: IF THE INACCURACY OR DEFECT TO BE CORRECTED IS NOT APPARENT ON THE FACE OF
THE DOCUMENT, MINUTES OF THE MEETING SUBSTANTIATING THE ERROR MUST BE FILED WITH
THE CERTIFICATE. IF REQUIRED, ADDITIONAL INFORMATION MAY BE STATED ON A SEPARATE
8 1/2 X 11 INCH WHITE PAPER.
- --------------------------------------------------------------------------------
<PAGE>
FORM CD-26-5M-8-83
FEDERAL IDENTIFICATION
NO. 04-2711580
------------------
The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, Paul A. Margolis , President and
Diane R. Tormey , Assistant Clerk of
Marcam Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
Located at 95 Wells Avenue, Newton, Massachusetts 02159
---------------------------------------------------------------------
do hereby certify that at a meeting of the directors of the corporation held on
June 16 ,
- -------------------------
1993, the following vote establishing and designating a series of a class of
stock and determining the relative rights and preferences thereof was duly
adopted:
VOTED: That pursuant to the authority expressly granted to and vested in the
Board of Directors of the Corporation's Articles of Organization of the
Corporation, the Board of Directors hereby creates a series of the
Corporation's capital stock consisting of one (1) share of the
Corporation's Preferred Stock, par value $1.00 per share, which is
hereby designated as the Series C Preferred Stock, and hereby
determines that the preferences, voting powers, qualifications and
special and relative rights and privileges of such Series C Preferred
Stock shall be as set forth in Exhibit B attached to this consent.
NOTE: Votes for which the space provided above is not sufficient should be
set out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets must have a left-hand margin 1 inch wide for binding and shall
be 81/2" x 11". Only one side should be used.
<PAGE>
EXHIBIT B
---------
1. Designation; Number of Shares. The class of Preferred Stock known as
"Series C Preferred Stock" shall consist of one (1) share.
2. Voting. (a) On all matters submitted to a vote of stockholders of the
Corporation, the holder of the share of Series C Preferred Stock will
have the right to exercise that number of votes as shall equal the
number of shares of the Corporation's Common Stock that are issuable
upon the exchange for shares of the Corporation's Common Stock of the
aggregate number of Class A Special Shares (the "MC Class A Special
Shares") of Marcam Canada Holding Corporation (the "Subsidiary") as
are outstanding as of the close of business on the date on which the
Corporation determines the stockholders of record entitled to vote
upon such matters.
(b) Regardless of whether the law requires that any such matter
also be approved by the holders of each or any class or series of the
Corporation's capital stock voting as a separate class or series, the
holders of the Series B Preferred Stock, Series C Preferred Stock and
Common Stock of the Corporation shall vote together as a single class
on all matters submitted to a vote of stockholders of the Corporation.
The vote required by this paragraph 2(b) shall be in addition to any
vote required by law of the holders of each or any class or series of
the Corporation's capital stock, voting as separate classes or series.
(c) Whenever approval of a proposal is required by law to be
obtained from the holder of the Series C Preferred Stock voting
separately as a class or series, the holder of the Series C Preferred
Stock shall be entitled to vote both as contemplated by paragraph 2(b)
hereof and separately as a class on such proposal, and such proposal
shall not be approved unless such proposal is approved by (i) the
holder of the Series C Preferred Stock voting separately as a class on
such proposal, (ii) the vote required by paragraph 2(b) hereof and
(iii) any other vote required by law or the Corporation's articles of
organization or by-laws. Unless approval of a proposal is required by
law to be obtained from the holder of the Series C Preferred Stock
voting separately as a class or series, the holder of the Series C
Preferred Stock shall not be entitled to vote separately as a class on
any proposal submitted to the Corporation's stockholders generally or
the holders of any other class or series of the Corporation's capital
stock.
3. Dividends. The holder of the Series C Preferred Stock shall not be
entitled to receive any dividends.
<PAGE>
4. Liquidation. In the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the holder of
the Series C Preferred Stock shall be entitled to be paid out of the
assets of the Corporation available for distribution, before any
distribution or payment is made upon any stock ranking on liquidation
junior to the Series C Preferred Stock, an amount equal to $1.00,
subject to equitable adjustment in the event of stock splits, stock
dividends, combinations and the like involving the Series C Preferred
Stock (the "Series C Liquidation Payment"). Upon any such liquidation,
dissolution or winding up of the Corporation, after the holder of
Series C Preferred Stock shall have been paid the amount to which it
shall be entitled, the remaining net assets of the Corporation may be
distributed to the holders of stock ranking on liquidation junior to
the Series C Preferred Stock. Whenever the distribution provided for
in this paragraph shall be paid in property other than cash, the value
of such distribution shall be the fair market value of such property
as determined in good faith by the Board of Directors of the
Corporation. Written notice of such liquidation, dissolution or
winding up, stating a payment date, the amount of the Series C
Liquidation Payments and the place where said Series C Liquidation
Payments shall be payable, shall be given by mail, postage prepaid,
not less than 5 days prior to the payment date stated therein, to the
holder of record of Series C Preferred Stock, such notice to be
addressed to such holder at its address as shown by the records of the
Corporation. For purposes hereof, the Series B Preferred Stock shall
rank on liquidation pari passu with the Series C Preferred ---- -----
Stock and the Common Stock shall rank on liquidation junior to the
Series C Preferred Stock.
5. Redemption. (a) The share of Series C Preferred Stock shall be
redeemed by the Corporation as described herein, at a price of $1.00
per share, subject to equitable adjustment in the event of stock
splits, stock dividends, combinations and the like involving the
Series C Preferred Stock (the "Redemption Price"). Such redemption
shall occur automatically and simultaneously upon the issuance by the
Corporation of its Common Stock in exchange for the last outstanding
MC Class A Special Share held by a person other than the Corporation.
(b) Promptly after the issuance by the Corporation of its Common
Stock in exchange for the last outstanding MC Class A Special Share
held by a person other than the Corporation, the Corporation shall
give written notice (the "Redemption Notice") by mail, postage
prepaid, to the holder of record (at the close of business on the
business day next preceding the day on which the Redemption Notice is
given) of the share of Series C Preferred Stock notifying such holder
of the redemption and specifying the Redemption Price, the date on
which the last outstanding MC Class A Special Share held by a person
other than the Corporation
<PAGE>
was acquired by the Corporation (the "Redemption Date") and the place
and date (not to exceed 20 days from the date such notice is given)
where said Redemption Price shall be payable. The Redemption Notice
shall be addressed to such holder at his address as shown by the
records of the Corporation. From and after the close of business on
the Redemption Date, unless there shall have been a default in the
payment of the Redemption Price, all rights of the holder of share of
Series C Preferred Stock shall cease with respect to such share
(except the right to receive the Redemption Price), and such share
shall not thereafter be transferred on the books of the Corporation or
be deemed to be outstanding for any purpose whatsoever. If the
Corporation does not have funds legally available for redemption of
the share of Series C Preferred Stock on the Redemption Date, the
share of Series C Preferred Stock shall remain outstanding and
entitled to all rights and preferences provided herein. At any time
thereafter when the Corporation has legally available funds for the
redemption of such share of Series C Preferred Stock, such funds will
be used to redeem such share.
(c) The share of Series C Preferred Stock redeemed pursuant to
this paragraph 5 or otherwise acquired by the Corporation in any
manner whatsoever shall upon any such reacquisition by the
Corporation, be automatically restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation.
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this
17th day of June in the year 1993
/s/ Paul A. Margolis , President
- -------------------------------------------------------------
/s/ Diane R. Tormey , Assistant Clerk
- -------------------------------------------------------------
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the filing fee in the amount
of $100.00 having been paid, said certificate is hereby filed this 18th day
of June, 1993.
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Suanne M. Garnier, Esq.
Testa, Hurwitz & Thibeault
---------------------------------------
Exchange Place
---------------------------------------
53 State Street
---------------------------------------
Boston, MA 02109
---------------------------------------
Telephone (617) 248-7000
-----------------
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, SECRETARY
ONE ASHBURTON PLACE, BOSTON, MA 02108
FEDERAL IDENTIFICATION
No. 04-2711580
------------------
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, Paul A. Margolis , President and
Diane R. Tormey , Assistant Clerk
Marcam Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 95 Wells Avenue, Newton, Massachusetts 02159
---------------------------------------------------------------------
do hereby certify that at a meeting of the directors of the corporation held on
June 16, 1993. The following vote establishing and designating a series of class
of stock and determining the relative rights and preferences thereof was duly
adopted:
VOTED: That pursuant to authority expressly granted to and vested in the Board
of Directors by the Corporation's Articles of Organization, the Board
of Directors hereby creates a series of the Corporation's capital stock
consisting of one (1) share of the Corporation's Preferred Stock, par
value $1.00 per share, which is hereby designated as the Series B
Preferred Stock, and hereby determines that the preferences, voting
powers, qualifications and special and relative rights and privileges
of such Series B Preferred Stock shall be as set forth in Exhibit A
attached to this consent.
NOTE: Votes for which the space provided above is not sufficient should be
set out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets must have a left-hand margin 1 inch wide for biding and shall be
8 1/2x11". Only one side should be used
<PAGE>
EXHIBIT A
---------
1. Designation; Number of Shares. The class of Preferred Stock known as
"Series B Preferred Stock" shall consist of one (1) share.
2. Voting. (a) On all matters submitted to a vote of stockholders of the
Corporation, the holder of the share of Series B Preferred Stock will
have the right to exercise that number of votes as shall equal the
number of shares of the Corporation's Common Stock that are issuable
upon the exchange for shares of the Corporation's Common Stock of the
aggregate number of Class A Special Shares (the "Subsidiary Class A
Special Shares") of Marcam Investment Holding Corporation (the
"Subsidiary") as are outstanding as of the close of business on the
date on which the Corporation determines the stockholders of record
entitled to vote upon such matters.
(b) Regardless of whether the law requires that any such matter
also be approved by the holders of each or any class or series of the
Corporation's capital stock voting as a separate class or series, the
holders of the Series B Preferred Stock, Series C Preferred Stock and
Common Stock of the Corporation shall vote together as a single class
on all matters submitted to a vote of stockholders of the Corporation.
The vote required by this paragraph 2(b) shall be in addition to any
vote required by law of the holders of each or any class or series of
the Corporation's capital stock, voting as separate classes or series.
(c) Whenever approval of a proposal is required by law to be
obtained from the holder of the Series B Preferred Stock voting
separately as a class or series, the holder of the Series B Preferred
Stock shall be entitled to vote both as contemplated by paragraph 2(b)
hereof and separately as a class on such proposal, and such proposal
shall not be approved unless such proposal is approved by (i) the
holder of the Series B Preferred Stock voting separately as a class on
such proposal, (ii) the vote required by paragraph 2(b) hereof an
(iii) any other vote required by law or the Corporation's articles of
organization or by-laws. Unless approval of a proposal is required by
law to be obtained from the holder of the Series B Preferred Stock
voting separately as a class or series, the holder of the Series B
Preferred Stock shall not be entitled to vote separately as a class on
any proposal submitted to the Corporation's stockholders generally or
the holders of any other class or series of the Corporation's capital
stock.
3. Dividends. The holder of the Series B Preferred Stock shall not be
entitled to receive any dividends.
4. Liquidation. In the even of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the holder of
the Series B Preferred Stock shall be entitled to be paid out of the
assets of the Corporation available for distribution, before any
distribution or payment is made upon any stock ranking on liquidation
junior to the Series B Preferred Stock, an amount
<PAGE>
equal to $1.00, subject to equitable adjustment in the event of stock
splits, stock dividends, combinations and the like involving the
Series B Preferred Stock (the "Series B Liquidation Payment"). Upon
any such liquidation, dissolution or winding up of the Corporation,
after the holder of Series B Preferred Stock shall have been paid the
amount to which it shall be entitled, the remaining net assets of the
Corporation may be distributed to the holders of stock ranking on
liquidation junior to the Series B Preferred Stock. Whenever the
distribution provided for in this paragraph shall be paid in property
other than cash, the value of such distribution shall be the fair
market value of such property as determined in good faith by the Board
of Directors of the Corporation. Written notice of such liquidation,
dissolution or winding up, stating a payment date, the amount of the
Series B Liquidation Payments and the place where said Series B
Liquidation Payments shall be payable, shall be given by mail, postage
prepaid, not less than 5 days prior to the payment date stated
therein, to the holder of record of Series B Preferred Stock, such
notice to be addressed to such holder at its address as shown by the
records of the Corporation. For purposes hereof, the Series B
Preferred Stock shall rank on liquidation pari passu with the Series C
Preferred Stock and the Common Stock shall rank on liquidation junior
to the Series B Preferred Stock.
5. Redemption. (a) The share of Series B Preferred Stock shall be
redeemed by the Corporation as described herein, at a price of $1.00
per share, subject to equitable adjustment in the event of stock
splits, stock dividends, combinations and the like involving the
Series B Preferred Stock (the "Redemption Price"). Such redemption
shall occur automatically and simultaneously upon the issuance by the
Corporation of its Common Stock in exchange for the last outstanding
Subsidiary Class A Special Share held by a person other than the
Corporation.
(b) Promptly after the issuance by the Corporation of its Common
Stock in exchange for the last outstanding Subsidiary Class A Special
Share held by a person other than the Corporation, the Corporation
shall give written notice (the "Redemption Notice") by mail, postage
prepaid, to the holder of record (at the close of business on the
business day next preceding the day on which the Redemption Notice is
given) of the share of Series B Preferred Stock notifying such holder
of the redemption and specifying the Redemption Price, the date on
which the last outstanding Subsidiary Class A Special Share held by a
person other than the Corporation was acquired by the Corporation (the
"Redemption Date") and the place and date (not to exceed 20 days from
the date such notice is given) where said Redemption Price shall be
payable. The Redemption Notice shall be addressed to such holder at
his address as shown by the records of the Corporation. From and after
the close of business on the Redemption Date, unless there shall have
been a default in the payment of the Redemption Price, all rights of
the holder of share of Series B Preferred Stock shall cease with
respect to such share (except the right to receive the Redemption
Price), and such share shall not thereafter be transferred on the
books of the Corporation or be deemed to be outstanding for any
purpose whatsoever. If the Corporation does not have funds
<PAGE>
legally available for redemption of the share of Series B Preferred
Stock on the Redemption Date, the share of Series B Preferred Stock
shall remain outstanding and entitled to all rights and preferences
provided herein. At anytime thereafter when the Corporation has
legally available funds for the redemption of such share of Series B
Preferred Stock, such funds will be used to redeem such share.
