EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
OF
SENECA FOODS CORPORATION
The following is a composite copy of the Restated Certificate
of Incorporation, as amended, of Seneca Foods Corporation, which was prepared
for the purpose of filing as an Exhibit with the Securities and Exchange
Commission:
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED
OF
SENECA FOODS CORPORATION
- 34 -
The name of the Corporation is SENECA FOODS
CORPORATION.
The purposes for which it is formed are:
To buy, sell, trade, acquire and otherwise deal in grapes, all other fruits,
vegetables and all other farm products, meats, poultry and all other produce or
products suitable for human or animal consumption; to press, cook, evaporate,
concentrate and by any and all other processes to remove, extract or break down
the contents thereof; to bottle, freeze, can, pack, box, preserve or otherwise
prepare, render, manufacture part or all the contents thereof; to prepare and
manufacture grape juice and other fruit juices, extracts, jellies and all other
fruit products, vegetable products, meat products and farm products, soft
drinks, extracts and all other types of products manufactured wholly or partly
from such items; to sell, distribute at wholesale or retail, in bulk or
otherwise, all products so manufactured and their by-products, to warehouse or
contract to warehouse any of the products so prepared.
To own, acquire, lease, rent or otherwise obtain and maintain factories,
machinery, refrigeration equipment, presses and all other forms of machinery
suitable and useful for the preparation thereof.
To maintain warehouses, storage facilities, refrigeration units and generally
cold storage facilities for the purposes hereof.
To buy, sell, manufacture and deal in ice; to maintain refrigerators for frozen
products and to conduct in general a cold storage business; to lease or rent
cold storage facilities to others.
To own, rent, lease and operate farm lands from which to produce and raise such
aforementioned items; to sell, furnish and supply farmers, breeders and
producers with seeds, plants, feed and other equipment and facilities to plant,
grow or raise such items.
To buy, sell, acquire and otherwise deal in and trade in futures for the purpose
of acquiring the necessary fruits, vegetables, meats and products to conduct
such business.
To purchase, acquire, manufacture, hold, improve, sell, let and lease real and
personal property of all kinds, including but not limited to lands, leaseholds,
shares of stock, mortgages, bonds, debentures or other securities, xmerchandise,
notes, certificates of indebtedness, book debts, claims, copyrights, trademarks,
trade names, brands, labels, patents, patent rights, franchises, licenses,
grants, concessions, good will and any interest in real or personal property of
every class and description.
To acquire, and pay for in cash, stock or bonds of this Corporation or
otherwise, the good will, stock in trade, franchises, rights, assets and
property, and to undertake or assume the whole or any part of the obligations
or liabilities of any person, firm, association or corporation engaged in
the same or similar business.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage, or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating to
or useful in connection with any business of this Corporation.
To purchase, hold, use, sell, assign, transfer, mortgage, pledge or otherwise
dispose of the shares of the capital stock of, or any bonds, securities or
evidences of indebtedness created by any other corporation or corporations
organized under the laws of this state or any other state, country, nation or
government and while the owner thereof to exercise all the rights, powers and
privileges of ownership.
To borrow money and to make, accept, endorse and issue promissory notes, bonds,
debentures, or other obligations of this Corporation from time to time for any
of the objects or purposes of the Corporation and to secure the same by
mortgage, pledge, deed of trust, or otherwise.
To purchase, hold, sell and transfer the shares of its own capital stock;
provided it shall not use its funds or property for the purchase of its
own shares of capital stock when such use would cause any impairment of its
capital stock except as otherwise permitted by law; and provided further
that shares of its own capital stock belonging to it shall not be voted
upon directly or indirectly.
To have one or more offices, to carry on all or any of its operations and
business and without restriction or limit as to amount to purchase or
otherwise dispose of real and personal property of every class and description
in any of the states, districts, territories or colonies of the United
States, and in any and all foreign countries, subject to the laws of such
state, district, territory, colony or country.
To buy, own, operate, maintain and trade in trucks, buses, automobiles, boats,
aircraft, tractors, trailers and any and all other types of vehicles, equipment
and rolling stock necessary or useful in carrying out the foregoing purposes.
To employ all personnel, to enter into agency or independent contractor
relationships, to designate distributors, to obtain any or all
scientific skills and professional services necessary or useful in
carrying out the foregoing purposes.
In general, to carry on any other similar business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of
New York upon corporations formed under the Business Corporation Law, and to do
any or all of the things hereinbefore set forth to the same extent as natural
persons might or could do.
The foregoing clauses shall be construed both as objects and powers, and it is
hereby expressly provided that the foregoing enumeration of specific powers
shall not be held to limit or restrict in any manner the powers of this
corporation.
