Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
PRO-FAC COOPERATIVE, INC.
Pursuant to Section 5 of the
Cooperative Corporations Law
We, the undersigned, the President and the Secretary of Pro-Fac
Cooperative, Inc. (the "Corporation"), do hereby certify as follows:
1. The name of the Corporation is Pro-Fac Cooperative, Inc.
2. The Certificate of Incorporation of Pro-Fac Cooperative, Inc. was filed in
the office of the Secretary of State on October 17, 1960.
3. The Certificate of Incorporation is hereby amended:
(a) To delete all references to special membership interests;
(b) to delete certain designations, relative rights, and limitations of
the classes of common stock of the Corporation; and
(c) to renumber certain paragraphs as a result of the amendments included
herein.
The Corporation created special membership interests and inserted designations,
relative rights, and limitations of classes of shares of common stock of the
Corporation pursuant to the terms of a Restated Certificate of Incorporation
filed in the office of the Secretary of State on March 14, 1999. On July 19,
2001, the Corporation exercised its right to repurchase all of its shares of
Class B Common Stock and special membership interests and, therefore, desires to
omit all references to such special membership interests and Class Common B
Stock in the Restated Certificate of Incorporation.
4. The text of the Certificate of Incorporation, as so amended, is hereby
restated to read as herein set forth in full:
1. The name of the Corporation is Pro-Fac Cooperative, Inc.
2. The purposes for which the corporation is to be formed are:
(a) To engage in activities connected with the marketing, processing,
manufacture and sale of agricultural products, including, without
limitation, the purchase, financing, production, manufacture,
warehousing, cultivating, harvesting, preservation, drying,
processing, cleansing, canning, blending, packing, grading,
storing, handling, utilization, shipping, marketing,
merchandising, and selling of agricultural and food products of
its members and the by-products thereof.
(b) To engage as a cooperative purchasing association in activities
relating to the purchase of supplies for producers of
agricultural products.
(c) To perform services connected with the acquisition for its
members of supplies and articles of common use, including
livestock, equipment, machinery, food, products and family and
other household and personal supplies to be used or consumed by
members, their families and guests.
(d) To do all and everything incidental and necessary for the
accomplishment of any of the purposes or the attainment of any of
the objects or the furtherance of any of the powers hereinabove
set forth or permitted under Sections 13 and 14 of Article 2 as
limited by Article 6 of the Cooperative Corporation Law of the
State of New York, individually or as agent either alone or in
association with other corporations, firms or individuals.
3. Its duration shall be perpetual.
4. Its principal business office is to be located in the County of
Monroe, State of New York.
5. The number of directors of the Corporation shall not be less than 11
nor more than 18, the exact number to be fixed from time to time in
the Corporation's Bylaws.
6. The Corporation shall have the authority to issue an aggregate of
62,000,000 shares of capital stock, consisting of 7,000,000 shares of
Common Stock, par value $5.00 per share ("Common Stock"), 5,000,000
shares of Non-Cumulative Preferred Stock, par value of $25.00 per
share (the "Non-Cumulative Preferred Stock"), 10,000,000 shares of
Class A Preferred Stock, par value of $1.00 per share (the "Class A
Preferred Stock"), 10,000,000 shares of Class B Preferred Stock, par
value of $1.00 per share (the "Class B Preferred Stock"), 10,000,000
shares of Class C Preferred Stock, par value of $1.00 per share (the
"Class C Preferred Stock"), 10,000 000 shares of Class D Preferred
Stock, par value of $1.00 per share (the "Class D Preferred Stock")
and 10,000,000 shares of Class E Preferred Stock, par value of $1.00
per share (the "Class E Preferred Stock" and, collectively, with the
Non-Cumulative Preferred Stock, the Class A Preferred Stock, the Class
B Preferred Stock, the Class C Preferred Stock and the Class D
Preferred Stock, "Preferred Stock").
The following is a statement of the designations, powers, preferences and
rights in respect of the classes of the capital stock of the Corporation, and
the qualifications, limitations or restrictions thereof, and of the authority
with respect thereto expressly vested in the Board of Directors of the
Corporation (the "Board of Directors"):
DESIGNATION, PREFERENCES AND RIGHTS OF NON-CUMULATIVE PREFERRED STOCK.