(c) The share of Series B Preferred Stock redeemed pursuant to
this paragraph 5 or otherwise acquired by the Corporation in any
manner whatsoever shall upon any such reacquisition by the
Corporation, be automatically restored to the status of authorized but
unissued shares of Preferred Stock of the Corporation.
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 17th day of June in the year 1993.
/s/ Paul A. Margolis , President
- ---------------------------------------------------------------
/s/ Diane R. Tormey , Assistant Clerk
- ---------------------------------------------------------------
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26) I
hereby approve the within certificate and, the
filing fee in the amount of $100.00
having been paid, said certificate is hereby filed this
18th day of June, 1993
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Suanne M. Garnier, Esq.
-----------------------------------
Testa, Hurwitz & Thibeault
-----------------------------------
Exchange Place, 53 State Street
-----------------------------------
Boston, MA 02109
-----------------------------------
Telephone: (617) 248-7000
-----------------------------------
Copy Mailed
<PAGE>
Federal Identification
No. 04-2711580
THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
Secretary of State
One Ashburton Place
Boston, Massachusetts 02108
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
PURSUANT TO GENERAL LAWS, CHAPTER 156B, SECTION 82
The fee for filing this certificate is prescribed by General Laws, Chapter 156B,
Section 114.
Make check payable to the Commonwealth of Massachusetts.
We, Paul Margolis and Diane R. Tormey _________________________ , President and
Assistant Clerk of Marcam Corporation _______________________________________ ,
organized under the laws of Massachusetts and herein called the parent
corporation, do hereby certify as follows:
1. That the subsidiary corporation(s) to be merged into the parent corporations
are/is as follows:
NAME STATE OF ORGANIZATION DATE OF ORGANIZATION
Varnet Corporation Delaware 05/29/92
2. That the parent corporation owns at least ninety percent of the outstanding
shares of each class of the stock of each subsidiary corporation to be merged
into the parent corporation.
3. That in the case of each of the above-named corporations, the laws of the
state of its organization, if other than Massachusetts, permit the merger herein
provided for and that all action required under the laws of each such state in
connection with this merger has been duly taken. (If all the corporations are
organized under the laws of Massachusetts and if General Laws, Chapter 156B is
applicable to them, then Paragraph 3 may be deleted.)
*Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts, these articles are to be
signed by officers having corresponding powers and duties.
<PAGE>
4. That at a meeting of the directors of the parent corporation, the following
vote, pursuant to Subsection (a) of General Laws, Chapter 156B, Section 82, was
duly adopted:
See Continuation Sheets
<PAGE>
-2-
CONTINUATION SHEET 2A
Marcam Corporation
Articles of Merger of Parent
And Subsidiary Corporations
WHEREAS, the Corporation is a business corporation organized under the laws of
the Commonwealth of Massachusetts;
WHEREAS, Varnet Corporation is a business corporation organized under the laws
of the State of Delaware (hereinafter the "Subsidiary");
WHEREAS, the Corporation owns all of the outstanding capital stock of the
Subsidiary; and
WHEREAS, the merger of the Subsidiary into the Corporation by vote of the Board
of Directors of the Corporation is permitted under the Business Corporation Law
of the Commonwealth of Massachusetts and under Delaware General Corporation Law.
NOW, THEREFORE, pursuant to subsection (a) of Massachusetts General Laws Chapter
156B, Section 82 BE IT HEREBY
VOTED: That the Subsidiary shall be and it hereby is merged into the
Corporation, and that said merger be effective immediately upon
compliance with the laws of the Commonwealth of Massachusetts and
the State of Delaware, the time of such effectiveness being
hereinafter called the Effective Date.
VOTED: That the Corporation shall survive the merger herein contemplated
and shall continue to be governed by the laws of the Commonwealth
of Massachusetts, but that the separate corporate existence of the
Subsidiary shall cease forthwith on the Effective Date.
VOTED: That forthwith upon the Effective Date, each of the 1,000 shares
of Common Stock, par value $1.00 per share and the 2,500 shares of
Preferred Stock, par value $100 per share of the Subsidiary
presently issued and outstanding shall be retired.
VOTED: That at and after the Effective Date of the merger, all of the
estate, property, rights, privileges, powers, and franchises of
Subsidiary shall be vested in and held and enjoyed by the
Corporation as fully and entirely and without change or diminution
as the same were before held and enjoyed by Subsidiary in its
name.
<PAGE>
-3-
VOTED: That at and after the Effective Date of the merger, the
Corporation shall assume all of the obligations of the Subsidiary,
such that all debts, liabilities, and duties of Subsidiary shall
thenceforth attach to the Corporation and may be enforced against
it to the same extent as if such debts, liabilities, and duties
had been incurred or contracted by the Corporation.
<PAGE>
-4-
CONTINUATION SHEET 2B
Marcam Corporation
Articles of Merger of Parent
And Subsidiary Corporations
VOTED: That the Corporation does hereby agree that at and after the
Effective Date of the merger, it may be served with process in the
State of Delaware in any proceeding for enforcement of any
obligation of Subsidiary, as well as for enforcement of any
obligation of the Corporation arising from the merger herein
provided for, and the Corporation does hereby irrevocably appoint
the Secretary of State of the State of Delaware as its agent to
accept service of process in any such proceeding, and does hereby
specify the following address outside of the State of Delaware to
which a copy of such process shall be mailed by the Secretary of
State of the State of Delaware:
Marcam Corporation
95 Wells Avenue
Newton, Massachusetts 02159
Attn: President
VOTED: That this merger may be terminated and abandoned by action of the
Board of Directors of the Corporation at any time prior to the
Effective Date.
VOTED: That the proper officers of the Corporation be and hereby are
authorized (a) to prepare, execute and file a Certificate of
Ownership and Merger and any amendments, supplements or
attachments thereto with the office of the Secretary of State of
the State of Delaware, (b) to prepare, execute and file Articles
of Merger of Parent and Subsidiary Corporations and any
amendments, supplements or attachments thereto with the office of
the Secretary of State of the Commonwealth of Massachusetts, and
(c) to prepare, execute and file any and all other documents in
compliance with, or take any other actions required by, the laws
of the State of Delaware, the Commonwealth of Massachusetts, or
any other appropriate jurisdiction in connection with the merger
of Subsidiary with and into the Corporation.
VOTED: That the officers of the Corporation are, and each of them is,
hereby authorized and empowered, for and on behalf of the
Corporation, to execute and deliver any and all other documents,
papers or instruments and to do or cause to be done any and all
such acts and things as they, or any of them, may deem necessary,
appropriate or desirable to enable the Corporation to fully and
promptly to carry out the purposes and intents of the foregoing
resolutions.
<PAGE>
-5-
5. The effective date of the merger as specified by the vote set out under
Paragraph 4 is "immediately upon compliance with the laws of the Commonwealth of
Massachusetts."
IN WITNESS WHEREOF and under the penalties of perjury we have hereto
signed our names this 2nd day of September 1993.
/s/ Paul A. Margolis _________________, President
/s/ Diane R. Tormey __________________, Assistant Clerk
*Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts, these articles are to be
signed by officers having corresponding powers and duties.
<PAGE>
-6-
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(General Laws, Chapter 156B, Section 82)
------------------------------------
I hereby approve the within articles of merger of
parent and subsidiary corporations and, the filing
fee in the amount of $250,
having been paid, said articles are deemed
to have been filed with me this 8th
day of October, 1993
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION Photo
Copy of Merger To Be Sent:
Suanne M. Garnier, Esq.
Testa, Hurwitz & Thibeault
Exchange Place
53 State Street
Boston, MA 02109-2809
Telephone: (617) 248-7000
<PAGE>
-7-
FEDERAL IDENTIFICATION
NO. 04-27111580
<TABLE>
<CAPTION>
__________
Examiner The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL J. CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108
<S> <C>
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
__________ We, Paul Margolis , *President
Name -----------------------------------------------------------------------------------------------
Approved
and Diane R. Tormey , *Assistant Clerk
-----------------------------------------------------------------------------------------------
of Marcam Corporation ,
-----------------------------------------------------------------------------------------------
(Exact Name of Corporation)
located at: 95 Wells Avenue, Newton, MA 02159 ,
-------------------------------------------------------------------------------------------
(MASSACHUSETTS Address of Corporation)
do hereby certify that these ARTICLES OF AMENDMENT affecting Articles NUMBERED: 3
--------------------------------------------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended hereby)
of the Articles of Organization were duly adopted at a meeting held on February 22, 1994, by vote of:
6,278,201 shares of Common of 10,730,623 shares outstanding,
--------------- ------------------------------ ---------------------------------
type, class & series (if any)
shares of of shares outstanding, and
--------------- ------------------------------ ---------------------------------
type, class & series (if any)
shares of of shares outstanding,
--------------- ------------------------------ ---------------------------------
type, class & series (if any)
C [ ] (1) being at least a majority of each type, class or series outstanding and entitled to vote thereon:
P [ ]
M [ ]
R.A. [ ]
(1) For amendments adopted pursuant to Chapter 156B, Section 70.
(2) For amendments adopted pursuant to Chapter 156B, Section 71.
__________ Note: If the space provided under any Amendment or item on this form is
P.C. insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left margin of at least 1 inch for binding. Additions to more
than one Amendment may be continued on a single sheet so long as each Amendment
requiring each addition is clearly indicated.
</TABLE>
<PAGE>
To CHANGE the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
COMMON: COMMON: 15,000,000 $.01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PREFERRED: PREFERRED: 1,000,000 $1.00
Series A 1 $1.00
Series B 1 $1.00
Series C 1 $1.00
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Change the total authorized to:
- --------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- --------------------------------------------------------------------------------
COMMON: COMMON: 30,000,000 $.01
- -------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PREFERRED: PREFERRED: 1,000,000 $1.00
Series A 1 $1.00
Series B 1 $1.00
Series C 1 $1.00
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of the General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
LATER EFFECTIVE DATE: .
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed
our names this 11th day of April, in the year 1994.
/s/ Paul A. Margolis_________________________________________, *President
Paul A. Margolis
/s/ Diane R. Tormey__________________________________________, *Assistant Clerk.
Diane R. Tormey
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
================================================================================
I hereby approve the within articles of amendment
and, the filing fee in the amount of $15,000 having
been paid, said articles are deemed to have been
filed with me this 20th day of April, 1994.
/s/ Michael J. Connolly
MICHAEL J. CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT:
TO: Suanne M. Garnier, Esq.
--------------------------------------------------
Testa, Hurwitz & Thibeault
--------------------------------------------------
Exchange Place, 53 State Street
--------------------------------------------------
Boston, MA 02109
--------------------------------------------------
Telephone: (617) 248-7000
<PAGE>
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
DERAL IDENTIFICATION
NO. 04-2711580
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General laws, Chapter 156B, Section 26
We, Paul A. Margolis, ____________________________________________ President and
Diane R. Tormey, ______________________________________ Assistant Clerk of
Marcam Corporation _____________________________________________________________
(Name of Corporation)
located at 95 Wells Avenue, Newton, Massachusetts 02159 do hereby certify that
at a meeting of the directors of the corporation held on September 18, 1995, the
following vote establishing and designating a series of a class of stock and
determining the relative rights and preferences thereof was duly adopted:
VOTED: That pursuant to authority expressly granted to and vested in the Board
of Directors by the Corporation's Restated Articles of Organization, as
amended, the Board of Directors hereby creates a series of the
Corporation's capital stock consisting of 225,000 shares of the
Corporation's preferred stock, par value $1.00 per share, which is hereby
designated as the Series D Convertible Preferred Stock (the "Series D
Convertible Preferred Stock"), and hereby determines that the
preferences, voting rights, qualifications, and special and relative
rights and privileges of such series D Convertible Preferred Stock shall
be as set forth in Exhibit A to this consent.
NOTE: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be number 2A, 2B, etc. Continuation sheets
must have a left-hand margin inch wide for heading and shall be 8 1/2 x
11". Only one side should be used.
<PAGE>
EXHIBIT A
SERIES D CONVERTIBLE PREFERRED STOCK
1. Designation and Number of Shares. There shall be hereby established
the series of Preferred Stock designated and known as "Series D Convertible
Preferred Stock." The authorized number of shares of Series D Convertible
Preferred Stock shall be 225,000 shares.
2. Voting.
(a) General. Except as may be otherwise provided in these
terms of the Series D Convertible Preferred Stock or by law, the Series D
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class on all actions to be taken
by the stockholders of the Corporation. Each share of Series D Convertible
Preferred Stock shall entitle the holder thereof to such number of votes per
share on each such action as shall equal the number of shares of Common Stock
(including fractions of a share) into which each share of Series D Convertible
Preferred Stock is then convertible.
(b) Board Seats. If General Atlantic Partners 21, L.P., GAP
Coinvestment Partners, L.P. and any affiliate (as defined in Rule 12b-2 under
the Securities Exchange Act of 1934) thereof own in the aggregate (a) at least a
majority of the outstanding shares of Series D Convertible Preferred Stock and
(b) shares of Common Stock and/or Series D Convertible Preferred Stock or other
securities of the Company convertible into or exchangeable for shares of voting
capital stock of the Company that represent (after giving effect to any
adjustments) at least 10% of the total number of shares of Common Stock
outstanding on an as converted basis, the holders of the Series D Convertible
Preferred Stock, voting as a separate series, shall be entitled to elect one
director of the Corporation, which directorship shall be apportioned among the
classes of directors by the Board of Directors of the Corporation. The Series D
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class with respect to the
election of all of the other directors of the Corporation; provided, however,
that if the conditions specified in the first sentence of this paragraph 2(b)
necessary for the holders of the Series D Convertible Preferred Stock to have a
separate series vote for one director are not satisfied, the Series D
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class with respect to the
election of all of the directors of the Corporation. At any meeting (or in a
written consent in lieu thereof) held for the purpose of electing directors, the
presence in person or by proxy (or the written consent) of the holders of a
majority of the shares of Series D Convertible Preferred Stock then outstanding
shall constitute a quorum of the Series D Convertible Preferred Stock for the
election of the director to be elected solely by the holders of the Series D
Convertible Preferred Stock. A vacancy in the directorship elected by the
holders of the Series D Convertible Preferred Stock shall be filled only by vote
or written consent of the holders of the Series D Convertible Preferred Stock.
