Exhibit 3.2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
SENECA FOODS CORPORATION
Under Section 805 of the Business Corporation Law
We, the undersigned, being the President and Secretary of SENECA FOODS
CORPORATION, do hereby certify as follows:
FIRST: The name of the Corporation is SENECA FOODS CORPORATION. The
name under which the Corporation was formed is SENECA GRAPE JUICE CORPORATION.
SECOND: The certificate of incorporation of the Corporation was filed
by the Department of State on August 17, 1949.
THIRD: The certificate of incorporation of the Corporation is hereby
amended to:
(a) Authorize a new class of ten million (10,000,000) shares of
Common Stock of the par value of $0.25 to be designated Class A Common
Stock;
(b) Reclassify the existing class of Common Stock as Class B Common
Stock; (c) Establish the express terms of the Class A Common Stock and
the Class B Common Stock. To accomplish this, Articles 3 and 4 of the
Certificate of Incorporation, are hereby amended to read in
their entirety as follows:
3. 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.
4. 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.
FOURTH: Upon the filing of this certificate by the Department of State,
the 2,796,555 issued shares and the 7,203,445 unissued shares of the Corporation
shall be changed into (1) 2,796,555 issued shares and 7,203,445 unissued shares
of Class A Common Stock and (2) 2,796,555 issued shares and 7,203,445 unissued
shares of Class B Common Stock at the rate of one share of Class A Common Stock
and one share of Class B Common Stock for each current outstanding share of
Common Stock.
FIFTH: Article 7 of the certificate of incorporation of the Corporation
is amended to change the office of the Corporation. To accomplish this, Article
7 of the certificate of incorporation is hereby amended to read in its entirety
as follows:
7. 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.
SIXTH: The foregoing amendments of the certificate of incorporation
were authorized at a meeting of the Board of Directors, followed by the votes
cast in person or by proxy of the holders of record of a majority of the
outstanding shares entitled to vote at the annual shareholders meeting of the
Corporation, except that the amendment contained in Article FIFTH hereof was not
voted upon by shareholders.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment this 5th day of August 1995 and affirm that the statements made herein
are true under penalty of perjury.
Kraig H. Kayser, President
Jeffrey L. Van Riper, Secretary