The Capital Stock of the Corporation shall consist of ten million (10,000,000)
shares of Class A Common Stock of the par value of $0.25 each; ten million
(10,000,000) shares of Class B Common Stock of the par value of $0.25 each;
two hundred thousand (200,000) shares of Six Percent (6%) Voting Cumulative
Preferred Stock of the par value of $0.25 each; thirty thousand (30,000)
shares of Preferred Stock Without Par Value, to be issued in series by the
Board of Directors, pursuant to the provisions of Article 4, Section (c)
hereof, subject to the limitations prescribed by law; and four million
(4,000,000) shares of Preferred Stock with $.025 par value, Class A, to be
issued by the Board of Directors pursuant to the provisions of Article 4,
Section (d) hereof, subject to the limitations prescribed by law. The
stated capital of the Corporation as determined pursuant to Section 506
of the Business Corporation Law shall be increased by one million one hundred
eighty thousand four hundred ninety three dollars ($1,180,493) and such increase
shall be allocated equally to the stated capital in respect of the Corporation's
$0.25 par value Class A Common Stock and Class B Common Stock.
The designations, preferences, privileges and voting powers of the shares of
each class of stock which the Corporation is authorized to issue, and the
restrictions or qualifications thereof, shall be as follows:
(a) Class A Common Stock and Class B Common Stock.
(A) Provisions Applicable to Class A Common Stock and Class B Common Stock.
(i) The holders of record of Class A Common Stock and
the holders of record of Class B Common Stock shall have equal
rights and rank per share with respect to any and all
dividends and distributions declared on the common stock of
the Corporation, and no dividend or distribution shall be
declared or made with respect to either Class A Common Stock
or Class B Common Stock unless that dividend or distribution
is declared and made with respect to both such classes; except
that (subject to conversion rights of any preferred stocks) a
dividend or distribution upon Class A Common Stock which will
be paid in shares of common stock of the Corporation shall be
declared and made only in shares of Class A Common Stock and a
dividend or distribution upon Class B Common Stock which will
be paid in shares of common stock of the Corporation shall be
declared and made only in shares of Class B Common Stock, and
if a dividend or distribution is so declared and paid in
shares of one class of common stock to the holder of each
share of that class, a per-share dividend or distribution in
an equal number of shares of the other class of common stock
shall be concurrently declared and paid to the holder of each
share of such other class, so that the number of shares of
Class A Common Stock paid as a dividend or distribution on a
share of Class A Common Stock shall be equal to the number of
shares of Class B Common Stock paid as a dividend or
distribution on a share of Class B Common Stock.
(ii) In the event of any voluntary or
involuntary liquidation, dissolution or any winding up of the
Corporation, each share of Class A Common Stock and Class B
Common Stock shall rank equally with respect to any
distribution to be received by holders of common stock upon or
with respect to liquidation, dissolution or winding up.
(B) Provisions Applicable to Class A Common Stock.
(i) The holders of Class A Common Stock are
entitled to one-twentieth (1/20th) of one vote per share on
all questions presented to the stockholders. In all elections
of directors of the Corporation, each holder of Class A Common
Stock shall have the right to vote in person or by proxy
one-twentieth (1/20th) of one vote for each share of Class A
Common Stock held by such holder for as many Persons as there
are directors to be elected. No cumulative voting for
directors shall be permitted.
Any provision of the Certificate of Incorporation
or By-laws of the Corporation requiring the affirmative vote
of a specified percentage of shares of the Corporation shall
be read to give effect to the lesser voting rights of the
holders of Class A Common Stock as described above;
specifically, a provision that the affirmative vote of a
specified percentage of the shares of the Corporation is
required shall require the affirmative vote of the holders of
that percentage of the aggregate voting power of the
Corporation.
The holders of Class A Common Stock are entitled to
vote as a separate class (i) on any proposal to amend the
Corporation's Certificate of Incorporation to increase the
authorized number of shares of Class B Common Stock, unless
the increased authorization does not exceed the number of
shares of Class B Common Stock which must be issued in a
proposed stock dividend with respect to shares of Class B
Common Stock and which conforms to the requirements set forth
in this Article with respect to payment of dividends in stock
of this Corporation upon shares of Class B Common Stock and
Class A Common Stock and (ii) as required by applicable law.
(ii) The Class A Common Stock is not
convertible into shares of Class B Common Stock, unless the
number of outstanding shares of Class B Common Stock falls
below 5% of the aggregate number of outstanding shares of
Class B Common Stock and Class A Common Stock. At such time,
all of the outstanding Class A Common Stock will be converted
automatically into shares of Class B Common Stock on a
share-for-share basis. For purposes of this Article
4(a)(B)(ii), "outstanding" shares of Common Stock would not
include shares of Class B Common Stock or shares of Class A
Common Stock repurchased by the Corporation and not reissued.
(C) Provisions Applicable to Class B Common Stock.
(i) Except as provided in paragraph (C)(ii)
of this Article 4(a), the holders of Class B Common Stock are
entitled to one vote per share on all questions presented to
the stockholders. In all elections of directors of the
Corporation, each holder of Class B Common Stock shall have
the right to vote in person or by proxy the number of shares
of Class B Common Stock held by such holder for as many
Persons as there are directors to be elected. No cumulative
voting for directors shall be permitted. The holders of Class
B Common Stock are entitled to vote as a separate class where
required by applicable law. If any share of Class B Common
Stock is ineligible to vote by reason of the limitations
contained in paragraph (c)(ii) of this Article 4(a), that
share will be excluded from the determination of the total
shares eligible to vote for any purpose for which a vote of
shareholders is taken.