3. Dividends. The holders of the Series D Convertible Preferred Stock
shall be entitled to receive, out of funds legally available therefor, dividends
at the same rate as dividends (other
<PAGE>
than dividends paid in additional shares of Common Stock) are paid with respect
to the Common Stock (treating each share of Series D Convertible Preferred Stock
as being equal to the number of shares of Common Stock (including fractions of a
share) into which each share of Series D Convertible Preferred Stock is then
convertible).
4. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Series D Convertible Preferred Stock shall be entitled, before any distribution
or payment is made upon any stock ranking on liquidation junior to the Series D
Convertible Preferred Stock, to be paid an amount equal to the greater of (i)
$100 per share plus, in the case of each share, an amount equal to any dividends
declared but unpaid thereon, through the date payment thereof is made available,
or (ii) such amount per share as would have been payable had each such share
been converted to Common Stock pursuant to paragraph 6 immediately prior to such
liquidation, dissolution or winding up, and the holders of Series D Convertible
Preferred Stock shall not be entitled to any further payment (such amount
payable with respect to one share of Series D Convertible Preferred Stock being
sometimes referred to as the "Liquidation Payment" and with respect to all
shares of Series D Convertible Preferred Stock being sometimes referred to as
the "Liquidation Payments"). If upon such liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the assets to be
distributed among the holders of Series D Convertible Preferred Stock shall be
insufficient to permit payment to the holders of Series D Convertible Preferred
Stock of the amount distributable as aforesaid, then the entire assets of the
Corporation to be so distributed shall be distributed ratably among the holders
of Series D Convertible Preferred Stock. Upon any such liquidation, dissolution
or winding up of the Corporation, after the holders of Series D Convertible
Preferred Stock shall have been paid in full the amounts to which they shall be
entitled, the remaining net assets of the Corporation may be distributed to the
holders of stock ranking on liquidation junior to the Series D Convertible
Preferred Stock. Written notice of such liquidation, dissolution or winding up,
stating a payment date, the amount of the Liquidation Payments and the place
where said Liquidation Payments shall be payable, shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, not less than 10 days prior to the payment date stated
therein, to the holders of record of Series D Convertible Preferred Stock, such
notice to be addressed to each such holder at its address as shown by the
records of the Corporation. For purposes hereof, the Common Stock shall rank on
liquidation junior to the Series D Convertible Preferred Stock.
For purposes of this paragraph 4, a liquidation, dissolution or winding
up of the Corporation shall be deemed to include (i) the Corporation's sale of
all or substantially all of its assets or (ii)(x) the merger or consolidation of
the Corporation into or with any other corporation, or (y) the merger of any
other corporation into or with the Corporation, if the stockholders of the
Corporation prior to such merger or consolidation do not retain at least a
majority of the voting power of the surviving corporation. Nothing in this
paragraph 4 shall limit the rights of the holders of the Series D Convertible
Preferred Stock to convert their shares of Series D Convertible Preferred Stock
in accordance with the terms hereof.
The Series D Convertible Preferred stock shall, with respect to
distribution of assets and rights upon the liquidation, dissolution or winding
up of the Corporation, rank on a parity with
<PAGE>
any class or series of capital stock of the Corporation hereafter created which
expressly provides that it ranks on a parity with the Series D Convertible
Preferred Stock with respect to distribution of assets and rights upon the
liquidation, dissolution or winding up of the Corporation. The Series D
Convertible Preferred Stock shall, with respect to distribution of assets and
rights upon the liquidation, dissolution or winding up of the Corporation, rank
senior to each class or series of capital stock of the Corporation hereafter
created which do not expressly provide that it ranks on a parity with or senior
to the Series D Convertible Preferred Stock with respect to distribution of
assets and rights upon the liquidation, dissolution or winding up of the
Corporation.
5. Restrictions. At any time when shares of Series D Convertible
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
by the articles of organization, and in addition to any other vote required by
law or the articles of organization, without the approval of the holders of at
least a majority of the then outstanding shares of Series D Convertible
Preferred Stock, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a series, the Corporation will not:
(a) Create, issue or authorize the creation or issuance of any
additional class or series of shares of stock unless the same ranks junior to
the Series D Convertible Preferred Stock as to the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or increase the
authorized amount of the Series D Convertible Preferred Stock or increase the
authorized amount of any additional class or series of shares of stock unless
the same ranks junior to the Series D Convertible Preferred Stock as to the
distribution of assets on the liquidation, dissolution or winding up of the
Corporation, or create, issue or authorize the creation or issuance of any
obligation or security convertible into shares of Series D Convertible Preferred
Stock or into shares of any other class or series of stock unless the same ranks
junior to the Series D Convertible Preferred Stock as to the distribution of
assets on the liquidation, dissolution or winding up of the Corporation, whether
any such creation, issuance, authorization or increase shall be by means of
amendment to the articles of organization or by merger, consolidation or
otherwise; or
(b) Amend, alter or repeal its articles of organization to
adversely affect the rights of the holders of the Series D Convertible Preferred
Stock.
6. Conversions. The holders of shares of Series D Convertible
Preferred Stock shall have the following conversion rights:
(a) Right to Convert. Subject to the terms and conditions of
this paragraph 6, the holder of any share or shares of Series D Convertible
Preferred Stock shall have the right, at its option at any time, to convert any
such shares (or fractions thereof) of Series D Convertible Preferred Stock
(except that upon any liquidation of the Corporation the right of conversion
shall terminate at the close of business on the business day fixed for payment
of the amount distributable on the Series D Convertible Preferred Stock) into
such number of fully paid and nonassessable shares of Common Stock as is
obtained by (i) multiplying the number of shares of Series D Convertible
Preferred Stock so to be converted by $100 and (ii) dividing the result by
<PAGE>
the conversion price of $10 per share or, in case an adjustment of such price
has taken place pursuant to the further provisions of this paragraph 6, then by
the conversion price as last adjusted and in effect at the date any share or
shares of Series D Convertible Preferred Stock are surrendered for conversion
(such price, or such price as last adjusted, being referred to as the
"Conversion Price"). Such rights of conversion shall be exercised by the holder
thereof by giving written notice that the holder elects to convert a stated
number of shares of Series D Convertible Preferred Stock into Common Stock and
by surrender of a certificate or certificates for the shares so to be converted
to the Corporation at its principal office (or such other office or agency of
the Corporation as the Corporation may designate by notice in writing to the
holders of the Series D Convertible Preferred Stock) at any time during its
usual business hours on the date set forth in such notice, together with a
statement of the name or names (with address) in which the certificate or
certificates for shares of Common Stock shall be issued.
(b) Issuance of Certificates; Time Conversion Effected.
Promptly after the receipt of the written notice referred to in subparagraph
6(a) and surrender of the certificate or certificates for the share or shares of
Series D Convertible Preferred Stock to be converted, the Corporation shall
issue and deliver, or cause to be issued and delivered, to the holder,
registered in such name or names as such holder may direct, a certificate or
certificates for the number of whole shares of Common Stock issuable upon the
conversion of such share or shares of Series D Convertible Preferred Stock. To
the extent permitted by law, such conversion shall be deemed to have been
effected and the Conversion Price shall be determined as of the close of
business on the date on which such written notice shall have been received by
the Corporation and the certificate or certificates for such share or shares
shall have been surrendered as aforesaid, and at such time the rights of the
holder of such share or shares of Series D Convertible Preferred Stock shall
cease, and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares of
Common Stock represented thereby.
(c) Fractional Shares; Dividends; Partial Conversion. No
fractional shares of Common Stock shall be issued upon conversion of Series D
Convertible Preferred Stock into Common Stock and no payment or adjustment shall
be made upon any conversion on account of any cash dividends on the Common Stock
issued upon such conversion. At the time of each conversion, the Corporation
shall pay in cash an amount equal to all dividends (other than dividends paid in
additional shares of Common Stock) declared but unpaid on the shares of Series D
Convertible Preferred Stock surrendered for conversion to the date upon which
such conversion is deemed to take place as provided in subparagraph 6(b). If the
number of shares of Series D Convertible Preferred Stock represented by the
certificate or certificates surrendered pursuant to subparagraph 6(a) exceeds
the number of shares converted, the Corporation shall, upon such conversion,
execute and deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for the number of shares (or fractions thereof) of
Series D Convertible Preferred Stock represented by the certificate or
certificates surrendered which are not to be converted. If any fractional share
of Common Stock would, except for the provisions of the first sentence of this
subparagraph 6(c), be delivered upon such conversion, the Corporation, in lieu
of delivering such fractional share, shall pay to the holder surrendering the
Series D Convertible
<PAGE>
Preferred Stock for conversion an amount in cash equal to the current market
price of such fractional share as determined in good faith by the Board of
Directors of the Corporation.
(d) Subdivision or Combination of Common Stock. In case the
Corporation shall at any time subdivide (by any stock split, stock dividend or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such subdivision
shall be proportionately reduced, and, conversely, in case the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(e) Reorganization or Reclassification. If any capital
reorganization or reclassification of the capital stock of the Corporation
(other than a merger or consolidation of the Corporation in which the
Corporation is the surviving corporation and which does not result in a
reclassification or change of outstanding shares of Common Stock or a merger or
consolidation which is deemed to be a liquidation, dissolution or winding up of
the Corporation pursuant to paragraph 4) shall be effected in such a way that
holders of Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition of such
reorganization or reclassification, lawful and adequate provisions shall be made
whereby each holder of a share or shares of Series D Convertible Preferred Stock
shall thereupon have the right to receive, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore receivable upon the conversion of such share or shares
of Series D Convertible Preferred Stock, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore receivable upon such conversion had such
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
such holder to the end that the provisions hereof (including without limitation
provisions for adjustments of the Conversion Price) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise of such conversion rights.
(f) Notice of Adjustment. Upon any adjustment of the
Conversion Price, then and in each such case the Corporation shall give written
notice thereof, by delivery in person, certified or registered mail, return
receipt requested, telecopier or telex, addressed to each holder of shares of
Series D Convertible Preferred Stock at the address of such holder as shown on
the books of the Corporation, which notice shall state the Conversion Price
resulting from such adjustment, setting forth in reasonable detail the method
upon which such calculation is based.
(g) Other Notices. In case at any time:
(1) the Corporation shall declare any dividend upon its Common
Stock payable in cash or stock or make any other distribution to the
holders of its Common Stock;
(2) the Corporation shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any
class or other rights;
<PAGE>
(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation, or a
consolidation or merger of the Corporation with or into another entity or
entities, or a sale, lease, abandonment, transfer or other disposition of
all or substantially all its assets; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by delivery
in person, certified or registered mail, return receipt requested, telecopier or
telex, addressed to each holder of any shares of Series D Convertible Preferred
Stock at the address of such holder as shown on the books of the Corporation,
(i) at least 10 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding up and (ii) in the case of any
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding up, at least 10 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (ii) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, disposition, dissolution, liquidation or winding up, as the case may be.
(h) Stock to be Reserved. The Corporation will at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the conversion of Series D Convertible
Preferred Stock as herein provided, such number of shares of Common Stock as
shall then be issuable upon the conversion of all outstanding shares of Series D
Convertible Preferred Stock. The Corporation covenants that all shares of Common
Stock which shall be so issued shall be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof, and, without limiting the generality of the foregoing, the
Corporation covenants that it will from time to time take all such action as may
be requisite to assure that the par value per share of the Common Stock is at
all times equal to or less than the Conversion Price in effect at the time. The
Corporation will take all such action as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or regulation, or of any requirement of any national securities exchange
upon which the Common Stock may be listed. The Corporation will not take any
action which results in any adjustment of the Conversion Price if the total
number of shares of Common Stock issued and issuable after such action upon
conversion of the Series D Convertible Preferred Stock would exceed the total
number of shares of Common Stock then authorized by the articles of
organization.
<PAGE>
(i) No Reissuance of Series D Convertible Preferred Stock.
Shares of Series D Convertible Preferred Stock which are converted into shares
of Common Stock as provided herein shall not be reissued as shares of Series D
Convertible Preferred Stock.
(j) Issue Tax. The issuance of certificates for shares of
Common Stock upon conversion of Series D Convertible Preferred Stock shall be
made without charge to the holders thereof for any issuance tax in respect
thereof, provided that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the holder of the
Series D Convertible Preferred Stock which is being converted.
(k) Closing of Books. The Corporation will at no time close
its transfer books against the transfer of any Series D Convertible Preferred
Stock or of any shares of Common Stock issued or issuable upon the conversion of
any shares of Series D Convertible Preferred Stock in any manner which
interferes with the timely conversion of such Series D Convertible Preferred
Stock, except as may otherwise be required to comply with applicable securities
laws.
(l) Mandatory Conversion. If, at any time after September 30,
1998, for a period of not less than thirty (30) consecutive trading days, the
market value of shares of Common Stock on the principal securities exchange or
market on which such shares are then traded exceeds $40 per share (appropriately
adjusted to reflect the occurrence of any event referred to in paragraph 6(d)),
then the Corporation may elect that all then outstanding shares of Series D
Convertible Preferred Stock be mandatorily converted into shares of Common Stock
in accordance with this paragraph 6 by providing written notice thereof, by
delivery in person, certified or registered mail, return receipt requested,
telecopier or telex, addressed to each holder of shares of Series D Convertible
Preferred Stock at the address of such holder as shown on the books of the
Corporation, which notice shall state that the Corporation has made such
election and shall specify a date not more than 10 days nor less than 20 days
after the date of such notice on which all then outstanding shares of Series D
Convertible Preferred Stock shall be mandatorily converted into shares of Common
Stock in accordance with this paragraph 6. Effective at the close of business on
the date specified in such notice, all outstanding shares of Series D
Convertible Preferred Stock shall automatically convert to shares of Common
Stock on the basis set forth in this paragraph 6. Holders of shares of Series D
Convertible Preferred Stock so converted may deliver to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to such holders) during its usual
business hours, the certificate or certificates for the shares so converted. As
promptly as practicable thereafter, the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of whole shares of
Common Stock to which such holder is entitled, together with any cash dividends
and payment in lieu of fractional shares to which such holder may be entitled
pursuant to subparagraph 6(c). Until such time as a holder of shares of Series D
Convertible Preferred Stock shall surrender his or its certificates therefor as
provided above, such certificates shall be deemed to represent the shares of
Common Stock to which such holder shall be entitled upon the surrender thereof.