(a) The shares of the Non-Cumulative Preferred Stock may be issued in
one or more annual series, which the Board of Directors shall
have the authority to establish, the shares of each such series
to be designated by the year of issuance so as to distinguish
them from shares of all other series.
The holders of the Non-Cumulative Preferred Shares shall be
entitled to receive as and when declared by the Board of
Directors out of funds legally available therefor dividends at
such rate as may, from time to time, be determined by the Board
of Directors, but not less than 6 percent per annum of the par
value of such shares. Such dividends, if any, shall
be non-cumulative and shall be payable at such times as shall be
determined by the Board of Directors. After full non-cumulative
dividends at the rate determined by the Board of Directors for
the then current year shall have been declared and paid or set
apart for payment to the holders of Preferred Stock, dividends
may be declared and paid or set apart for payment to the holders
of Common Stock.
Subject to the foregoing provisions, the Non-Cumulative Preferred Stock shall
not be entitled to participate in any other or additional surplus or net profits
of the Corporation. The Corporation shall be entitled from time to time to
retire the whole or any portion or series of its Non-Cumulative Preferred Stock
upon payment of the par value of such stock plus all accrued dividends unpaid at
the date of such retirement. Such retirement shall be effected by payment out of
funds legally available for such purpose, but no such stock shall be redeemed
for cash under circumstances which would produce any impairment of the capital
or capital stock of the Corporation. Such retirement shall be on such other
terms and conditions as may be determined by the Board of Directors, provided
that no shares of the Non-Cumulative Preferred Stock shall be retired except
upon 90 days written notice of such retirement given to the holders thereof.
Upon dissolution or other termination of the Corporation of its business, or the
distribution of its assets, prior to any payment to the holders of the Common
Stock, the holders of the Non-Cumulative Preferred Stock shall first receive the
full par value of such stock, together with the amount of such dividends as have
been declared but are unpaid as of such distribution of payment.
DESIGNATION, PREFERENCES AND RIGHTS OF CLASS A PREFERRED STOCK, THE CLASS B
PREFERRED STOCK, THE CLASS C PREFERRED STOCK, THE CLASS D PREFERRED STOCK AND
THE CLASS E PREFERRED STOCK; GENERAL.
(a) Each of the Class A Preferred Stock, the Class B Preferred Stock,
the Class C Preferred Stock, the Class D Preferred Stock and the
Class E Preferred Stock may be issued from time to time by the
Board of Directors as shares of one or more series of Class A
Preferred Stock, Class B Preferred Stock, Class C Preferred
Stock, Class D Preferred Stock or Class E Preferred Stock, as the
case may be, and the Board of Directors is expressly authorized,
prior to issuance, in the resolution or resolutions providing for
the issue of shares of each particular series of any such class
of such Preferred Stock, to fix the following:
(i) The distinctive serial designation of such series which
shall distinguish it from other series;
(ii) The number of shares included in such series, which number
may be increased or decreased from time to time unless
otherwise provided by the Board of Directors in creating the
series;
(iii)The annual dividend rate (or methods of determining such
rate) for shares of such series, the date or dates upon
which, and the form or method or payments in which, such
dividends shall be payable and, subject to paragraph (c)
below, the relative priority of the right to such dividends;
(iv) Whether dividends on the shares of such series shall be
cumulative or noncumulative, and, in the case of shares of
any series having cumulative dividend rights, the date or
dates or method of determining the date or dates from which
dividends on the shares of such series shall be cumulative;
(v) The amount or amounts which shall be paid out of the assets
of the Corporation to the holders of the shares of such
series upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation and, subject to
paragraph (c) below, the relative priority of the right to
such distribution;
(vi) The price or prices at which, the period or periods within
which and the terms and conditions upon which the shares of
such series may be redeemed, in whole or in part, at the
option of the Corporation;
(vii)The obligation, if any, of the Corporation to purchase or
redeem shares of such series pursuant to a sinking fund or
otherwise and the price or prices at which, the period or
periods within which and the terms and conditions upon which
the shares of such series shall be redeemed, in whole or in
part, pursuant to such obligations;
(viii) The period or periods within which and the terms and
conditions, if any, including the price or prices or the
rate or rates of conversion and the terms and conditions of
any adjustments thereof, upon which the shares of such
series shall be convertible at the option of the holder into
shares of any class of stock or into shares of any other
series of such class of preferred stock, except into shares
of a class having rights or preferences as dividends or
distribution of assets upon liquidation which are prior or
superior in rank to those of shares being converted;
(ix) The voting rights, if any, of the shares of such series in
addition to those required by law; and
(x) Any other relative designations, rights, preferences,
privileges, voting powers or limitations of the shares of
the series not inconsistent herewith or with applicable law.