(ii) The voting rights of holders of shares
of Class B Common Stock are subject to the following
restrictions: If a Person acquires more than 15% (the "15%
Threshold Amount") of the outstanding Class B Common Stock
after August 5, 1995 (the "Threshold Date") and does not
acquire after the Threshold Date a percentage of the Class A
Common Stock outstanding at least equal to the percentage of
Class B Common Stock acquired by that Person after the
Threshold Date in excess of the 15% Threshold Amount, such
Person will not be allowed to vote shares of Class B Common
Stock acquired after the Threshold Date in excess of the 15%
Threshold Amount. The inability of the Person to vote the
shares of Class B Common Stock in excess of the 15% Threshold
Amount will continue until such time as a sufficient number of
shares of Class A Common Stock have been acquired by the
Person.
For purposes of calculating the 15% Threshold
Amount, the following acquisitions and increases shall be
excluded: (i) shares of Class B Common Stock held by any
Person on the Threshold Date, (ii) an increase in a holder's
percentage ownership of Class B Common Stock resulting solely
from a change in the total number of shares of Class B Common
Stock outstanding as a result of a repurchase of Class B
Common Stock by the Corporation since the last date on which
that holder acquired Class B Common Stock, (iii) acquisitions
of Class B Common Stock (1) made pursuant to contracts
existing prior to the Threshold Date, including the
acquisition of Class B Common Stock pursuant to the conversion
provisions of Class A Preferred Stock outstanding prior to the
Threshold Date, (2) by bequest or inheritance, or by operation
of law upon the death or incompetency of any individual and
(3) by any other transfer made without valuable consideration,
in good faith and not for the purpose of circumventing the
restrictions imposed by the 15% Threshold Amount. A gift made
to any Person who is related to the donor by blood or
marriage, a gift made to a charitable organization qualified
under Section 501(c)(3) of the Internal Revenue Code of 1986
or a successor provision and a gift to a Person who is a
fiduciary solely for the benefit of, or which is owned
entirely by, one or more of the following persons or entities:
(1) a person who is related to the donor by blood or
marriage, or
(2) a charitable organization which is qualified under
Section 501(c)(3) as described above
shall be presumed to be made in good faith and not for
purposes of circumventing the restrictions imposed by the 15%
Threshold Amount.
Acquisitions of Class A Common Stock so as to
preclude the effect of the voting restrictions contained in
the preceding paragraph must be made for an "equitable price."
For purposes of this paragraph an "equitable price" is deemed
to have been paid only when the shares of Class A Common Stock
have been acquired at a price at least equal to the greater of
(i) the highest per share price paid by the acquiring Person,
in cash or non-cash consideration, for any Class B Common
Stock acquired within the 60-day periods preceding and
following the acquisition of the Class A Common Stock or (ii)
the highest closing market sale price of Class B Common Stock
during the 30-day periods preceding and following the
acquisition of the Class A Common Stock. The value of any
non-cash consideration will be determined by the Board of
Directors acting in good faith. The highest closing market
sale price of a share of Class B Common Stock will be the
highest closing sale price reported by the principal trading
market for either class of Common Stock.
As used in this Article 4(a)(C)(ii):
"Person" shall include one or more persons
and entities who act or agree to act in concert with
respect to the acquisition or disposition of Class B
Common Stock or with respect to proposing or
effecting a plan or proposal to (a) a merger,
reorganization or liquidation of the Corporation or a
sale of a material amount of its assets, (b) a change
in the Corporation's Board of Directors or
management, including any plans or proposal to fill
vacancies on the Board of Directors or change the
number or term of Directors, (c) a material change in
the business or corporate structure of the
Corporation, or (d) any material change in the
capitalization or dividend policy of the Corporation.
As used in the preceding sentence, "act or agree to
act in concert" shall not include acts or agreements
to act by persons pursuant to their official
capacities as Directors or officers of the
Corporation or because they are related by blood or
marriage.
Each reference to acquiring or acquisition
of Class B Common Stock and Class A Common Stock
shall include direct and indirect acquisitions of
such stock.
(iii) The holders of Class B Common Stock
shall have the right, at their option, to convert such shares
into shares of Class A Common Stock at any time after the
issuance thereof, on a share-per-share basis. The conversion
rights in the preceding sentence shall expire upon the
occurrence of the automatic conversion of all outstanding
shares of Class A Common Stock into Class B Common Stock
pursuant to the provisions of paragraph (B)(ii) of this
Article 4(a). In order to convert shares of Class B Common
Stock into shares of Class A Common Stock, the holder thereof
shall surrender at the office of the Corporation the
certificate or certificates therefor, duly endorsed to the
Corporation or in blank, and give written notice at such
office that he elects to convert such shares of Class B Common
Stock which shall be deemed to have been converted as of the
date (hereinafter called the "Class A Conversion Date") of the
surrender of such shares for conversion as provided above, and
the person or persons entitled to receive the shares of Class
A Common Stock issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such Class
A Common Stock on such date. As soon as practicable on or
after the Class A Conversion Date, the Corporation will
deliver at such office a certificate or certificates for the
number of shares of Class A Common Stock issuable on such
conversion.
(b)Six Percent (6%) Voting Cumulative Preferred Stock.