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this
18th day of September in the year 1995.
/s/ Paul A. Margolis __________________________________________, President
/s/ Diane R. Tormey ___________________________________________, Assistant Clerk
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $100.00 having been paid,
said certificate is hereby filed this 27th day of
September, 1995.
/s/ William Francis Galvin
William Francis Galvin
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO:
Mark H. Burnett, Esq.
-----------------------------------------------------
Testa Hurwitz & Thibeault
-----------------------------------------------------
High Street Tower, 125 High Street
-----------------------------------------------------
Boston, MA 02110
-----------------------------------------------------
Telephone: (617) 248-7000
<PAGE>
FORM CD-26-5M-8-83
FEDERAL IDENTIFICATION
NO. 04-2711580
The Commonwealth of
Massachusetts
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, Michael J. Quinlan , President and
Diane R. Tormey , Assistant Clerk of
Marcam Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 5 Wells Avenue, Newton, MA 02159
---------------------------------------------------------------------
do hereby certify that at a meeting of the directors of the corporation held
on June 26 ,
-------------------------
1996, the following vote establishing and designating a series of a class of
stock and determining the relative rights and preferences thereof was duly
adopted:
VOTED: That, subject to the approval by the holders of the Series D Convertible
Preferred Stock, par value $1.00 per share (the "Series D Convertible
Preferred Stock") of the Corporation and pursuant to authority expressly
granted to and vested in the Board of Directors by the Corporation's
Restated Articles of Organization, as amended, the Board of Directors
hereby creates a series of the Corporation's capital stock consisting of
100,000 shares of the Corporation's preferred stock, par value $1.00 per
share, which is hereby designated as the Series E Convertible Preferred
Stock (the "Series E Convertible Preferred Stock"), and hereby determines
that the preferences, voting rights, qualifications and special and
relative rights and privileges of such Series E Convertible Preferred
Stock shall be as set forth in Exhibit A to this consent.
NOTE: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets must have a left-hand margin 1 inch wide for binding and shall be
81/2" x 11". Only one side should be used.
<PAGE>
Exhibit A
SERIES E CONVERTIBLE PREFERRED STOCK
1. Designation and Number of Shares. There shall be hereby established
the series of Preferred Stock designated and known as "Series E Convertible
Preferred Stock." The authorized number of shares of Series E Convertible
Preferred Stock shall be 100,000 shares.
2. Voting.
(a) General. Except as may be otherwise provided in these
terms of the Series E Convertible Preferred Stock or by law, the Series E
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class on all actions to be taken
by the stockholders of the Corporation. Each share of Series E Convertible
Preferred Stock shall entitle the holder thereof to such number of votes per
share on each such action as shall equal the number of shares of Common Stock
(including fractions of a share) into which each share of Series E Convertible
Preferred Stock is then convertible.
(b) Board Seats. If General Atlantic Partners 32, L.P., GAP
Coinvestment Partners, L.P. and any affiliate (as defined in Rule 12b-2 under
the Securities Exchange Act of 1934) thereof own in the aggregate (a) less than
a majority of the outstanding shares of Series D Convertible Preferred Stock,
(b) at least a majority of the outstanding shares of Series E Convertible
Preferred Stock, and (c) shares of Common Stock and/or Series D Convertible
Preferred Stock and/or Series E Convertible Preferred Stock or other securities
of the Company convertible into or exchangeable for shares of voting capital
stock of the Company that represent (after giving effect to any adjustments) at
least 10% of the total number of shares of Common Stock outstanding on an as
converted basis, the holders of the Series E Convertible Preferred Stock, voting
as a separate series, shall be entitled to elect one director of the
Corporation, which directorship shall be apportioned among the classes of
directors by the Board of Directors of the Corporation. The Series E Convertible
Preferred Stock shall vote together with all other classes and series of stock
of the Corporation as a single class with respect to the election of all of the
other directors of the Corporation; provided, however, that if the conditions
specified in the first sentence of this paragraph 2(b) necessary for the holders
of the Series E Convertible Preferred Stock to have a separate series vote for
one director are not satisfied, the Series E Convertible Preferred Stock shall
vote together with all other classes and series of stock of the Corporation as a
single class with respect to the election of all of the directors of the
Corporation. At any meeting (or in a written consent in lieu thereof) held for
the purpose of electing directors, the presence in person or by proxy (or the
written consent) of the holders of a majority of the shares of Series E
Convertible Preferred Stock then outstanding shall constitute a quorum of the
Series E Convertible Preferred Stock for the election of the director to be
elected solely by the holders of the Series E Convertible Preferred Stock. A
vacancy in the directorship elected by the holders of the Series E Convertible
Preferred Stock shall be filled only by vote or written consent of the holders
of the Series E Convertible Preferred Stock.
<PAGE>
3. Dividends. The holders of the Series E Convertible Preferred Stock
shall be entitled to receive, out of funds legally available therefor, dividends
at the same rate as dividends (other than dividends paid in additional shares of
Common Stock) are paid with respect to the Common Stock (treating each share of
Series E Convertible Preferred Stock as being equal to the number of shares of
Common Stock (including fractions of a share) into which each share of Series E
Convertible Preferred Stock is then convertible).
4. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
Series E Convertible Preferred Stock shall be entitled, before any distribution
or payment is made upon any stock ranking on liquidation junior to the Series E
Convertible Preferred Stock, to be paid an amount equal to the greater of (i)
$100 per share plus, in the case of each share, an amount equal to any dividends
declared but unpaid thereon, through the date payment thereof is made available,
or (ii) such amount per share as would have been payable had each such share
been converted to Common Stock pursuant to paragraph 6 immediately prior to such
liquidation, dissolution or winding up, and the holders of Series E Convertible
Preferred Stock shall not be entitled to any further payment (such amount
payable with respect to one share of Series E Convertible Preferred Stock being
sometimes referred to as the "Liquidation Payment" and with respect to all
shares of Series E Convertible Preferred Stock being sometimes referred to as
the "Liquidation Payments"). If upon such liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the assets to be
distributed among the holders of Series E Convertible Preferred Stock shall be
insufficient to permit payment to the holders of Series E Convertible Preferred
Stock of the amount distributable as aforesaid, then the entire assets of the
Corporation to be so distributed shall be distributed ratably among the holders
of Series E Convertible Preferred Stock. Upon any such liquidation, dissolution
or winding up of the Corporation, after the holders of Series E Convertible
Preferred Stock shall have been paid in full the amounts to which they shall be
entitled, the remaining net assets of the Corporation may be distributed to the
holders of stock ranking on liquidation junior to the Series E Convertible
Preferred Stock. Written notice of such liquidation, dissolution or winding up,
stating a payment date, the amount of the Liquidation Payments and the place
where said Liquidation Payments shall be payable, shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, not less than 10 days prior to the payment date stated
therein, to the holders of record of Series E Convertible Preferred Stock, such
notice to be addressed to each such holder at its address as shown by the
records of the Corporation. For purposes hereof, the Common Stock shall rank on
liquidation junior to the Series E Convertible Preferred Stock.
For purposes of this paragraph 4, a liquidation, dissolution or winding
up of the Corporation shall be deemed to include (i) the Corporation's sale of
all or substantially all of its assets or (ii)(x) the merger or consolidation of
the Corporation into or with any other corporation, or (y) the merger of any
other corporation into or with the Corporation, if the stockholders of the
Corporation prior to such merger or consolidation do not retain at least a
majority of the voting power of the surviving corporation. Nothing in this
paragraph 4 shall limit the rights of the holders of the Series E Convertible
Preferred Stock to convert their shares of Series E Convertible Preferred Stock
in accordance with the terms hereof.
<PAGE>
The Series E Convertible Preferred Stock shall, with respect to
distribution of assets and rights upon the liquidation, dissolution or winding
up of the Corporation, rank on a parity with (i) the Corporation's Series D
Convertible Preferred Stock, $1.00 par value per share, and (ii) any class or
series of capital stock of the Corporation hereafter created which expressly
provides that it ranks on a parity with the Series E Convertible Preferred Stock
with respect to distribution of assets and rights upon the liquidation,
dissolution or winding up of the Corporation. The Series E Convertible Preferred
Stock shall, with respect to distribution of assets and rights upon the
liquidation, dissolution or winding up of the Corporation, rank senior to each
class or series of capital stock of the Corporation hereafter created which does
not expressly provide that it ranks on a parity with or senior to the Series E
Convertible Preferred Stock with respect to distribution of assets and rights
upon the liquidation, dissolution or winding up of the Corporation.
5. Restrictions. At any time when shares of Series E Convertible
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
by the articles of organization, and in addition to any other vote required by
law or the articles of organization, without the approval of the holders of at
least a majority of the then outstanding shares of Series E Convertible
Preferred Stock, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a series, the Corporation will not:
(a) Create, issue or authorize the creation or issuance of any
additional class or series of shares of stock unless the same ranks junior to
the Series E Convertible Preferred Stock as to the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or increase the
authorized amount of the Series E Convertible Preferred Stock or increase the
authorized amount of any additional class or series of shares of stock unless
the same ranks junior to the Series E Convertible Preferred Stock as to the
distribution of assets on the liquidation, dissolution or winding up of the
Corporation, or create, issue or authorize the creation or issuance of any
obligation or security convertible into shares of Series E Convertible Preferred
Stock or into shares of any other class or series of stock unless the same ranks
junior to the Series E Convertible Preferred Stock as to the distribution of
assets on the liquidation, dissolution or winding up of the Corporation, whether
any such creation, issuance, authorization or increase shall be by means of
amendment to the articles of organization or by merger, consolidation or
otherwise; or
(b) Amend, alter or repeal its articles of organization to
adversely affect the rights of the holders of the Series E Convertible Preferred
Stock.
6. Conversions. The holders of shares of Series E Convertible
Preferred Stock shall have the following conversion rights:
(a) Right to Convert. Subject to the terms and conditions of
this paragraph 6, the holder of any share or shares of Series E Convertible
Preferred Stock shall have the right, at its option at any time, to convert any
such shares (or fractions thereof) of Series E Convertible Preferred Stock
(except that upon any liquidation of the Corporation the right of conversion
shall
<PAGE>
terminate at the close of business on the business day fixed for payment
of the amount distributable on the Series E Convertible Preferred Stock) into
such number of fully paid and nonassessable shares of Common Stock as is
obtained by (i) multiplying the number of shares of Series E Convertible
Preferred Stock so to be converted by $100 and (ii) dividing the result by the
conversion price of $10 per share or, in case an adjustment of such price has
taken place pursuant to the further provisions of this paragraph 6, then by the
conversion price as last adjusted and in effect at the date any share or shares
of Series E Convertible Preferred Stock are surrendered for conversion (such
price, or such price as last adjusted, being referred to as the "Conversion
Price"). Such rights of conversion shall be exercised by the holder thereof by
giving written notice that the holder elects to convert a stated number of
shares of Series E Convertible Preferred Stock into Common Stock and by
surrender of a certificate or certificates for the shares so to be converted to
the Corporation at its principal office (or such other office or agency of the
Corporation as the Corporation may designate by notice in writing to the holders
of the Series E Convertible Preferred Stock) at any time during its usual
business hours on the date set forth in such notice, together with a statement
of the name or names (with address) in which the certificate or certificates for
shares of Common Stock shall be issued.
(b) Issuance of Certificates; Time Conversion Effected.
Promptly after the receipt of the written notice referred to in subparagraph
6(a) and surrender of the certificate or certificates for the share or shares of
Series E Convertible Preferred Stock to be converted, the Corporation shall
issue and deliver, or cause to be issued and delivered, to the holder,
registered in such name or names as such holder may direct, a certificate or
certificates for the number of whole shares of Common Stock issuable upon the
conversion of such share or shares of Series E Convertible Preferred Stock. To
the extent permitted by law, such conversion shall be deemed to have been
effected and the Conversion Price shall be determined as of the close of
business on the date on which such written notice shall have been received by
the Corporation and the certificate or certificates for such share or shares
shall have been surrendered as aforesaid, and at such time the rights of the
holder of such share or shares of Series E Convertible Preferred Stock shall
cease, and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become the holder or holders of record of the shares of
Common Stock represented thereby.
(c) Fractional Shares; Dividends; Partial Conversion. No
fractional shares of Common Stock shall be issued upon conversion of Series E
Convertible Preferred Stock into Common Stock and no payment or adjustment shall
be made upon any conversion on account of any cash dividends on the Common Stock
issued upon such conversion. At the time of each conversion, the Corporation
shall pay in cash an amount equal to all dividends (other than dividends paid in
additional shares of Common Stock) declared but unpaid on the shares of Series E
Convertible Preferred Stock surrendered for conversion to the date upon which
such conversion is deemed to take place as provided in subparagraph 6(b). If the
number of shares of Series E Convertible Preferred Stock represented by the
certificate or certificates surrendered pursuant to subparagraph 6(a) exceeds
the number of shares converted, the Corporation shall, upon such conversion,
execute and deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for the number of shares (or fractions thereof) of
Series E Convertible Preferred Stock represented by the certificate or
certificates surrendered which are not to be
<PAGE>
converted. If any fractional share of Common Stock would, except for the
provisions of the first sentence of this subparagraph 6(c), be delivered upon
such conversion, the Corporation, in lieu of delivering such fractional share,
shall pay to the holder surrendering the Series E Convertible Preferred Stock
for conversion an amount in cash equal to the current market price of such
fractional share as determined in good faith by the Board of Directors of the
Corporation.
(d) Subdivision or Combination of Common Stock. In case the
Corporation shall at any time subdivide (by any stock split, stock dividend or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such subdivision
shall be proportionately reduced, and, conversely, in case the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(e) Reorganization or Reclassification. If any capital
reorganization or reclassification of the capital stock of the Corporation
(other than a merger or consolidation of the Corporation in which the
Corporation is the surviving corporation and which does not result in a
reclassification or change of outstanding shares of Common Stock or a merger or
consolidation which is deemed to be a liquidation, dissolution or winding up of
the Corporation pursuant to paragraph 4) shall be effected in such a way that
holders of Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition of such
reorganization or reclassification, lawful and adequate provisions shall be made
whereby each holder of a share or shares of Series E Convertible Preferred Stock
shall thereupon have the right to receive, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore receivable upon the conversion of such share or shares
of Series E Convertible Preferred Stock, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore receivable upon such conversion had such
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
such holder to the end that the provisions hereof (including without limitation
provisions for adjustments of the Conversion Price) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise of such conversion rights.