(b) All shares of Class A Preferred Stock, Class B Preferred Stock,
Class C Preferred Stock, Class D Preferred Stock and Class E
Preferred Stock, (i) shall rank senior in priority to the Common
Stock and, as determined by the Board of Directors, on a parity
with or junior in priority to the Non-Cumulative Preferred Stock
in respect of the right to receive dividends and the right to
receive payments out of the assets of the Corporation upon
voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, (ii) shall, with respect to other shares of
its class, be of equal rank with respect to all other shares of
such class, regardless of series, and (iii) shall be identical in
all respects except as provided in paragraph (a) above. The
shares of any one series of the Class A Preferred Stock, the
Class B Preferred Stock, the Class C Preferred Stock, the Class D
Preferred Stock or the Class E Preferred Stock shall be identical
with each other in all respects except as to the dates from and
after which dividends thereon shall be cumulative. In case the
stated dividends or the amounts payable on liquidation are not
paid in full, the shares of any series of the Class A
Preferred Stock, the Class B Preferred Stock, the Class C
Preferred Stock, the Class D Preferred Stock or the Class E
Preferred Stock shall share ratably with the shares of all other
series of Class A Preferred Stock, Class B Preferred Stock, Class
C Preferred Stock, Class D Preferred Stock or Class E Preferred
Stock, as the case may be, in the payment of dividends, including
accumulations, if any, in accordance with the sums which would be
payable on said shares if all dividends were declared and paid in
full, and in any distribution of assets other than by way of
dividends in accordance with the sums which would be payable on
such distribution if all sums payable were discharged in full.
Shares of Class A Preferred Stock, Class B Preferred Stock, Class
C Preferred Stock, Class D Preferred Stock and Class E Preferred
Stock redeemed, purchased or otherwise acquired by the
Corporation (including shares surrendered for conversion) shall,
as determined by the Board of Directors and subject to applicable
law, be canceled and thereupon restored to the status of
authorized but unissued Class A Preferred Stock, Class B
Preferred Stock, Class C Preferred Stock, Class D Preferred Stock
or Class E Preferred Stock, as the case may be, undesignated as
to series, or retained as treasury shares.
(c) Except as otherwise provided by the Board of Directors in
accordance with paragraph (a) above in respect of any series of
the Class A Preferred Stock, the Class B Preferred Stock, the
Class C Preferred Stock, the Class D Preferred Stock or the Class
E Preferred Stock or as otherwise expressly required by law, the
Class A Preferred Stock, the Class B Preferred Stock, the Class C
Preferred Stock, the Class D Preferred Stock and the Class E
Preferred Stock shall have no voting rights.
(d) Upon dissolution or other termination of the Corporation or its
business, or the distribution of its assets, the holders of each
share of Class A Preferred Stock, Class B Preferred Stock, Class
C Preferred Stock, Class D Preferred Stock and Class E Preferred
Stock shall be entitled to be paid out of the assets of the
Corporation available for distribution to its shareholders,
before any payment or declaration and setting apart for payment
of any amount shall be made in respect of the Common Stock.
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DESIGNATION, PREFERENCES AND RIGHTS OF CLASS A CUMULATIVE PREFERRED STOCK.
1. CERTAIN DEFINITIONS
As used herein, the following terms shall have the following meanings (with
terms defined in the singular having comparable meanings when used in the plural
and vice versa), unless the context otherwise requires:
"Board of Directors" means the Board of Directors of the Corporation.
"Business Day" means any day other than a Saturday, Sunday, national
holiday or other day on which commercial banks in New York City are authorized
or required to close under the laws of the State of New York.
"Capital Stock" means any and all shares, interests, participants, rights
or other equivalents (however designated) of corporate stock. "Common Stock"
means the Common Stock, par value $5.00 per share, of the Corporation and any
other class of common stock hereafter authorized by the Corporation from time to
time.
"Corporation" means Pro-Fac Cooperative, Inc.
"Cumulative Preferred Stock" means the Class A Cumulative Preferred Stock,
par value $1.00 per share, of the Corporation.