(A) The holders of record of Six Percent
(6%) Voting Cumulative Preferred Stock shall be entitled to
cash dividends when and as declared by the Board of Directors
at the rate of six percent (6%) of the par value per share per
annum and no more, payable on the first days of January and
July in each year in preference to and in priority over
dividends upon the common stock and all other shares junior to
the Six Percent (6%) Voting Cumulative Preferred Stock. Such
cash dividends on the Six Percent (6%) Voting Cumulative
Preferred Stock are to be cumulative so that, if for any year
or years cash dividends at the rate of six percent (6%) per
share per annum are not declared and paid or set apart for
payment on such Six Percent (6%) Voting Cumulative Preferred
Stock outstanding, the deficiency shall be declared and paid
or set apart for payment prior to the making of any dividend
or other distribution on the common stock, such cash dividends
on the Six Percent (6%) Voting Cumulative Preferred Stock to
accrue from the date of issue if that be a dividend date,
otherwise from the dividend date next preceding the date of
issue of such Six Percent (6%) Voting Cumulative Preferred
Stock. Upon the payment or setting apart for payment of all
dividends current and accumulated at the rate of six percent
(6%) per annum upon the Six Percent (6%) Voting Cumulative
Preferred Stock, the directors may declare and pay dividends
in order of priority upon shares junior to the said Six
Percent (6%) Voting Cumulative Preferred Stock.
(B) In the event of any voluntary or
involuntary liquidation, dissolution or any winding up of the
Corporation, the holders of record of the Six Percent (6%)
Voting Cumulative Preferred Stock shall be entitled to be paid
the full par value of such issue of Preferred Stock plus
accumulated dividends thereon to the date of such liquidation,
dissolution or winding up of the Corporation, whether or not
the Corporation shall have a surplus or earnings available for
dividends, and no more before any distribution of any assets
shall be made to the holders of any class of common stock or
other shares junior to the Six Percent (6%) Voting Cumulative
Preferred Stock.
(C) The Corporation at its option may redeem
the whole or any part, pro rata or by lot, of the Six Percent
(6%) Voting Cumulative Preferred Stock outstanding at any time
by paying therefor in cash one hundred percent (100%) of the
par value thereof plus accumulated dividends thereon to the
date fixed for such redemption by mailing notice of such
redemption to the holders of such Six Percent (6%) Voting
Cumulative Preferred Stock to be redeemed at their respective
addresses as such addresses may appear on the stock books of
the Corporation, specifying the time and place of redemption
at the office of the Corporation, such notice to be mailed at
least thirty (30) days and not more than sixty (60) days prior
to the date specified therein for redemption.
(D) In all elections of directors of the
Corporation, each holder of Six Percent (6%) Voting Cumulative
Preferred Stock shall have the right to vote in person or by
proxy the number of shares of Six Percent (6%) Voting
Cumulative Preferred Stock held by him for as many Persons as
there are directors to be elected. No cumulative voting for
directors shall be permitted.
(E) A class of stock shall be deemed to be
"junior to the Six Percent (6%) Voting Cumulative Preferred
Stock" if the Six Percent (6%) Voting Cumulative Preferred
Stock has priority over such class with respect to dividend
rights or liquidation rights.
(c) Preferred Stock Without Par Value.
(A) The Board of Directors is authorized,
subject to limitations prescribed by law and the provisions of
this paragraph, to provide for the issuance in series of the
shares of Preferred Stock Without Par Value, and by filing a
certificate pursuant to the Business Corporation Law, to
establish the number of shares to be included in each such
series, and to fix the designation, relative rights,
preferences and limitations of the shares of each such series
whether or not such relative rights, preferences and
limitations of such series shall be fixed as senior to, junior
to, or on a parity with the relative rights, preferences and
limitations of any other class of stock or series thereof, and
to reclassify or alter the designation, relative rights,
preferences and limitations of any authorized and unissued
Preferred Stock Without Par Value whether or not such shares
shall have been designated as shares of any particular series
and whether or not such relative rights, preferences and
limitations of such series shall be fixed as senior to, junior
to, or on a parity with the relative rights, preferences and
limitations of any other class of stock or series thereof. The
authority of the Board with respect to each series shall
include, but not be limited to, determination of the
following:
(i) The number of shares constituting that series
and the distinctive designation of that series;
(ii) The rate and times at which, and the terms
and conditions on which, dividends, if any, on shares of such
series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes or series of the same or other
classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(iii) Whether that series shall have voting
rights, in addition to any voting rights provided by law, and,
if so, the terms of such voting rights;
(iv) Whether that series shall have conversion
privileges, and, if so, the terms and conditions of such
conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(v) Whether or not the shares of that series shall
be redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) The rights of the shares of that series in
the event of voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding up of the Corporation; and
(vii) Any other relative rights, preferences and
limitations of that series.
The authority of the Board of Directors with
respect to each such series shall be limited by the condition
that no series of the shares of any series so authorized by
the Board of Directors to be issued shall rank as to the
payment of dividends or rights on liquidation, dissolution or
winding up of the Corporation senior to the shares of any
previously authorized series or of any other class of
Preferred Stock without an affirmative vote of a majority of
the holders of each such series or class of stock.