(f) Notice of Adjustment. Upon any adjustment of the
Conversion Price, then and in each such case the Corporation shall give written
notice thereof, by delivery in person, certified or registered mail, return
receipt requested, telecopier or telex, addressed to each holder of shares of
Series E Convertible Preferred Stock at the address of such holder as shown on
the books of the Corporation, which notice shall state the Conversion Price
resulting from such adjustment, setting forth in reasonable detail the method
upon which such calculation is based.
(g) Other Notices. In case at any time:
(1) the Corporation shall declare any dividend upon its Common
Stock payable in cash or stock or make any other distribution to the
holders of its Common Stock;
<PAGE>
(2) the Corporation shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any
class or other rights;
(3) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation, or a
consolidation or merger of the Corporation with or into another entity or
entities, or a sale, lease, abandonment, transfer or other disposition of
all or substantially all its assets; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by delivery
in person, certified or registered mail, return receipt requested, telecopier or
telex, addressed to each holder of any shares of Series E Convertible Preferred
Stock at the address of such holder as shown on the books of the Corporation,
(i) at least 10 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding up and (ii) in the case of any
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding up, at least 10 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (ii) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, disposition, dissolution, liquidation or winding up, as the case may be.
(h) Stock to be Reserved. The Corporation will at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the conversion of Series E Convertible
Preferred Stock as herein provided, such number of shares of Common Stock as
shall then be issuable upon the conversion of all outstanding shares of Series E
Convertible Preferred Stock. The Corporation covenants that all shares of Common
Stock which shall be so issued shall be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof, and, without limiting the generality of the foregoing, the
Corporation covenants that it will from time to time take all such action as may
be requisite to assure that the par value per share of the Common Stock is at
all times equal to or less than the Conversion Price in effect at the time. The
Corporation will take all such action as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or regulation, or of any requirement of any national securities exchange
upon which the Common Stock may be listed. The Corporation will not take any
action which results in any adjustment of the Conversion Price if the total
number of shares of Common Stock issued and issuable after such action upon
<PAGE>
conversion of the Series E Convertible Preferred Stock would exceed the total
number of shares of Common Stock then authorized by the articles of
organization.
(i) No Reissuance of Series E Convertible Preferred Stock.
Shares of Series E Convertible Preferred Stock which are converted into shares
of Common Stock as provided herein shall not be reissued as shares of Series E
Convertible Preferred Stock.
(j) Issue Tax. The issuance of certificates for shares of
Common Stock upon conversion of Series E Convertible Preferred Stock shall be
made without charge to the holders thereof for any issuance tax in respect
thereof, provided that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than that of the holder of the
Series E Convertible Preferred Stock which is being converted.
(k) Closing of Books. The Corporation will at no time close
its transfer books against the transfer of any Series E Convertible Preferred
Stock or of any shares of Common Stock issued or issuable upon the conversion of
any shares of Series E Convertible Preferred Stock in any manner which
interferes with the timely conversion of such Series E Convertible Preferred
Stock, except as may otherwise be required to comply with applicable securities
laws.
(l) Mandatory Conversion. If, at any time after July 23, 1999,
for a period of not less than thirty (30) consecutive trading days, the market
value of shares of Common Stock on the principal securities exchange or market
on which such shares are then traded exceeds $40 per share (appropriately
adjusted to reflect the occurrence of any event referred to in paragraph 6(d)),
then the Corporation may elect that all then outstanding shares of Series E
Convertible Preferred Stock be mandatorily converted into shares of Common Stock
in accordance with this paragraph 6 by providing written notice thereof, by
delivery in person, certified or registered mail, return receipt requested,
telecopier or telex, addressed to each holder of shares of Series E Convertible
Preferred Stock at the address of such holder as shown on the books of the
Corporation, which notice shall state that the Corporation has made such
election and shall specify a date not more than 10 days nor less than 20 days
after the date of such notice on which all then outstanding shares of Series E
Convertible Preferred Stock shall be mandatorily converted into shares of Common
Stock in accordance with this paragraph 6. Effective at the close of business on
the date specified in such notice, all outstanding shares of Series E
Convertible Preferred Stock shall automatically convert to shares of Common
Stock on the basis set forth in this paragraph 6. Holders of shares of Series E
Convertible Preferred Stock so converted may deliver to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to such holders) during its usual
business hours, the certificate or certificates for the shares so converted. As
promptly as practicable thereafter, the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of whole shares of
Common Stock to which such holder is entitled, together with any cash dividends
and payment in lieu of fractional shares to which such holder may be entitled
pursuant to subparagraph 6(c). Until such time as a holder of shares of Series E
Convertible Preferred Stock shall surrender his or its certificates therefor as
provided above, such certificates shall be
<PAGE>
deemed to represent the shares of Common Stock to which such holder shall be
entitled upon the surrender thereof.
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 23rd day of July in the year 1996
/s/ Michael J. Quinlan , President
- --------------------------------------------------------------
/s/ Diane R. Tormey , Assistant Clerk
- --------------------------------------------------------------
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $100 having been paid,
said certificate is hereby filed this 23rd day of
July, 1996.
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO:
Mark H. Burnett, Esq.
-----------------------------------------------------
Testa, Hurwitz & Thibeault, LLP
-----------------------------------------------------
High Street Tower, 125 High Street
-----------------------------------------------------
Boston, MA 02110
-----------------------------------------------------
Telephone (617) 248-7000
------------------------------------------
Copy Mailed
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Office of the Massachusetts Secretary of State
Michael Joseph Connolly, Secretary
One Ashburton Place, Boston, MA 02108
Federal Identification
No. 04-2711580
----------------------
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF CLASS OF STOCK
We, Michael J. Quinlin , President and
Diane R. Tormey , Clerk of
Marcam Corporation
- --------------------------------------------------------------------------------
(Name of Corporation)
located at 95 Wells Avenue, Newton, Massachusetts 02159
---------------------------------------------------------------
do hereby certify that at a meeting of the directors of the corporation held on
December 3, 1996, the following vote establishing and designating a series of
class of stock and determining the relative rights and preferences thereof was
duly adopted:
VOTED: That pursuant to authority conferred upon the Board of Directors of the
Corporation by the provisions of the Restated Articles of Organization of
the Corporation, as amended, the proper officers of the Corporation are
authorized to file with the Secretary of the Commonwealth of
Massachusetts a Certificate of Vote of Directors establishing a series of
shares of Preferred Stock, $1.00 par value per share, and that of the
1,000,000 authorized shares of Preferred Stock $1.00 par value per hare,
30,000 shares are hereby designated as Series F Junior Participating
Preferred Stock, the relative rights, preferences, powers, privileges and
restrictions, qualification and limitations granted to or imposed upon
such series of shares to be as follows:
NOTE: Votes for which the space provided above is not sufficient should be
set out on continuation sheets to be numbered 2A, 2B, etc. Continuation
sheets must have a left-hand margin 1 inch wide for biding and shall be
8 1/2x11". Only one side should be used.
<PAGE>
Continuation Pages of Certificate of Vote of Directors establishing a series
of Preferred Stock designated Series F Junior Participating Preferred Stock
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series F Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 30,000.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock ranking prior and superior to the shares of Series F
Junior Participating Preferred Stock with respect to dividends, the holders of
shares of Series F Junior Participating Preferred Stock, in preference to the
holders of Common Stock, $.01 par value per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors, out of funds of the Corporation
legally available for the payment of dividends, quarterly dividends payable in
cash on March 31, June 30, September 30 and December 31 in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series F Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1.00 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 F Junior Participating Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend on Common
Stock payable in shares of Common Stock or effect a subdivision, combination or
consolidation of the outstanding 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 F Junior Participating 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 F Junior Participating Preferred Stock as provided in paragraph
(A) above 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 F Junior
Participating Preferred Stock before the dividend or distribution declared on
the Common Stock is paid or set apart; provided, however, that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any
<PAGE>
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the Series F Junior Participating
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 F Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series F Junior Participating Preferred Stock, 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 F Junior Participating 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 F Junior Participating
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 F Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series F Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series F Junior Participating 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 Common Stock payable in shares of Common Stock or
effect a subdivision, combination or consolidation of the outstanding 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 F Junior Participating Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, by law, or in any
other Certificate of Vote of Directors establishing a series of Preferred Stock
or any similar stock, the holders of shares of Series F Junior Participating
Preferred Stock, 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.
<PAGE>
(C) (i) If at any time dividends on any Series F Junior
Participating Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all shares of
Series F Junior Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period, all
holders of Preferred Stock (including holders of the Series F Junior
Participating Preferred Stock) with dividends in arrears in an amount equal to
six (6) quarterly dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the
holders of Series F Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of stockholders, and thereafter at annual
meetings of stockholders, provided that neither such voting right nor the right
of the holders of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of Directors shall be exercised unless the
holders of ten percent (10%) in number of shares of Preferred Stock outstanding
shall be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Preferred Stock
of such voting right. At any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series F Junior
Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during
an existing default period, have previously exercised their right to elect
Directors, the Board of Directors shall within twenty (20) Business Days after
such default amend the Corporation's by-laws to make provision for the election
of directors consistent with the provisions of this Section 3 and call a special
meeting of the holders of shares of the Series F Junior Participating Preferred
Stock and all other holders of Preferred Stock who are then entitled to
participate in the election of such Directors for the purpose of electing the
additional Directors provided by this Section 3. Notice of such meeting and of
any annual meeting at which holders of Preferred Stock are entitled to vote
pursuant to this paragraph (C)(iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to him at his last address as
the same appears on the books of the Corporation. Such meeting shall be called
for a time not earlier than 10 days and not later than 60 days after such order
or request. Notwithstanding the provisions of this
<PAGE>
paragraph (C)(iii), no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the next annual meeting
of the stockholders.
(iv) In any default period, the holders of Common
Stock, and other classes of stock of the Corporation, if applicable, shall
continue to be entitled to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of Directors may (except as
provided in paragraph (C)(ii) of this Section 3) be filled by vote of a majority
of the remaining Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have become vacant.
References in this paragraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default
period, (x) the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (z) the number of Directors
shall be such number as may be provided for in the Corporation's by-laws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the Corporation's articles of
organization or by-laws). Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding sentence may be filled by
a majority of the remaining Directors.
(D) Except as set forth herein, or as otherwise provided by
law, holders of Series F Junior Participating 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 F Junior Participating 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
F Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends on 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 F Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or
<PAGE>
winding up) with the Series F Junior Participating Preferred Stock, except
dividends paid ratably on the Series F Junior Participating 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 F Junior Participating
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 F Junior Participating
Preferred Stock;
(iv) purchase or otherwise acquire for consideration
any shares of Series F Junior Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series F Junior Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series F Junior
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of undesignated Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series F Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series F Junior Participating 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 (the "Series F Liquidation Preference"). Following the payment of
the full amount of the Series F Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series F Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series F Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as set forth in subparagraph
C below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to
<PAGE>
the Common Stock) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series F Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of Series F
Junior Participating Preferred Stock and Common Stock, respectively, holders of
Series F Junior Participating Preferred Stock and holders of shares of Common
Stock shall receive their ratable and proportionate share of the remaining
assets to be distributed in the ratio of the Adjustment Number to 1 with respect
to such Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series F Liquidation
Preference and the liquidation preferences of all other series of Preferred
Stock, if any, which rank on a parity with the Series F Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time declare or
pay any dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding 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 Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment 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.
(D) Neither the consolidation, merger or other business
combination of the Corporation with or into any other corporation nor the sale,
lease, exchange or conveyance of all or any part of the property, assets or
business of the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation for purposes of this Section 6.
Section 7. 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 the shares of
Series F Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in 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 Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding 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 F Junior
<PAGE>
Participating Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of Series F Junior Participating
Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series F Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred Stock as to
the payment of dividends and the distribution of assets upon liquidation,
dissolution, winding up or otherwise, unless the terms of any such series shall
provide otherwise.
Section 10. Amendment. The articles of organization of the Corporation
shall not be further amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series F Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least seventy-five percent of the
outstanding shares of Series F Junior Participating Preferred Stock, voting
together as a single class.
Section 11. Fractional Shares. Series F Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series F Junior Participating Preferred Stock.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 3rd day of December in the year 1996.
/s/ Michael J. Quinlan , President
- --------------------------------------------------------------------------------
/s/ Diane R. Tormey , Clerk
- --------------------------------------------------------------------------------
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $100.00
having been paid, said certificate is hereby filed this
5th day of December, 1996
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Erin E. Karzmer
----------------------------------------------
Testa, Hurwitz & Thibeault, LLP
----------------------------------------------
High Street Tower, 125 High Street
----------------------------------------------
Boston, MA 02110
----------------------------------------------
Telephone: (617) 248-7000
----------------------------------------------
<PAGE>
Federal Identification
No. 04-2711580
Fee: $250.00
THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(General Laws Chapter 156B, Section 82)
We, Michael J. Quinlan, , *President
-----------------------------------------------------------
and Diane R. Tormey , *Clerk
-----------------------------------------------------------
of Marcam Corporation ,
------------------------------------------------------------
organized under the laws of Massachusetts and herein called the parent
corporation, certify as follows:
1. That the subsidiary corporation(s) to be merged into the paren
corporation are:
NAME STATE OF ORGANIZATION DATE OF ORGANIZATION
Marcam World Trade Corporation Delaware November 22, 1989
Mapics, Inc. Delaware February 9, 1993
2. The parent corporation, at the date of the vote, owned not less than ninety
percent (90%) of the outstanding shares of each class of stock of the subsidiary
corporation or corporations with which it has voted to merge.
Item 3 below may be deleted if all the corporations are organized under the laws
of Massachusetts and if General Laws, Chapter 156B is applicable to them.
3. That in the case of each of the above named corporations, the laws of the
state or its organization, if other than Massachusetts permit the merger
described, and that all action required under the laws of each such state in
connection with this merger has been duly taken.
*Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts, these articles are to be
signed by officers having corresponding powers and duties.