"Dividend Payment Date" means the April 30, July 31, October 31 and January
31 of each year.
"Dividend Period" means the Initial Dividend Period and, thereafter, each
Quarterly Dividend Period.
"Dividend Record Date" means, with respect to the dividend payable on each
Dividend Payment Date, the immediately preceding April 15, July 15, October 15
or January 15 or such other record date as may be designated by the Board of
Directors with respect to the dividend payable on such Dividend Payment Date;
provided, however, that such record date may not be more than fifty (50) days
prior to such Dividend Payment Date.
"Holder" means a registered holder of shares of Cumulative Preferred Stock.
"Initial Dividend Period" means, with respect to each share of Cumulative
Preferred Stock, the dividend period commencing on the Issue Date of such share
of Cumulative Preferred Stock and ending on and including the immediately
succeeding Dividend Payment Date.
"Issue Date" means, with respect to each share of Cumulative Preferred
Stock, the date upon which such share was originally issued by the Corporation.
"Junior Dividend Securities" has the meaning specified in Section 3(a)
hereof and includes the Common Stock.
"Junior Liquidation Securities" has the meaning specified in Section 3(a)
hereof and includes the Common Stock.
"Liquidation Preference" means, with respect to each share of Cumulative
Preferred Stock, the Original Liquidation Preference, plus an amount in cash
equal to all accrued and unpaid dividends (including an amount equal to a
prorated dividend from the last Dividend Payment Date to the date such
Liquidation Preference is being determined). The Liquidation Preference of a
share of Cumulative Preferred Stock will increase on a daily basis as dividends
accrue on such share and will decrease only to the extent such dividends are
actually paid.
"Non-Cumulative Amount" has the meaning specified in Section 4(a) hereof.
"Non-Cumulative Preferred Stock" means the Non-Cumulative Preferred Stock,
par value $25.00 per share, of the Corporation.
"Original Liquidation Preference" means $25.00 per share of Cumulative
Preferred Stock.
"Other Class A Series" means any series of Class A Preferred Stock, par
value $1.00 per share, of the Corporation other than the Cumulative Preferred
Stock.
"Parity Dividend Securities" has the meaning specified in Section 3(b)
hereof and includes the Non-Cumulative Preferred Stock and any Other Class A
Series.
"Parity Liquidation Securities" has the meaning specified in Section 3(b)
hereof and includes the Non-Cumulative Preferred Stock and any Other Class A
Series.
"Quarterly Dividend Period" means the quarterly period commencing on and
including the day after each Dividend Payment Date and ending on and including
the immediately subsequent Dividend Payment Date.
"Redemption" has the meaning specified in Section 6(a) hereof.
"Redemption Date" has the meaning specified in Section 6(b) hereof.
"Redemption Notice" has the meaning specified in Section 6(b) hereof.
"Redemption Price" means a price per share equal to the Liquidation
Preference as of the applicable Redemption Date.
"Replaced Securities" has the meaning specified in Section 7 hereof.
"Replacing Securities" has the meaning specified in Section 7 hereof.
"Senior Dividend Series" has the meaning specified in Section 3(c) hereof.
"Senior Liquidation Securities" has the meaning specified in Section 3(c)
hereof.
2. DESIGNATION
The series of preferred stock authorized hereunder shall be designated as
the "Class A Cumulative Preferred Stock." The number of shares constituting such
series shall initially be 10,000,000, which number may from time to time be
changed (but not above 10,000,000 or below the number then outstanding) by the
Board of Directors. The par value of the Cumulative Preferred Stock shall be
$1.00 per share. All shares of Cumulative Preferred Stock shall be identical
with each other in all respects except as to the dates from and after which
dividends thereon shall be cumulative.