(B) Dividends on outstanding shares of
Preferred Stock Without Par Value shall be declared and paid,
or set apart for payment, before any dividends shall be
declared and paid, or set apart for payment, on any class of
common stock with respect to the same dividend period. If the
stated dividends on the shares of all series of Preferred
Stock Without Par Value are not paid in full, the shares of
all series of such class shall share ratably in the payment of
dividends including accumulation, if any, in accordance with
the sums which would be payable on such shares if all
dividends were declared and paid in full.
(C) In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of each series of Preferred
Stock Without Par Value then outstanding shall be entitled to
receive out of the assets of the Corporation, before any
distribution or payment shall be made to the holders of any
class of common stock, an amount equal to the stated value of
the stock plus, in respect of each share with respect to which
dividends are cumulative, a sum computed at the dividend rate
provided for in the Certificate of Incorporation from and
after the date on which dividends on such shares became
cumulative to and including the date fixed for such payment,
less the aggregate of the dividends theretofore paid thereon,
but computed without interest. If the amounts payable on
liquidation in respect to the shares of all series of
Preferred Stock Without Par Value are not paid in full, the
shares of all series of such class shall share ratably in any
distribution of assets other than by way of dividends in
accordance with the sums which would be payable in such
distribution if all sums payable were discharged in full. If
such payment shall have been made in full to the holders of
all shares of Preferred Stock Without Par Value on voluntary
or involuntary liquidation, dissolution or winding up, the
remaining assets of the Corporation shall be distributed in
accordance with Section (d)(C) of this Article 4. For the
purpose of this paragraph, a consolidation or merger of the
Corporation with one or more other corporations shall not be
deemed to be a liquidation or winding up of the Corporation.
(d) Preferred Stock With $.025 Par Value, Class A.
(A) The Board of Directors is authorized,
subject to the limitations prescribed by law and the
provisions of this paragraph, to provide for the issuance in
series of the shares of Preferred Stock With $.025 Par Value,
Class A (hereinafter called "Class A Preferred Stock"), and by
filing a certificate pursuant to the Business Corporation Law,
to establish the number of shares to be included in each such
series, and to fix the designation, relative rights,
preferences and limitations of the shares of each such series.
The authority of the Board with respect to each series shall
include, but not be limited to, determination of the
following:
(i) The number of shares constituting that series
and the distinctive designation of that series;
(ii) The rate and times at which, and the terms
and conditions on which, dividends, if any, on shares of such
series shall be paid, the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes or series of the same or other
classes of stock and whether such dividends shall be
cumulative or non-cumulative;
(iii) Whether that series shall have voting
rights, in addition to any voting rights provided by law, and,
if so, the terms of such voting rights;
(iv) Whether that series shall have conversion
privileges, and, it so, the terms and conditions of such
conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(v) Whether or not the shares of that series shall
be redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in
case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) The rights of the shares of that series in
the event of voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding up of the Corporation; and
(vii) Any other relative rights, preferences and
limitations of that series.
The authority of the Board of Directors shall be
limited by the condition that the shares of each series of
Class A Preferred Stock authorized by the Board of Directors
to be issued shall rank, as to the payment of dividends or
rights on liquidation, dissolution or winding up of the
Corporation, junior to the shares of any authorized class of
Preferred Stock.
(B) Dividends on outstanding shares of Class
A Preferred Stock shall be declared and paid, or set apart for
payment, before any dividends shall be declared and paid, or
set apart for payment, on any class of common stock with
respect to the same dividend period. It the stated dividends
on the shares of all series of Class A Preferred Stock are not
paid in full, the shares of all series of such class shall
share ratably in the payment of dividends including
accumulation, if any, in accordance with the sums which would
be payable on such shares if all dividends were declared and
paid in full.
(C) In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of each series of Class A
Preferred Stock then outstanding shall be entitled to receive
out of the assets of the Corporation, before any distribution
or payment shall be made to the holders of any class of common
stock, an amount equal to the stated value of the stock plus,
in respect of each share with respect to which dividends are
cumulative, a sum computed at the dividend rate provided for
in the Certificate of Incorporation from and after the date on
which dividends on such shares became cumulative to and
including the date fixed for such payment, less the aggregate
of the dividends theretofore paid thereon, but computed
without interest. If the amounts payable on liquidation in
respect to the shares of all series of Class A Preferred Stock
are not paid in full, the shares of all series of such class
shall share ratably in any distribution of assets other than
by way of dividends in accordance with the sums which would be
payable in such distribution if all sums payable were
discharged in full. If such payment shall have been made in
full to the holders of all shares of Class A Preferred Stock
on voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the remaining assets of the
Corporation shall be distributed among the holders of each
class of common stock pro rata in accordance with their
respective holdings. For the purpose of this paragraph, a
consolidation or merger of the Corporation with one or more
other corporations shall not be deemed to be a liquidation or
winding up of the Corporation.
(D) First Series of Class A Preferred Stock.