<PAGE>
4. That at a meeting of the directors of the parent corporation, the following
vote, pursuant to General Laws, Chapter 156B, Section 82, Subsection (a) was
duly adopted:
See Exhibit A attached hereto.
<PAGE>
EXHIBIT A
TO ARTICLES
OF MERGER
Marcam Corporation Board Votes
Marcam World Trade Corporation Merger
VOTED: That Marcam World Trade Corporation, a Delaware
corporation and the wholly owned subsidiary of the
Corporation ("World Trade"), shall be merged with
and into the Corporation (the "World Trade Merger"),
and that the World Trade Merger shall be effective
immediately upon both the filing of a Certificate of
Ownership and Merger with, and the acceptance
thereof by, the Secretary of State of the State of
Delaware and the filing of Articles of Merger with,
and the acceptance thereof by, the Secretary of
State of the Commonwealth of Massachusetts, the time
of such effectiveness being hereinafter called the
World Trade Merger Effective Date.
VOTED: That the Corporation shall survive the World Trade
Merger and shall continue to be governed by the laws
of the Commonwealth of Massachusetts, but that the
separate corporate existence of World Trade shall
cease forthwith on the World Trade Merger Effective
Date.
VOTED: That forthwith upon the World Trade Merger Effective
Date, the one share of Common Stock, par value
$1,000 per share, of World Trade presently issued
and outstanding shall be retired.
VOTED: That at and after the World Trade Merger Effective
Date, the World Trade Merger shall have the effect
set forth in Sections 259, 260 and 261 of Title 8 of
the Delaware Code and Section 80 of Chapter 156B of
the Massachusetts General Laws.
VOTED: That the Corporation does hereby agree that at and
after the World Trade Merger Effective Date, it may
be served with process in the State of Delaware in
any proceeding for enforcement of any obligation of
World Trade, as well as for enforcement of any
obligation of the Corporation arising from the World
Trade Merger herein provided for, including any suit
or other proceeding to enforce the right of any
stockholder as determined in appraisal proceedings
pursuant to the provisions of Section 262 of Title 8
of the Delaware Code, and the Corporation does
hereby irrevocably appoint the Secretary of State of
the State of Delaware as its agent
<PAGE>
to accept service of process in any such suit or
proceeding, and does hereby specify the following
address outside of the State of Delaware to which a
copy of such process shall be mailed by the
Secretary of State of the State of Delaware: Marcam
Corporation, 95 Wells Avenue, Newton, Massachusetts
02159.
VOTED: That the World Trade Merger may be terminated and
abandoned by action of the Board of Directors of the
Corporation at any time prior to the World Trade
Merger Effective Date.
VOTED: That the proper officers of the Corporation be, and
each of them is hereby, authorized (a) to prepare,
execute and file a Certificate of Ownership and
Merger and any amendments, supplements or
attachments thereto with the office of the Secretary
of State of the State of Delaware, (b) Articles of
Merger and any amendments, supplements or
attachments thereto with the office of the Secretary
of State of the Commonwealth of Massachusetts, and
(c) to prepare, execute and file any and all other
actions required by the laws of the State of
Delaware, the Commonwealth of Massachusetts or any
other appropriate jurisdiction in connection with
the World Trade Merger.
VOTED: That the officers of the Corporation are, and each
of them is hereby, authorized and empowered, for and
on behalf of the Corporation, to execute and deliver
any and all other documents, papers or instruments
and to do or cause to be done any and all such acts
and things as they, or any of them, may deem
necessary, appropriate or desirable to enable the
Corporation to fully and promptly carry out the
purposes and intents of the foregoing votes.
<PAGE>
Mapics, Inc. Merger
VOTED: That Mapics, Inc., a Delaware corporation and the
wholly owned subsidiary of the Corporation
("Mapics"), shall be merged with and into the
Corporation (the "Mapics Merger"), and that the
Mapics Merger shall be effective immediately upon
both the filing of a Certificate of Ownership and
Merger with, and the acceptance thereof by, the
Secretary of State of the State of Delaware and the
filing of Articles of Merger with, and the
acceptance thereof by, the Secretary of State of the
Commonwealth of Massachusetts, the time of such
effectiveness being hereinafter called the Mapics
Merger Effective Date.
VOTED: That the Corporation shall survive the Mapics Merger
and shall continue to be governed by the laws of the
Commonwealth of Massachusetts, but that the separate
corporate existence of Mapics shall cease forthwith
on the Mapics Merger Effective Date.
VOTED: That forthwith upon the Mapics Merger Effective
Date, each of the 98 shares of Common Stock, par
value $.01 per share, the 69 shares of Class A
Common Stock, par value $.01 per share, the 100
shares of Class B Common Stock, par value $.01 per
share, and the 102 shares of Class C Common Stock,
par value $.01 per share, of Mapics presently issued
and outstanding shall be retired.
VOTED: That at and after the Mapics Merger Effective Date,
the Mapics Merger shall have the effect set forth in
Sections 259, 260 and 261 of Title 8 of the Delaware
Code and Section 80 of Chapter 156B of the
Massachusetts General Laws.
VOTED: That the Corporation does hereby agree that at and
after the Mapics Merger Effective Date, it may be
served with process in the State of Delaware in any
proceeding for enforcement of any obligation of
Mapics, as well as for enforcement of any obligation
of the Corporation arising from the Mapics Merger
herein provided for, including any suit or other
proceeding to enforce the right of any stockholder
as determined in appraisal proceedings pursuant to
the provisions of section 262 of Title 8 of the
Delaware Code, and the Corporation does hereby
irrevocably appoint the Secretary of State of the
State of Delaware as its agent to accept service of
process in any such suit or proceeding, and does
hereby specify the following address outside of the
State of Delaware to which a copy of such process
shall be mailed by the Secretary of State of the
State of Delaware: Marcam Corporation, 95 Wells
Avenue, Newton, Massachusetts 02159.
<PAGE>
VOTED: That the Mapics Merger may be terminated and
abandoned by action of the Board of Directors of the
Corporation at any time prior to the Mapics Merger
Effective Date.
VOTED: That the proper officers of the Corporation be, and
each of them is hereby, authorized (a) to prepare,
execute and file a Certificate of Ownership and
Merger and any amendments, supplements or
attachments thereto with the office of the Secretary
of State of the State of Delaware, (b) Articles of
Merger and any amendments, supplements or
attachments thereto with the office of the Secretary
of State of the Commonwealth of Massachusetts, and
(c) to prepare, execute and file any and all other
documents in compliance with, or take any other
actions required by the laws of the State of
Delaware, the Commonwealth of Massachusetts or any
other appropriate jurisdiction in connection with
the Mapics Merger.
VOTED: That the officers of the Corporation are, and each
of them is hereby, authorized and empowered, for and
on behalf of the Corporation, to execute and deliver
any and all other documents, papers or instruments
and to do or cause to be done any and all such acts
and things as they, or any of them, may deem
necessary, appropriate or desirable to enable the
Corporation to fully and promptly carry out the
purposes and intents of the foregoing votes.
<PAGE>
5. The effective date of the merger 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:
Section 6 below may be deleted if the parent corporation is organized under the
laws of Massachusetts.
6. [Paragraph deleted]
SIGNED UNDER THE PENALTIES OF PERJURY, this 9th day July, 1997,
Michael J. Quinlan /s/ Michael J. Quinlan, *President
Diane R. Tormey /s/ Diane R. Tormey, *Clerk
*Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts, these articles are to be
signed by officers having corresponding powers and duties.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(General Laws, Chapter 156B, Section 82)
------------------------------------
I hereby approve the within Articles of Merger of
Parent and Subsidiary Corporations and, the filing
fee in the amount of $250.00,
having been paid, said articles are deemed
to have been filed with me this 9th
day of July, 1997
Effective date:_____________________
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Megan M. Stride, Esq.
------------------------------------------------
Testa, Hurwitz & Thibeault, LLP
------------------------------------------------
125 High Street
------------------------------------------------
Boston, MA 02110
------------------------------------------------
Telephone: (617) 248-7000
------------------------------------
<PAGE>
FEDERAL IDENTIFICATION
NO. 04-2711580
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, Michael J. Quinlin , *President
-----------------------------------------------------------------
and Diane R. Tormey , *Clerk
----------------------------------------------------------------
of Marcam Corporation ,
(Exact name of corporation)
located at 95 Wells Avenue, Newton, MA 02159 ,
---------------------------------------------------------------------
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
1 & 3
- --------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6
being amended)
of the Articles of Organization were duly adopted at a meeting held on July, 17,
1997, by vote of:
10,856,632 shares of Common Stock of 14,603,010 shares outstanding,*
- ---------- ------------ ----------
(type, class
& series, if
any)
1**being at least a majority of each type, class or series outstanding and
entitled to vote thereon: / or This number includes 3,250,000 shares of Common
Stock issuable upon conversion of 225,000 shares of Series D Convertible
Preferred Stock issued and outstanding and 100,000 shares of Series E
Convertible Preferred Stock issued and outstanding. The corporation's Series D
and Series E Preferred Stock has voted together with the Common Stock on an
as-converted basis.
*Delete the inapplicable words.
**Delete the inapplicable clause.
1 For amendments adopted pursuant to Chapter 156B, Section 70.
2 For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate 8 1/2 x
11 sheets of paper with a left margin of at least 1 inch. Additions to more than
one article may be made on a single sheet so long as each article requiring each
addition is clearly indicated.
<PAGE>
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
<TABLE>
<CAPTION>
- ------------------------------------------------- -------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ------------------------------------------------- -------------------------------------------------------------------
- ----------------- ------------------------------- ------------ ------------------------------------------------------
<S> <C> <C> <C> <C>
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ----------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
Common: Common: 30,000,000 $.01
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
Preferred: Preferred: 1,000,000 $1.00
Series A 1 $1.00
Series B 1 $1.00
Series C 1 $1.00
Series D 225,000 $1.00
Series E 100,000 $1.00
Series F 30,000 $1.00
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
Change the total authorized to:
- ------------------------------------------------- --------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ------------------------------------------------- --------------------------------------------------------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ----------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
Common: Common: 50,000,000 $.01
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
Preferred: Preferred: 1,000,000 $1.00
Series A 1 $1.00
Series B 1 $1.00
Series C 1 $1.00
Series D 225,000 $1.00
Series E 100,000 $1.00
Series F 30,000 $1.00
- ----------------- ------------------------------- ------------ -------------------------------- ----------------------
</TABLE>
Voted: To authorize and approve an amendment to Article 3 of the Articles
of Organization to increase the number of shares of Common Stock
authorized for issuance in accordance with the terms of this
Article of Amendment.
Voted: To authorize and approve an amendment to Article 1 of the Articles
of Organization to change the name by which the corporation shall
be known from "Marcam Corporation" to "MAPICS, Inc."
<PAGE>
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
SIGNED UNDER THE PENALTIES OF PERJURY, this 28th day of July, 1997,
/s/ Michael J. Quinlan , *President . *Vice President,
- -------------------------------------------------
/s/ Diane R. Tormey , *Clerk / *Assistant Clerk.
- -------------------------------------------------
*Delete the inapplicable words.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within Articles of Amendment,
and the filing fee in the amount of $20,100 having
been paid, said article is deemed to have been filed
with me this 29th day of July
1997.
Effective date:
---------------------------------------
/s/ WILLIAM FRANCIS GALVIN
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Mark H. Burnett, Esq.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, MA 02110
(617) 248-7000
Exhibit 4.2
MARCAM CORPORATION
AMENDED AND RESTATED BY-LAWS
April 28, 1997
<PAGE>
BY-LAWS
TABLE OF CONTENTS
Page
----
ARTICLE I. TITLE AND LOCATION ................................1
ARTICLE II. SEAL ..............................................1
ARTICLE III. ARTICLES OF ORGANIZATION ..........................1
ARTICLE IV. STOCKHOLDERS ......................................2
Section 1. Annual Meeting ....................................2
Section 2. Special Meetings ..................................2
Section 3. Notice of Stockholders' Meetings ..................2
Section 4. Quorum ............................................2
Section 5. Proxies and Voting ................................2
Section 6. Action at Meeting .................................3
Section 7. Action Without Meeting ............................3
ARTICLE V. BOARD OF DIRECTORS ................................3
Section 1. Powers ............................................3
Section 2. Number of Directors ...............................3
Section 3. Election ..........................................4
Section 4. Vacancies .........................................4
Section 5. Enlargement by Board of
Directors' Action .................................4
Section 6. Tenure and Resignation ............................4
Section 7. Removal ...........................................4
Section 8. Regular Meetings ..................................4
Section 9. Special Meetings ..................................4
Section 10. Notice of Special Meetings ........................4
Section 11. Agenda ............................................5
Section 12. Quorum ............................................5
Section 13. Action by Consent .................................5
Section 14. Meeting by Telecommunications .....................5
ARTICLE VI. COMMITTEES ........................................5
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ARTICLE VII. OFFICERS ..........................................6
Section 1. Enumeration .......................................6
Section 2. Election ..........................................6
Section 3. Qualification .....................................6
Section 4. Tenure and Removal ................................6
Section 5. Resignation .......................................6
Section 6. Vacancies .........................................6
Section 7. Duties of the President ...........................6
Section 8. Duties of the Vice President ......................7
Section 9. Duties of the Treasurer ...........................7
Section 10. Duties of the Clerk ...............................7
Section 11. Duties of the Assistant Clerk .....................7
ARTICLE VIII. INDEMNIFICATION OF OFFICERS
AND DIRECTORS .....................................7
ARTICLE IX. CAPITAL STOCK .....................................8
Section 1. Description .......................................8
Section 2. Transfer of Shares ................................9
Section 3. Transfer Agent and Registrar
for Shares of Corporation .........................9
Section 4. Record Date .......................................10
Section 5. Loss of Certificates ..............................10
Section 6. Restrictions on Transfer ..........................10
Section 7. Reacquired Shares .................................10
Section 8. Miscellaneous .....................................10
ARTICLE X. DIVIDENDS .........................................11
ARTICLE XI. VOTING OF SHARES IN OTHER
CORPORATIONS ......................................11
ARTICLE XII. FISCAL YEAR .......................................11
ARTICLE XIII. ASSESSMENTS .......................................11
ARTICLE XIV. POWERS OF OFFICERS TO CONTRACT WITH
THE CORPORATION ...................................11
ARTICLE XV. STOCK OPTIONS .....................................12
ARTICLE XVI. MISCELLANEOUS PROVISIONS ..........................12
Section 1. Charitable Contributions ..........................12
Section 2. Evidence of Authority .............................12
<PAGE>
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Section 3. Execution of Instruments ..........................12
Section 4. Corporate Records .................................13
Section 5. Massachusetts Control Share
Acquisition Act ...................................13
ARTICLE XVII. AMENDMENTS ........................................13
<PAGE>
MARCAM CORPORATION
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ARTICLE I
TITLE AND LOCATION
Section 1. The name of this corporation is Marcam Corporation.