3. RANK
The Cumulative Preferred Stock shall rank, with respect to priority of
dividend rights or rights on liquidation, dissolution and winding-up of the
affairs of the Corporation or both:
(a) senior to all classes or series of Common Stock of the Corporation and
to any other class or series of Capital Stock (except the
Non-Cumulative Preferred Stock and any Other Class A
Series) that does not expressly provide that it ranks senior to or on
a parity with the Cumulative Preferred Stock as to dividends or upon
liquidation, dissolution and winding-up, as the case may be (with
respect to such junior dividend rights or junior rights upon
liquidation, dissolution and winding up, collectively referred to, as
the context may require, as "Junior Dividend Securities" or "Junior
Liquidation Securities");
(b) on a parity with the Non-Cumulative Preferred Stock and any Other
Class A Series and each class or series of Capital Stock that
expressly provides that it ranks on a parity with the Cumulative
Preferred Stock as to dividends or upon liquidation, dissolution and
winding-up, as the case may be (with respect to such parity dividend
rights or parity rights upon liquidation, dissolution and winding-up,
collectively referred to, as the context may require, as "Parity
Dividend Securities" or "Parity Liquidation Securities"); and
(c) junior to each class or series of Capital Stock (except any Other
Class A Series) which expressly provides that it ranks senior to the
Cumulative Preferred Stock as to dividends or upon liquidation,
dissolution and winding-up, as the case may be (with respect to such
senior dividend rights or senior rights upon liquidation, dissolution
and winding-up collectively referred to, as the context may require,
as "Senior Dividends Securities" or "Senior Liquidation Securities").
4. DIVIDENDS. ETC.
(a) Beginning on the applicable Issue Date, the Holders of outstanding
shares of Cumulative Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors, but only out of
funds legally available for the payment of dividends, dividends
payable in cash at the rate per share of $0.43 per quarter and no
more; provided that the dividend payable on October 31, 1995 on any
shares of Cumulative Preferred Stock to holders of record thereof on
October 15, 1995 shall equal $0.43 per share. All dividends shall be
fully cumulative and shall accrue (whether or not earned or declared,
whether or not permitted under any agreement of the Corporation and
whether or not there are funds legally available therefor), without
interest, from the first day of the Quarterly Dividend Period with
respect to which such dividend may be payable as herein provided,
except that with respect to the first dividend payable with respect to
any share of Cumulative Preferred Stock, such dividend shall accrue
from the applicable Issue Date; provided that with respect to the
dividend payable on October 31, 1995 with respect to any share of
Cumulative Preferred Stock, such dividend shall equal $0.43. All
dividends shall be cumulative and shall be payable in arrears on each
Dividend Payment Date commencing on the Dividend Payment Date
immediately succeeding the applicable Issue Date, in preference to and
with priority over dividends on Junior Dividend Securities. No full
dividend and no distribution shall be declared by the Board of
Directors or paid or set apart for payment by the Corporation on the
Cumulative Preferred Stock for any period unless dividends aggregating
at least the Non-Cumulative Amount have been or contemporaneously are
declared on the Non-Cumulative Preferred Stock (including any
dividends previously declared for the same stated dividend payment
date pursuant to this sentence), payable not later than the stated
dividend payment date for the Non-Cumulative Preferred Stock on or
next following the date of payment of such dividend or distribution on
the Cumulative Preferred Stock, and a sum has been or
contemporaneously is set apart sufficient for such payment. The
"Non-Cumulative Amount" means the pro rata portion of the anticipated
annual dividends (in any case, not less than six percent per annum) on
the Non-Cumulative Preferred Stock calculated for the period from, but
not including, its immediately preceding stated dividend payment date
(whether or not any dividend was paid on such date) through, and
including, the date of payment of such dividend or distribution on the
Cumulative Preferred Stock.
(b) All dividends and distributions paid with respect to shares of the
Cumulative Preferred Stock pursuant to Section 4(a) hereof shall be
paid pro rata to the Holders entitled thereto. No full dividend and no
distribution shall be declared by the Board of Directors or paid or
set apart for payment by the Corporation on Parity Dividend Securities
for any period unless full cumulative dividends have been or
contemporaneously are declared and a sum set apart sufficient for such
payment on the Cumulative Preferred Stock for all Dividend Periods
terminating on or prior to the date of payment of such full dividends
on the Parity Dividend Securities. If any dividends are not paid in
full upon the shares of the Cumulative Preferred Stock and the Parity
Dividend Securities, (i) all dividends declared for any period upon
shares of the Cumulative Preferred Stock and the Parity Dividend
Securities shall be declared pro rata so that the amount of dividends
declared on the Cumulative Preferred Stock and on each class or series
of the Parity Dividend Securities shall in all cases bear to each
other the same ratio that accrued dividends (or, in the case of the
Non-Cumulative Preferred Stock, that portion of the Non-Cumulative
Amount which has not previously been declared and set apart) on the
Cumulative Preferred Stock and on each class or series of Parity
Dividend Securities bear to each other, and (ii) a sum shall be set
apart sufficient to pay any such declared dividends which are not
being paid immediately. Any dividend not paid on the Cumulative
Preferred Stock pursuant to this Section 4 shall be fully cumulative
and shall accrue, without interest, as set forth in Section 4(a)
hereof and shall be in arrears until paid.