The first series of 1,000,000 shares of Class A Preferred
Stock shall be designated Ten Percent (10%) Cumulative
Convertible Voting Preferred Stock3/4Series A, $0.25 stated
value (hereinafter called "10% Voting Preferred Stock"), and
shall have the following rights, preferences and limitations:
(i) Dividends. The holders of the 10% Voting
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, but only out of surplus
legally available for the payment of dividends, cumulative
cash dividends at the rate of $.025 per share per annum, and
no more, payable on the first days of January and July,
commencing January l, 1984. Such dividends shall be payable
after all past and current dividends on the Six Percent (6%)
Voting Cumulative Preferred Stock and the Preferred Stock
Without Par Value have been declared and paid, or a sum
sufficient therefor has been set aside for that purpose, and
before any dividends (other than a stock dividend in shares of
the same class of stock) on any class of common stock shall be
paid or set apart for payment or any shares of such stock
shall be acquired for consideration. Dividends shall be
cumulative from and after the date of issue of such shares,
but any arrearages in payment shall not bear interest.
(ii) Redemption. Provided that dividends on the
Six Percent (6%) Voting Cumulative Preferred Stock and the
Preferred Stock Without Par Value have been paid or a sum set
aside for payment, the Corporation, at the option of the Board
of Directors, may redeem all or any part of the 10% Voting
Preferred Stock at any time outstanding, at any time or from
time to time, upon notice duly given as hereinafter provided
for an amount in respect of each share to be redeemed equal to
the sum of $0.25 and an amount computed at the annual rate of
$.025 per annum per share from and after the date on which
dividends on such share became cumulative to and including the
date fixed for such redemption, less the aggregate of the
dividends theretofore and on such redemption date paid, but
computed without interest.
Notice of every such redemption of 10% Voting
Preferred Stock shall be mailed at least thirty (30) days
prior to the date fixed for such redemption to the holders of
record of shares so to be redeemed at their respective
addresses as the same shall appear on the books of the
Corporation. In case of redemption of a part only of the 10%
Voting Preferred Stock at the time outstanding, the shares to
be redeemed shall be selected in such manner as the Board of
Directors may determine, whether by lot or by pro rata
redemption or by selection of particular shares, and the
proceedings and actions of the Board of Directors in this
connection shall not be subject to attack except for fraud.
(iii) Voting. The holders of 10% Voting Preferred
Stock shall be entitled to one vote for each share of such
stock on all questions presented to the stockholders of the
Corporation.
(iv) Conversion. The holders of 10% Voting
Preferred Stock shall have the right, at their option, to
convert such shares into shares of common stock, $0.25 par
value, at any time after the issuance thereof, on and subject
to the following terms and conditions:
(a) The 10% Voting Preferred Stock shall be
convertible, at the office of the
Corporation or at such other office or
offices, if any, as the Board of Directors
may designate, into fully paid and
non-assessable shares of Class A Common
Stock and Class B Common Stock (calculated
as to each conversion to the nearest 1/10 of
a share) at the conversion rate, determined
as hereinafter provided, in effect at the
time of conversion. The conversion rate
shall be one (l) share of Class A Common
Stock and one (1) share of Class B Common
Stock for every twenty (20) shares of 10%
Voting Preferred Stock. In case the
Corporation shall at any time subdivide its
outstanding shares of common stock into a
greater number of shares or shall pay in
shares of common stock a dividend on then
outstanding shares of common stock, the
number of shares of common stock into which
the 10% Voting Preferred Stock is
convertible shall be proportionately
increased and, conversely, in case the
Corporation shall at any time combine its
outstanding shares of common stock into a
smaller number of shares, the number of
shares of common stock into which the 10%
Voting Preferred Stock is convertible shall
be proportionately reduced. If any capital
reorganization or reclassification of the
capital stock of the Corporation, or any
consolidation or merger of the Corporation
with another corporation, shall be effected,
the holder of 10% Voting Preferred Stock
shall thereafter be entitled upon the
exercise of conversion rights to receive the
number and kind of shares of stock,
securities or assets which the holder would
have been entitled to receive in connection
with such reorganization, recapitalization,
merger or consolidation if he had been a
holder of the number of shares of common
stock of the Corporation issuable upon the
conversion of his 10% Voting Preferred Stock
immediately prior to the time such
reorganization, recapitalization, merger, or
consolidation became effective. No
adjustment shall be made upon any conversion
on account of any dividends accrued on the
shares of 10% Voting Preferred Stock
surrendered for conversion or on account of
any dividend on the shares of common stock
issued on such conversion.
(b) In order to convert shares of
10% Voting Preferred Stock into shares of
common stock, the holder thereof shall
surrender at the office of the Corporation
the certificate or certificates therefor,
duly endorsed to the Corporation or in
blank, and give written notice at such
office that he elects to convert such shares
of 10% Voting Preferred Stock which shall be
deemed to have been converted as of the date
(hereinafter called the "Conversion Date")
of the surrender of such shares for
conversion as provided above, and the person
or persons entitled to receive the shares of
common stock issuable upon such conversion
shall be treated for all purposes as the
record holder or holders of such common
stock on such date. As soon as practicable
on or after the Conversion Date, the
Corporation will deliver at such office a
certificate or certificates for the number
of full shares of common stock issuable on
such conversion, together with cash in lieu
of any fraction of a share, as hereinafter
provided, to the persons entitled to receive
the same. In case shares of 10% Voting
Preferred Stock are called for redemption,
the right to convert such shares shall cease
and terminate at the close of business on
the date fixed for redemption, unless
default shall have been made in the payment
of the redemption price.