Section 2. The principal office of this corporation shall be located at
95 Wells Avenue, Newton, Massachusetts 02159. The corporation may also have
offices and places of business in such other places within and without the
Commonwealth as the Board of Directors may from time to time determine.
ARTICLE II
SEAL
The corporation shall have a seal consisting of a circular die with the
word "Massachusetts" together with the name of the corporation and the year of
its organization cut or engraved thereon. The Board of Directors may change the
form of the seal and the inscription thereon at any time.
ARTICLE III
ARTICLES OF ORGANIZATION
Section 1. The purposes of the corporation shall be as set forth in the
Articles of Organization; and these By-Laws, the powers of the corporation and
of its Directors and stockholders, and all matters concerning the conduct and
regulation of the business of the corporation shall be subject to such
provisions, if any, in regard thereto as are set forth in the Articles of
Organization.
Section 2. All references in these By-Laws to the Articles of
Organization shall be construed to mean the Articles of Organization as from
time to time amended.
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ARTICLE IV
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of
the corporation shall be held within six months of the end of the corporation's
fiscal year at the date, hour and place (within the United States) as shall be
determined from time to time by the board of directors and stated in the notice
of the meeting. In the event an annual meeting has not been held in accordance
with the foregoing provisions, a special meeting in lieu of the annual meeting
may be held with all the force and effect of an annual meeting.
Section 2. Special Meetings. Special meetings of stockholders may be
called by the President or by the Board of Directors. In addition, special
meetings of stockholders shall be called by the Clerk or Assistant Clerk, if
any, on written application of one or more stockholders who hold at least ten
percent (10%) of the capital stock entitled to vote at the meeting, unless the
corporation has a class of voting stock registered under the Securities Exchange
Act of 1934, as amended, in which case such a meeting shall be called by the
Clerk or Assistant Clerk only on written application of one or more stockholders
who hold at least 40% in interest of the capital stock entitled to vote at a
meeting. Special meetings of the stockholders shall be held at such place within
the United States as may be designated in the notice or waiver of notice of such
meeting.
Section 3. Notice of Stockholders' Meetings. A written notice of each
meeting of the stockholders, stating the place, day, and hour thereof and
purposes for which the meeting is called, shall be given by the Clerk or
Assistant Clerk, if any, to each stockholder entitled to vote thereat, and to
each stockholder, who, under the Articles of Organization or any amendment
thereof, 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 such stockholder at his address as it appears upon the books of the
corporation, at least seven (7) days before the meeting. In case of the death,
absence, incapacity or refusal of the Clerk and Assistant Clerk, if any, such
notices may be given by the President or by any other officer or by a person
designated either by the Clerk or by the person or persons calling the meeting,
or by the Board of Directors. No notice need be given to any stockholder if a
written waiver of notice, executed before or after the meeting by the
stockholder or his attorney thereunto authorized, is filed with the records of
the meeting. No notice of any adjourned stockholders' meeting shall be required.
Section 4. Quorum. At any meeting of the stockholders a quorum for the
transaction of business shall consist of one or more stockholders appearing in
person or by proxy and owning or representing a majority of all of the shares of
the corporation then outstanding and entitled to vote. If a quorum is not
present, a lesser number may make a reasonable adjournment of such meeting until
a quorum is obtained.
Section 5. Proxies and Voting. Except as otherwise required by law or
the Articles of Organization, stockholders entitled to vote shall have one (1)
vote for each share of stock held by
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them. A stockholder may vote either in person or by written proxy which shall be
signed by the stockholder, dated not more than six (6) months before the meeting
named therein, and filed at the meeting or any adjournment thereof before being
voted. Such proxy shall entitle the holder thereof to vote at any adjournment of
such meeting, but shall not be valid after the final adjournment of such
meeting. An executor, administrator, guardian, conservator, trustee or person in
any other representative or fiduciary capacity shall represent the shares of his
trust at all meetings of the corporation and may vote as a stockholder. A proxy
purporting to be executed by or on behalf of a stockholder shall be deemed valid
unless challenged at or prior to its exercise. 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.
Section 6. Action at Meeting. Except as otherwise required by law, the
Articles of Organization, or these By-Laws, any matter coming before any meeting
of the stockholders at which a quorum is present shall be adopted as the act and
deed of the stockholders if approved by the vote of the holders of a majority of
the shares present in person or by proxy at such meeting and entitled to vote
thereon; provided, however, that at all elections by stockholders a plurality of
the votes cast for any nominee or nominees shall elect. No ballot shall be
required for any election unless requested by a stockholder present in person or
by proxy at the meeting and entitled to vote in the election.
Section 7. Action Without Meeting. Any action required or permitted at
any meeting of the stockholders may be taken without a meeting if all
stockholders entitled to vote on the matter consent to the action in writing and
the consents are filed with the records of the meetings of stockholders. Such
consent shall be treated for all purposes as a vote at a meeting.
ARTICLE V
BOARD OF DIRECTORS
Section 1. Powers. The Board of Directors may exercise all the powers
of the corporation except such as are reserved to the stockholders by law, by
the Articles of Organization or by these By-Laws. The Directors shall have the
power to issue the whole or any part of the unissued balance of the authorized
capital stock of the corporation upon such terms and conditions as they shall
determine.
Section 2. Number of Directors. The number of Directors shall be
determined by vote of the Board of Directors or by the stockholders at their
annual meeting or at any special meeting the notice or waiver of notice of which
specifies the election or the fixing of the number of Directors as an item of
business for such meeting; provided, however, that the number of Directors shall
be not less than three (3), except that whenever there shall be only two (2)
stockholders, the number of Directors shall be not less than two (2) and
whenever there shall be one (1) stockholder the number of Directors shall be not
less than one (1).
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Section 3. Election. Except as otherwise provided by the Articles of
Organization, the Board of Directors shall be elected by the stockholders at
their annual meeting or at any special meeting the notice or waiver of notice of
which specifies the election of Directors as an item of business for such
meeting.
Section 4. Vacancies. During any vacancy in the Board of Directors, the
remaining Directors shall constitute the full Board of Directors, until such
vacancy is filled. Except as otherwise provided by the Articles of Organization,
any vacancy in the Board of Directors, other than a vacancy resulting from
enlargement of the Board by the Board of Directors, may be filled by the
stockholders or, in the absence of stockholder action, by the Directors;
provided, however, that any vacancy created by the removal of a Director or
Directors through stockholder action shall be filled by the stockholders at
their annual meeting or at a special meeting the notice or waiver of notice of
which specifies such action as an item of business for such meeting.
Section 5. Enlargement by Board of Directors' Action. The number of
Directors may be increased and one (1) or more additional Directors elected by
the vote of a majority of the Directors then in office.
Section 6. Tenure and Resignation. Except as otherwise provided by law,
by the Articles of Organization or by these By-Laws, Directors shall hold office
until the next annual meeting of stockholders and thereafter until their
successors are chosen and qualified. Any Director may resign by delivering or
mailing postage prepaid his written resignation to the corporation at its
principal office or to the President, Clerk or Assistant Clerk, if any. 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.
Section 7. Removal. Except as otherwise provided by the Articles of
Organization, a Director, whether elected by the stockholders or Directors, may
be removed from office with or without cause at any annual or special meeting of
stockholders by vote of a majority of the stockholders entitled to vote in the
election of the Directors, or for cause by a vote of a majority of the Directors
then in office; provided, however, that a Director may be removed for cause only
after reasonable notice and opportunity to be heard before the body proposing to
remove him.
Section 8. Regular Meetings. Regular meetings of the Board of Directors
may be held at such times and such places within or without the Commonwealth of
Massachusetts as the Board may, from time to time, determine. A regular meeting
of the Board of Directors shall be held without notice immediately after, and at
the same place as, the annual meeting of the stockholders or the special meeting
of the stockholders held in place of such annual meeting unless a quorum of the
Directors is not then present.
Section 9. Special Meetings. Special meetings of the Board of Directors
may be held at any time and at any place when called by the President,
Treasurer, or two or more Directors.
Section 10. Notice of Special Meetings. The Clerk or Assistant Clerk,
if any, shall give reasonable notice of each special meeting of the Board of
Directors to each Director. It shall be
<PAGE>
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reasonable notice to a Director to send notice by mail at least seventy-two (72)
hours before the meeting addressed to him at his usual or last known business or
residence address or to give notice to him in person or by telephone at least
twenty-four (24) hours before the meeting. In case of the death, absence,
incapacity or refusal of the Clerk and Assistant Clerk, if any, notice shall be
given by the person designated by the Board of Directors to act in the absence
of the Clerk, or by the President or Treasurer, or, by the officer or Directors
calling the meeting. Notice need not be given to any Director if a written
waiver of notice, executed by him before or after the meeting or meetings, 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.
Section 11. Agenda. Any lawful business whatsoever may be transacted at
a meeting of the Board of Directors, notwithstanding the nature of the business
may not have been specified in the notice or waiver of notice of the meeting.
Section 12. Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business, but a lesser number may
adjourn any meeting from time to time, and the meeting may be held as adjourned
without further notice; provided, however, that absent directors are given
reasonable notification, either in writing, or orally, of the time and place to
which said adjournment is made. Any motion adopted by vote of the majority of
the Directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors. The assent in writing of any Director to any vote or
action of the Directors taken at any meeting, whether or not a quorum was
present and whether or not the Director had or waived notice of the meeting,
shall have the same effect as if the Director so assenting was present at such
meeting and voted in favor of such vote or action.
Section 13. Action by Consent. Any action by the Directors may be taken
without a meeting if all the Directors consent to the action in writing and the
consents are filed with the records of the Directors' meetings. Such consent
shall be treated for all purposes as a vote of the Directors.
Section 14. Meeting by Telecommunications. Members of the Board of
Directors or any committee elected thereby may participate in a meeting of such
Board or committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other at the same time and participation by such means shall constitute
presence in person at the meeting.
ARTICLE VI
COMMITTEES
The Board of Directors may, by the affirmative vote of a majority of
the Directors then in office, appoint 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-
<PAGE>
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Laws they are prohibited from delegating. A majority of any such committee may
determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board of Directors shall have
power at any time to fill vacancies in, change the membership of, or discharge
any such committee. The Board of Directors shall have power to rescind any
action of any committee, but no such recision shall have retroactive effect.
ARTICLE VII
OFFICERS
Section 1. Enumeration. The officers shall consist of a President, a
Treasurer, a Clerk and such other officers and agents, with such duties and
powers as the Board of Directors may, in their discretion, appoint. Without
limiting the foregoing, the President may designate one or more employees of the
corporation having the title of vice president, but who shall not be officers of
the corporation, who shall hold such title at the pleasure of the President and
who shall have such powers and duties as the President may from time to time
designate.
Section 2. Election. The President, Treasurer and Clerk shall be
elected annually by the Directors at their first meeting following the annual
meeting of the stockholders. Other officers may be chosen by the Directors at
such meeting or at any other meeting.
Section 3. Qualification. An officer may, but need not, be a Director
or stockholder. Any two (2) or more offices may be held by 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. The premiums for such bonds may be paid by the corporation.
Section 4. Tenure and Removal. The term of office of all officers shall
be until the next annual meeting and until their respective successors are
elected and qualify. Any officer may be removed from office, with or without
cause, by the affirmative vote of a majority of the Directors then in office;
provided, however, 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.
Section 5. Resignation. Any officer may resign by delivering or mailing
postage prepaid his written resignation to the corporation at its principal
office or to the President, Clerk or Assistant Clerk, if any, 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 event.
Section 6. Vacancies. A vacancy in any office arising from any cause
may be filled for the unexpired portion of the term by the Board of Directors.
Section 7. Duties of the President. The President shall be the chief
executive officer of the corporation. Except as otherwise voted by the Board, he
shall preside at all meetings of the
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stockholders and of the Board of Directors at which he is present and shall have
such duties and powers as are commonly incident to this office and such duties
and powers as the Board of Directors shall from time to time designate.
Section 8. Duties of the Vice Presidents. The Vice Presidents shall
have such duties and powers as the Board of Directors may from time to time
designate.
Section 9. Duties of the Treasurer. The Treasurer, subject to the
direction and under the supervision and control of the Board of Directors, shall
have general charge of the financial concerns of the corporation and the care
and custody of the funds and valuable papers of the corporation, except his own
bond, if any. He shall keep or cause to be kept full and accurate records of
account which shall be the property of the corporation, and which shall be
always open to the inspection of each elected officer and Director of the
corporation. He shall deposit or cause to be deposited all funds of the
corporation in such depository or depositories as may be authorized by the Board
of Directors. The Treasurer shall have the power to endorse for deposit or
collection all notes, checks, drafts and other negotiable instruments payable to
the corporation. The Treasurer shall have the power to borrow money and enter
into and execute arrangements as to advances, loans and credits to the
corporation. He shall perform such other duties as are incidental to his office,
and such other duties as may be assigned to him by the Board of Directors.
Section 10. Duties of the Clerk. The Clerk shall attend the meetings of
the stockholders and Directors and shall record in the book of records of this
corporation an accurate record of the proceedings of the stockholders and
Directors at their respective meetings. The record books shall be open at
reasonable times to the inspection of any stockholder, Director or officer. The
Clerk shall notify the stockholders and Directors, when required by law or by
these By-Laws, of their respective meetings, and shall perform such other duties
as the directors and stockholders may from time to time prescribe. He shall have
the custody and charge of the corporate seal, and shall affix the seal of the
corporation to all instruments requiring such seal, and shall certify under the
corporate seal the proceedings of the Directors and of the stockholders, when
required. In the absence of the Clerk at any such meeting, a Temporary Clerk
shall be chosen who shall record the proceedings of the meeting in the aforesaid
books.