(c) The Corporation shall not declare, pay or set apart for payment any
dividend on any of the Junior Dividend Securities or make any
distribution in respect thereof either directly or indirectly and
whether in cash, obligations or shares of the Corporation or other
property (other than dividends or distributions in Junior Dividend
Securities which are no higher in priority with respect to the
Cumulative Preferred Stock, as to rights on liquidation, dissolution
and winding-up, than the Junior Dividend Securities upon which such
dividend or distribution is issued), unless on or prior to the date of
declaration of such dividend or distribution on the Junior Dividend
Securities full cumulative dividends have been or contemporaneously
are declared in compliance with Section 4(a) hereof, and a sum set
apart sufficient for such payment on the Cumulative Preferred Stock
for all Dividend Periods terminating on or prior to the date of
payment of such dividend or distribution on the Junior Dividend
Securities.
(d) Except as otherwise provided in Section 4(a) hereof with respect to
the dividend payable on October 31, 1995, the amount of dividends
payable on the Cumulative Preferred Stock for any period less than a
full Quarterly Dividend Period (including the Initial Dividend Period)
and the Non-Cumulative Amount shall be computed on the basis of twelve
30-day months and a 360-day year. Dividends shall accrue on a daily
basis during each Dividend Period as provided above, and the
Liquidation Preference of each outstanding share of Cumulative
Preferred Stock shall be correspondingly increased on a daily basis.
Each such dividend shall be payable to Holders of record as their
names shall appear on the stock books of the Corporation on the
Dividend Record Date for such dividends, except that dividends in
arrears for any past Dividend Payment Date may be declared and paid at
any time without reference to such regular Dividend Payment Date to
Holders of record on such date not more than fifty (50) days prior to
the date of payment as shall be determined by the Board of Directors.
(e) Dividends shall cease to accrue in respect of any particular share of
Cumulative Preferred Stock on the Redemption Date with respect thereto
unless the Corporation defaults in payment of the Redemption Price
with respect to such share of Cumulative Preferred Stock.
5. PAYMENT ON LIQUIDATION
Upon any liquidation, dissolution or winding-up of the affairs of the
Corporation, whether voluntary or involuntary, the Holders of Cumulative
Preferred Stock will be entitled to receive out of the assets of the Corporation
available for distribution to the holders of its Capital Stock an amount in cash
per share equal to the Liquidation Preference determined as of the date of such
liquidation, dissolution or winding-up, before any payment or other distribution
is made on any Junior Liquidation Securities. Holders of Cumulative Preferred
Stock shall not be entitled to any other distribution in the event of
liquidation, dissolution or winding-up of the affairs of the Corporation. If
upon any liquidation, dissolution or winding-up of the affairs of the
Corporation, the assets of the Corporation are not sufficient to pay in full the
liquidation payments payable to the holders of outstanding shares of the
Cumulative Preferred Stock and all Parity Liquidation Securities, then the
holders of all such shares shall share equally and ratably in any distribution
of assets in proportion to the full liquidation payments determined as of the
date of such liquidation, dissolution or winding-up, to which each of them is
entitled. For the purposes of this Section 5, neither a consolidation or merger
of the Corporation with or into one or more corporations nor a sale, lease,
exchange or transfer of all or substantially all of the Corporation's assets
shall be deemed to be a liquidation, dissolution or winding-up of the
Corporation.
6. REDEMPTION
(a) Redemption. The Corporation may redeem at the option of the
Corporation in its sole discretion, at any time or from time to time,
in whole or in part, shares of Cumulative Preferred Stock (a
"Redemption") at the Redemption Price. With respect to any Redemption
of fewer than all the outstanding shares of Cumulative Preferred
Stock, the number of shares to be redeemed shall be determined by the
Board of Directors and the shares to be redeemed shall be selected pro
rata or by lot, except that the Corporation may first redeem all
shares held by any Holder of a number of shares not to exceed 100 as
may be specified by the Corporation. The Board of Directors shall have
full power and authority, subject to the provisions herein contained,
to prescribe the terms and conditions upon which shares of the
Cumulative Preferred Stock shall be redeemed from time to time.