(c) No fractional shares of common
stock shall be issued upon conversion, but
the Corporation shall pay a cash adjustment
in respect of any fraction of a share which
would otherwise be issuable, in an amount
equal to the same fraction of the market
price per share of common stock at the close
of business on the Conversion Date. The
market price per share shall be, (i) if
traded on the over-the-counter market, the
mean between the closing bid and asked
quotations, or (ii) if traded on a national
securities exchange, the closing sale price,
or (iii) if traded on both the
over-the-counter market and an exchange, the
mean between the prices determined in
accordance with clauses (i) and (ii) of this
sentence.
(E) Second Series of Class A Preferred
Stock. The second series of 400,000 shares of Class A
Preferred Stock shall be designated Ten Percent (10%)
Cumulative Convertible Voting Preferred Stock3/4Series B,
$0.25 stated value (hereinafter called "Series B Preferred
Stock"), and shall have the following rights, preferences and
limitations:
(i) Dividends. The holders of the Series B
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, but only out of surplus
legally available for the payment of dividends, cumulative
cash dividends at the rate of $.025 per share per annum, and
no more, payable on the first days of January and July,
commencing July 1, 1985. Such dividends shall be payable after
all past and current dividends on the Six Percent (6%) Voting
Cumulative Preferred Stock and the Preferred Stock Without Par
Value have been declared and paid, or a sum sufficient
therefor has been set aside for that purpose, and before any
dividends (other than a stock dividend in shares of the same
class of stock) on any class of common stock shall be paid or
set apart for payment or any shares of such stock shall be
acquired for consideration. Dividends shall be cumulative from
and after the date of issue of such shares, but any arrearages
in payment shall not bear interest.
(ii) Redemption. Provided that dividends on the
Six Percent (6%) Voting Cumulative Preferred Stock and the
Preferred Stock without Par Value have been paid or a sum set
aside for payment, the Corporation, at the option of the Board
of Directors, may redeem all or any part of the Series B
Preferred Stock at any time outstanding, at any time or from
time to time, upon notice duly given as hereinafter provided
for an amount in respect of each share to be redeemed equal to
the sum of $0.25; and an amount computed at the annual rate of
$.025 per annum per share from and after the date on which
dividends on such share became cumulative to and including the
date fixed for such redemption, less the aggregate of the
dividends theretofore and on such redemption date paid, but
computed without interest.
Notice of every such redemption of Series
B Preferred Stock shall be mailed at least thirty (30) days
prior to the date fixed for such redemption to the holders of
record of shares so to be redeemed at their respective
addresses as the same shall appear on the books of the
Corporation. In case of redemption of a part only of the
Series B Preferred Stock at the time outstanding, the shares
to be redeemed shall be selected in such manner as the Board
of Directors may determine, whether by lot or by pro rata
redemption or by selection of particular shares, and the
proceedings and actions of the Board of Directors in this
connection shall not be subject to attack except for fraud.
(iii) Voting. The holders of Series B Preferred
Stock shall be entitled to one vote for each share of such
stock in all questions presented to the stockholders of the
Corporation.
(iv) Conversion. The holders of Series B
Preferred Stock shall have the right, at their option, to
convert such shares into shares of common stock, $0.25 par
value, at any time after the issuance thereof, on and subject
to the following terms and conditions:
(a) The Series B Preferred Stock
shall be convertible, at the office of the
Corporation or at such other office or
offices, if any, as the Board of Directors
may designate, into fully paid and
non-assessable shares of Class A Common
Stock and Class B Common Stock (calculated
as to each conversion to the nearest 1/10 of
a share) at the conversion rate, determined
as hereinafter provided, in effect at the
time of conversion. The conversion rate
shall be one (1) share of Class A Common
Stock and one (1) share of Class B Common
Stock for every thirty (30) shares of Series
B Preferred Stock. In case the Corporation
shall at any time subdivide its outstanding
shares of common stock into a greater number
of shares or shall pay in shares of common
stock a dividend on then outstanding shares
of common stock, the number of shares of
common stock into which the Series B
Preferred Stock is convertible shall be
proportionately increased and, conversely,
in case the Corporation shall at any time
combine its outstanding shares of common
stock into a smaller number of shares, the
number of shares of common stock into which
the Series B Preferred Stock is convertible
shall be proportionately reduced. If any
capital reorganization or reclassification
of the capital stock of the Corporation, or
any consolidation or merger of the
Corporation with another corporation, shall
be effected, the holder of Series B
Preferred Stock shall thereafter be entitled
upon the exercise of conversion rights to
receive the number and kind of shares of
stock, securities or assets which the holder
would have been entitled to receive in
connection with such reorganization,
recapitalization, merger or consolidation if
he had been a holder of the number of shares
of common stock of the Corporation issuable
upon the conversion of his Series B
Preferred Stock immediately prior to the
time such reorganization, recapitalization,
merger, or consolidation became effective.