Section 11. Duties of the Assistant Clerk. In the absence or incapacity
of the Clerk, the Assistant Clerk, if any, otherwise a Temporary Clerk
designated by the Board of Directors, shall perform the duties and have the
powers of the Clerk. The Assistant Clerk shall have such other duties and powers
as the Board of Directors may from time to time designate.
ARTICLE VIII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
The corporation may indemnify each person who is or was a Director,
officer, employee or other agent of the corporation, or of any other
organization in which the corporation owns
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shares or of which it is a creditor, which he served as such at the request of
the corporation against any and all liability and reasonable expense that may be
incurred by him in connection with, or resulting from, any claim, action, suit,
or proceeding (whether brought by or in the name of the corporation or such
other organization or otherwise), civil or criminal, or in connection with an
appeal relating thereto, in which he may become involved, as a party or
otherwise, by reason of his being or having been a Director, officer, employee
or other agent of the corporation or of such other organization, or by reason of
any past or future action taken in his capacity as such Director, officer,
employee or other agent, whether or not he continues to be such at the time such
liability or expense is incurred, provided such person acted, in good faith, in
what he reasonably believed to be the best interests of the corporation or such
other organization, as the case may be, and provided also that in any criminal
action or proceeding he had no reasonable cause to believe that his conduct was
unlawful. No indemnification shall be provided for any person with respect to
any matter as to which he shall have been adjudicated in any proceeding not to
have acted in good faith in the reasonable belief that his action was in the
best interests of the corporation. As used in this Article, the terms
"liability" and "expense" shall include, but shall not be limited to, counsel
fees and disbursements and amounts of judgments, fines, or penalties and amounts
paid in settlement, by a Director, officer, employee or other agent, other than
amounts paid to the corporation itself or to such other organization served at
the corporation's request. Any such Director, officer, employee or other agent
referred to in this Article who has been wholly successful, on the merits or
otherwise, with respect to any claim, action, suit, or proceeding of the
character described herein shall be entitled to indemnification as of right.
Subject to the provisions of the preceding sentences, any indemnification
hereunder shall be made at the discretion of the corporation, but only if (1)
the Board, acting by a quorum consisting of Directors who are not parties to (or
who have been wholly successful with respect to) such claim, action, suit, or
proceeding, shall find that the Director, officer, employee or other agent has
met the standards of conduct set forth in the first sentence of this Article, or
(2) if an independent quorum does not exist, independent legal counsel (who may
be the regular counsel of the corporation) shall deliver to it their written
advice that, in their opinion, such Director, officer, employee or other agent
has met such standards. Expense incurred with respect to any such claim, action,
suit, or proceeding may be advanced by the corporation prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount unless it shall ultimately be determined that he
is entitled to indemnification under this Article. The rights of indemnification
provided in this Article shall be in addition to any rights to which any person
concerned may otherwise be entitled by contract or as a matter of law, and shall
inure to the benefit of their heirs, executors, and administrators of any such
person.
ARTICLE IX
CAPITAL STOCK
Section 1. Description. Each stockholder shall be entitled to a
certificate of the capital stock of the corporation owned by him in such form as
shall in conformity to law be prescribed from time to time by the Board of
Directors. Each certificate shall be signed by the President or Vice President
and the Treasurer or Assistant Treasurer, shall bear the seal of the
corporation,
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and shall express on its face its number, date of issue, class, the number of
shares for which, and the name of the person to whom, it is issued. The
signature of the President, Vice President, Treasurer, and Assistant Treasurer
may be facsimile if the stock certificate is signed by a Transfer Agent, or by a
Registrar, other than a Director, officer or employee of the corporation.
If an officer who has signed, or whose facsimile signature has been
placed on, a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued with the same effect as if he were such
officer at the time of its issue.
Section 2. Transfer of Shares. Title to a certificate of stock and to
the shares represented thereby shall be transferred only by delivery of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of
attorney to sell, assign or transfer the same or the shares represented thereby.
Upon surrender of a certificate for the shares being transferred a new
certificate or certificates shall be issued according to the directions of the
parties. The person registered on the books of the corporation as the owner of
shares shall have the exclusive right to receive dividends thereon and to vote
thereon as such owner, and, except only as may be otherwise required by law, may
in all respects be treated by the corporation as the exclusive owner thereof and
the holder in fact thereof, and the corporation shall not be bound to recognize
any equitable or other claim to, or interest in, such shares on the part of any
other person except as may be otherwise expressly provided by law.
Section 3. Transfer Agent and Registrar for Shares of Corporation. The
Board of Directors may appoint a Transfer Agent and a Registrar of the
certificates of the corporation. The Transfer Agent shall maintain, among other
records, a Stockholders' Ledger, setting forth, among other things, the names
and addresses of the holders of all issued shares of the corporation, the number
of shares held by each, the certificate numbers representing such shares, and
the date of issue of the certificates representing such shares. The Registrar
shall maintain, among other records, a Share Register, setting forth, among
other things, the total number of shares of each class of shares which the
corporation is authorized to issue, and the total number of shares actually
issued. The Stockholders' Ledger and the Share Register are hereby identified as
the Stock Transfer Books of the corporation; but as between the Stockholders'
Ledger and the Share Register, the names and addresses of stockholders, as they
appear on the Stockholders' Ledger maintained by the Transfer Agent, shall be
the official list of stockholders of record of the corporation. The name and
address of each stockholder of record, as they appear upon the Stockholders'
Ledger, shall be conclusive evidence of who are the stockholders entitled to
receive notice of the meetings of stockholders, to vote at such meetings, to
examine a complete list of the stockholders entitled to vote at meetings, and to
own, enjoy and exercise any other property or rights deriving from such shares
against the corporation. Stockholders, but not the corporation, its Directors,
officers, agents or attorneys, shall be responsible for notifying the Transfer
Agent, in writing, of any changes in their names or addresses from time to time,
and failure to do so will relieve the corporation, its other stockholders,
Directors, officers, agents and attorneys, and its Transfer Agent and Registrar,
of liability for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or address other than
the name and address appearing in the Stockholders' Ledger maintained by the
Transfer Agent.
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Section 4. Record Date. The Board of Directors may fix in advance a
time which shall not be more than sixty (60) days before the date of any
dividend, or making any distribution to stockholders, as 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 meetings and any adjournment thereof, or to
receive such dividend or distribution, or to give such consent or dissent. 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 a record date, the Board of Directors may for any
such purpose close the Stock Transfer Books for all or any part of such period.
Section 5. Loss of Certificates. In case of the loss, destruction or
mutilation of a certificate of stock, a replacement certificate may be issued in
place thereof upon such terms as the Board of Directors may prescribe,
including, in the discretion of the Board of Directors, a requirement of bond
and indemnity to the corporation.
Section 6. Restrictions on Transfer. 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 the fact of the restriction noted conspicuously on the
certificate and shall also set forth on the face or back either the full text of
the restriction or a statement that the corporation will furnish a copy to the
holder of such certificate upon written request and without charge.
Section 7. Reacquisition of Stock. Shares of stock previously issued
which have been reacquired by the Corporation, shall be restored to the status
of authorized but unissued shares without amendment of the Articles of
Organization.
Section 8. Miscellaneous. The amount and classes of the capital stock
and the par value, if any, of the shares, shall be as fixed in the Articles of
Organization. At all times when there are two (2) or more classes of stock, the
several classes of stock shall conform to the description and the terms and have
the respective preferences, voting powers, restrictions and qualifications set
forth in the Articles or Organization and these By-Laws. Every certificate
issued when the corporation is authorized to issue more than one (1) 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.
<PAGE>
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ARTICLE X
DIVIDENDS
Except as otherwise required by law or by the Articles of Organization,
the Board of Directors may in its discretion declare and pay dividends upon the
capital stock of the Corporation from funds lawfully available therefor.
Dividends may be paid in cash, property or shares of the capital stock of the
Corporation or its subsidiaries.
ARTICLE XI
VOTING OF SHARES IN OTHER CORPORATIONS
The President, Treasurer and any person authorized by the Board of
Directors shall have power to vote shares of stock held by this corporation in
any other corporation and/or to give a proxy to vote such shares.
ARTICLE XII
FISCAL YEAR
Except as from time to time otherwise provided by the Board of
Directors, the fiscal year of the corporation shall end on September 30th of
each year.
ARTICLE XIII
ASSESSMENTS
Shares of stock of this corporation, when issued, shall be fully paid
and non-assessable except for unpaid installments of installment stock.
ARTICLE XIV
POWERS OF OFFICERS TO CONTRACT WITH THE CORPORATION
Any and all of the Directors and officers of the corporation,
notwithstanding their official relations to it, may enter into, negotiate,
consummate and perform any contract or agreement of any name or nature between
the corporation and themselves, or any and all of the individuals from time to
time constituting the Board of Directors of the corporation, or any firm or
corporation in which any such Director may be interested, directly or
indirectly, whether such individuals, or individual, firm or corporation, thus
contracting with the corporation shall thereby
<PAGE>
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derive personal or corporate profits or benefits or otherwise, provided such
interest is made known to this corporation prior to the making of such contract
or agreement, the intent hereof being to relieve each and every person who may
be or become a Director of the corporation or any corporation in which he may be
interested in any way from any disability that might otherwise exist from
contracting with the corporation. Any Director of the corporation, whether an
officer of the corporation or not, who is interested in any transaction in any
manner, as aforesaid, may nevertheless be counted in determining the existence
of a quorum at any meeting of the Board of Directors which shall authorize or
ratify any such transaction, and may vote thereat to authorize or ratify any
such transaction with like force and effect as if he were not so interested.
This Article shall not be construed to invalidate any contract or other
transaction which would otherwise be valid under the common or statutory law
applicable thereto.
ARTICLE XV
STOCK OPTIONS
The Board of Directors may from time to time grant to such persons,
including Directors, officers or employees of the corporation or of a parent or
subsidiary corporation, as the Board may determine, options for the purchase of
unissued stock which the corporation may be authorized to issue or of treasury
stock, either with or without a general or specific plan with respect to the
granting of such options, on such terms and for such number of shares as the
Board may determine.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 1. Charitable Contributions. The Board of Directors may
authorize from time to time contributions to be made by the corporation in such
amounts as it may determine to be reasonable to corporations, trusts, funds or
foundations organized and operated exclusively for charitable, scientific or
educational purposes, no part of the net earning of which inures to the private
benefit of any stockholder or individual.
Section 2. Evidence of Authority. A certificate by the Clerk or any
Assistant Clerk as to any action taken by the stockholders, Directors 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. The exercise of
any power which by law, by the Articles of Organization, or by these By-Laws, or
under any vote of the stockholders or the Board of Directors, may be exercised
by an officer of the corporation only in the event of absence of another officer
or any other contingency, shall bind the corporation in favor of anyone relying
thereon in good faith, whether or not such absence or contingency existed.
Section 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
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be signed by the President or the Treasurer except as the Directors may
generally or in particular cases otherwise determine.
Section 4. 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 Transfer Books, 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 the corporation, or at an office of its
Transfer Agent or of the Clerk or of the Assistant Clerk, if any. Said copies
and records need not all be kept in the same office. They shall be available at
all reasonable times to inspection of any stockholder for any 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.
Section 5. 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 control share acquisitions of the corporation.
ARTICLE XVII
AMENDMENTS
These By-Laws may be amended by affirmative vote of the holders of a
majority of the shares of the capital stock at the time outstanding and entitled
to vote, at any annual or special meeting of stockholders, or by the affirmative
vote of a majority of the Directors then in office; provided, however, that
notice of a proposal to amend these By-Laws be included in the notice of such
meeting of Directors or stockholders. Any amendment of these By-Laws by the
Board of Directors may be altered or repealed by the stockholders at any annual
or special meeting of stockholders.
August 18, 1997
MAPICS, Inc.
5775-D Glenridge Drive; Suite 300
Atlanta, GA 30328
Re: Registration Statement on Form S-3
----------------------------------
Dear Sir or Madam:
We are counsel to MAPICS, Inc., a Massachusetts corporation (the
"Company"), and have represented the Company in connection with the preparation
and filing of the Company's Registration Statement on Form S-3 (the
"Registration Statement"), covering the resale to the public of up to 526,309
shares of the Company's Common Stock, par value $.01 per share (the "Shares"),
issuable upon the exercise of certain Common Stock Purchase Warrants of the
Company (the "Warrants").
We have reviewed the corporate proceedings taken by the Board of
Directors of the Company with respect to the authorization and issuance of the
Warrants and the Shares. We have also examined and relied upon originals or
copies, certified or otherwise authenticated to our satisfaction, of all
corporate records, documents, agreements, or other instruments of the Company
and have made all investigations of law and have discussed with the Company's
officers all questions of fact that we have deemed necessary or appropriate.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the terms of the Warrants, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm in the Prospectus
contained in the Registration Statement under the caption "Legal Matters."
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
Exhibit 23.2
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of MAPICS, Inc. on Form S-3 of our report, dated October 24, 1996, on
our audits of the consolidated financial statements of Marcam Corporation as of
September 30, 1996 and 1995, and for the years ended September 30, 1996 and
1995, which report is included in the Annual Report on Form 10-K of Marcam
Corporation for the year ended September 30, 1996. We also consent to the
reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Boston, Massachusetts
August 18, 1997
Exhibit 23.3
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of MAPICS, Inc. on Form S-3 of our report, dated June 3, 1997, on our
audits of the combined financial statements of MAPICS, Inc. as of September 30,
1995 and 1996 and March 31, 1997 and for each of the three years in the period
ended September 30, 1997 and for the six months ended March 31, 1997, which
report is included in the Final Prospectus of MAPICS, Inc. filed with the
Securities and Exchange Commission on July 30, 1997. We also consent to the
reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Boston, Massachusetts
August 18, 1997
Exhibit 23.4
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in this Registration Statement
on Form S-3 of MAPICS Inc. of our report dated October 20, 1994, relating to the
consolidated statements of operations, stockholders' equity, and cash flows of
Marcam Corporation and subsidiaries for the year ended September 30, 1994, which
report appears in the September 30, 1996 Annual Report on Form 10-K of Marcam
Corporation and to the reference of our firm under the heading of "Experts" in
the prospectus.
KPMG Peat Marwick LLP
Boston, Massachusetts
August 12, 1997