(b) Notice of Redemption. Notice of any Redemption of shares of Cumulative
Preferred Stock shall be given by publication at least once in a
newspaper printed in the English language and customarily published on
each Business Day and of general circulation in the County of Monroe,
State of New York and in such other local, regional or national
publications, if any, as the Board of Directors may determine. Such
publication shall be not more than sixty (60) days nor less than
thirty (30) days prior to the date fixed for Redemption (the
"Redemption Date"). Notice of any Redemption of shares of Cumulative
Preferred Stock specifying the time and place of Redemption and the
Redemption Price (a "Redemption Notice"), shall also be mailed not
more than sixty (60) nor less than thirty (30) days prior to the
Redemption Date in a postage prepaid envelope to each Holder of
Cumulative Preferred Stock to be redeemed at the address for such
Holder shown on the Corporation's Records. No failure to give such
Redemption Notice nor any defect therein shall affect the validity of
the procedure for the Redemption of any shares of Cumulative Preferred
Stock to be redeemed. Each such Redemption Notice shall state:
i) the Redemption Date;
ii) the Redemption Price;
iii) the number of shares of Cumulative Preferred Stock to be redeemed
and, if fewer than all the shares of Cumulative Preferred Stock
held by a
Holder are to be redeemed, the number of shares thereof to be
redeemed from such Holder;
iv) the manner and place or places at which payment for the shares of
Cumulative Preferred Stock offered for Redemption will be made
upon presentation and surrender to the Corporation of the
certificates evidencing the shares being redeemed;
v) that dividends on the shares of Cumulative Preferred Stock being
redeemed shall cease to accrue on the Redemption Date unless the
Corporation defaults in the payment of the Redemption Price with
respect to such shares; and
vi) that the rights of Holders of Cumulative Preferred Stock as
stockholders of the Corporation with respect to shares being
redeemed shall terminate as of the Redemption Date unless the
corporation defaults in the payment of the Redemption Price with
respect to such shares.
Upon mailing any such Redemption Notice, the Corporation shall
become obligated to redeem at the Redemption Price on the
applicable Redemption Date all shares of Cumulative Preferred
Stock therein specified.
(c) On any Redemption Date, the full Redemption Price shall become payable
in cash for the shares of Cumulative Preferred Stock being redeemed on
such Redemption Date. As a condition of payment of the Redemption
Price, each Holder of Cumulative Preferred Stock must surrender the
certificate or certificates representing the shares of Cumulative
Preferred Stock being redeemed to the Corporation in the manner and at
the place designated in the Redemption Notice. Each surrendered
certificate shall be canceled and retired. All Redemption payments
will be made to the Holders of the shares being redeemed.
(d) On any Redemption Date, unless and to the extent that the Corporation
defaults in the payment of the Redemption Price for any shares called
for Redemption, dividends on the Cumulative Preferred Stock called for
Redemption shall cease to accumulate and all rights of Holders of such
shares shall terminate, except for the right to receive the Redemption
Price without interest.
7. RESTRICTION ON REDEMPTIONS AND OTHER ACQUISITIONS OF CERTAIN STOCK
Except in the case of repurchases of Common Stock by the Corporation
pursuant to Article II, Section 7 of the Bylaws of the Corporation, the
Corporation shall not purchase, redeem or otherwise acquire for consideration,
directly or indirectly, any shares of Cumulative Preferred Stock, Parity
Dividend Securities, Parity Liquidation Securities, Junior Dividend Securities
or Junior Liquidation Securities unless on or prior to the date of such
purchase, redemption or acquisition full cumulative dividends have been or
contemporaneously are declared in compliance with Section 4(a) hereof, and a sum
set apart sufficient for such payment on the Cumulative Preferred Stock for all
Dividend Periods terminating on or prior to such date. Notwithstanding the
foregoing, the Corporation may acquire Cumulative Preferred Stock, Parity
Dividend Securities, Parity Liquidation Securities, Junior Dividend Securities
or Junior Liquidation Securities (the "Replaced Securities") as a result of a
reclassification, exchange or conversion of the Replaced Securities solely into
or for
other Capital Stock of the Corporation (the "Replacing Securities") or through
the use solely of the proceeds of a substantially simultaneous sale of Replacing
Securities provided in any such case that the Replacing Securities are no higher
in priority with respect to the Cumulative Preferred Stock and the
Non-Cumulative Preferred Stock, as to either dividend rights or rights on
liquidation, dissolution and winding-up, than the Replaced Securities.