No adjustment shall be made upon any
conversion on account of any dividends
accrued on the shares of Series B Preferred
Stock surrendered for conversion or on
account of any dividend on the shares of
common stock issued on such conversion.
(b) In order to convert shares of
Series B Preferred Stock into shares of
common stock, the holder thereof shall
surrender at the office of the Corporation
the certificate or certificates therefor,
duly endorsed to the Corporation or in
blank, and give written notice at such
office that he elects to convert such shares
of Series B Preferred Stock which shall be
deemed to have been converted as of the date
(hereinafter called the "Conversion Date")
of the surrender of such shares for
conversion as provided above, and the person
or persons entitled to receive the shares of
common stock issuable upon such conversion
shall be treated for all purposes as the
record holder or holders of such common
stock on such date. As soon as practicable
on or after the Conversion Date, the
Corporation will deliver at such office a
certificate or certificates for the number
of full shares of common stock issuable on
such conversion, together with cash in lieu
of any fraction of a share, as hereinafter
provided, to the persons entitled to receive
the same. In case shares of Series B
Preferred Stock are called for redemption,
the right to convert such shares shall cease
and terminate at the close of business on
the date fixed for redemption, unless
default shall have been made in the payment
of the redemption price.
(c) No fractional shares of common
stock shall be issued upon conversion, but
the Corporation shall pay a cash adjustment
in respect of any fraction of a share which
would otherwise be issuable, in an amount
equal to the same fraction of the market
price per share of common stock at the close
of business on the Conversion Date. The
market price per share shall be, (i) if
traded on the over-the-counter market, the
mean between the closing bid and asked
quotations, or (ii) if traded on a national
securities exchange, the closing sale price,
or (iii) if traded on both the
over-the-counter market and an exchange, the
mean between the prices determined in
accordance with clauses (i) and (ii) of this
sentence.
(e) Provisions Generally Applicable to Capital Stock.
(A) No holder of shares of the Capital Stock
of any class of the Corporation shall have any preemptive or
preferential right of subscription to any shares of any class
of stock of the Corporation, whether now or hereafter
authorized, or to any obligations convertible into stock of
the Corporation, issued or sold, nor any right of subscription
to any thereof other than such, if any, as the Board of
Directors, in its discretion, may from time to time determine
and at such price as the Board of Directors may, from time to
time, fix; and any shares of stock or convertible obligations
which the Corporation may determine to offer for subscription
to the holders of stock may, as the Board of Directors shall
determine, be offered to holders of any class or classes of
stock exclusively or to holders of all classes of stock, and
if offered to more than one class of stock, in such
proportions as between the said classes of stock as the Board
of Directors in its discretion may determine.
As used in this Section (e) the expression
"convertible obligations" shall include any notes, bonds or
other evidences of indebtedness to which are attached or with
which are issued warrants or other rights to purchase stock of
the Corporation of any class or classes; and the Board of
Directors is hereby expressly authorized, in its discretion,
in connection with the issue of any obligations or stock of
the Corporation (but without intending hereby to limit its
general power as to do in any other cases) to grant rights or
options to purchase stock of the Corporation of any class upon
such terms and during such periods as the Board of Directors
shall determine, and to cause such rights or options to be
evidenced by such warrants or other instruments as it may deem
advisable.
(B) The Board of Directors may authorize the purchase
of shares of Class A Common Stock or Class B Common Stock or
any other class of stock or any combination of classes without
regard to differences among the classes in price or other
terms upon which such shares may be purchased.
I The By-Laws of the Corporation may be amended at a
meeting of stockholders by the affirmative vote of
the holders of two-thirds (2/3) of the shares present
and entitled to vote at the meeting.
II Any Director may be removed either with or without
cause at any time by a vote of the stockholders
holding two-thirds (2/3) of the stock then issued and
outstanding and which was entitled to vote for the
election of the directors sought to be removed at any
Special Meeting called for that purpose.
III The office of the Corporation shall be located in
the Village of Pittsford, County of Monroe, New York,
and the address to which the Secretary of State
shall mail a copy of process in any action or
proceeding against the Corporation that may be served
upon the Secretary of State is 1162 Pittsford-Victor
Road, Pittsford, New York 14534.
IV The Secretary of State of the State of New York is
hereby designated as the agent of the Corporation
upon whom process in any action or proceeding against
it may be served.
V Each and every director or officer of this
Corporation, including a person who has been a
director or officer and whose term of office has
expired, shall be indemnified by the Corporation
against any and all expenses actually and necessarily
incurred by him in connection with the defense of any
action, suit or proceeding in which he is made a
party by reason of his being or having been a
director or officer of this Corporation except in
relation to matters as to which he shall be adjudged
in such action, suit or proceeding to be liable for
neglect or misconduct in the performance of his
duties as such director or officer, and such right
of indemnification shall not be deemed exclusive or
any other rights to which he might be entitled.
IN WITNESS WHEREOF, this Certificate has been
executed this day of August 1995 and we affirm the
statements contained therein are true under penalties
of perjury.
/s/ Kraig H. Kayser
Kraig H. Kayser, President
/s/ Jeffrey L. Van Riper
Jeffrey L. Van Riper, Secretary
(SEAL)