8. VOTING RIGHTS
The Cumulative Preferred Stock, except as otherwise required by law, shall
be non-voting.
9. MUTILATED OR MISSING CUMULATIVE PREFERRED STOCK CERTIFICATES
If any of the Cumulative Preferred Stock certificates shall be mutilated,
lost, stolen or destroyed, the Corporation shall issue, in exchange and
substitution for and upon cancellation of the mutilated Cumulative Preferred
Stock certificate, or in lieu of and substitution for the Cumulative Preferred
Stock certificate lost, stolen or destroyed, a new Cumulative Preferred Stock
certificate of like tenor and representing an equivalent number of shares of
Cumulative Preferred Stock, but only upon receipt of evidence satisfactory to
the Corporation of such loss, theft or destruction of such Cumulative Preferred
Stock certificate and indemnity and bond, if requested.
10. REISSUANCE OF CUMULATIVE PREFERRED STOCK
Shares of Cumulative Preferred Stock that have been issued and reacquired
in any manner, including shares purchased or redeemed or exchanged, shall (upon
compliance with any applicable provisions of the laws of the State of New York)
have the status of authorized and unissued shares of Class A Preferred Stock of
the Corporation undesignated as to series and may be redesignated and reissued
as part of any series of Class A Preferred Stock of the Corporation.
11. BUSINESS DAY
If any payment, redemption or exchange shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment, redemption
or exchange shall be made on the immediately succeeding Business Day.
12. HEADINGS OF SUBDIVISIONS
The headings of various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
13. SEVERABILITY OF PROVISIONS
If any right, preference or limitation of the Cumulative Preferred Stock
set forth herein is invalid, unlawful or incapable of being enforced by reason
of any rule or law or public policy, all other rights, preferences and
limitations set forth herein which can be given effect without the invalid
unlawful or unenforceable right, preference or limitation shall, nevertheless,
remain in full force and effect, and no right, preference or limitation herein
set forth shall be deemed dependent upon any other such right, preference or
limitation unless so expressed herein.
14. LIMITATIONS
Except as may otherwise be required by law, the shares of Cumulative
Preferred Stock shall not have any powers, preferences or relative
participating, optional or other special rights other than those specifically
set forth herein or otherwise in the Certificate of Incorporation of the
Corporation.
DESIGNATION, PREFERENCES AND RIGHTS OF CLASS B, Series 1 10% CUMULATIVE
PREFERRED STOCK
1. CERTAIN DEFINITIONS
As used herein, the following terms shall have the following meanings (with
terms defined in the singular having comparable meanings when used in the plural
and vice versa) unless the context otherwise requires:
"Annual Dividend Period" means the annual period commencing on and
including each Dividend Payment Date and ending on and including the day before
the immediately subsequent Dividend Payment Date.
"Board of Directors" means the Board of Directors of the Corporation.
"Business Day" means any day other than a Saturday, Sunday, national
holiday or other day on which commercial banks in New York City are authorized
or required to close under the laws of the State of New York.
"Capital Stock" means any and all shares, interest, participations, rights
or other equivalents (however designated) of corporate stock.
"Class A Series" means any series of Class A Preferred Stock, par value
$1.00 per share, of the Corporation.
"Common Stock" means the Common Voting Stock, par value $5.00 per share, of
the Corporation and any other class of common stock hereafter authorized by the
Corporation from time to time.
"Corporation" means Pro-Fac Cooperative, Inc.
"Dividend Payment Date" means April 1 of each year.
"Dividend Period" means the Initial Dividend Period and thereafter each
Annual Dividend Period.
"Dividend Record Date" means with respect to the dividend payable on each
Dividend Payment Date the immediately preceding March 15 or such other record
date as may be designated by the Board of Directors with respect to the dividend
payable on such Dividend Payment Date.
"Holder" means a registered holder of shares of Series 1 Preferred Stock.
"Initial Dividend Period" means, with respect to each share of Series 1
Preferred Stock, the dividend period commencing on the Issue Date of such share
of Series 1 Preferred Stock and ending on and including the day before the
immediately succeeding Dividend Payment Date.
"Issue Date" means, with respect to each share of Series 1 Preferred Stock,
the April 1 or October 1 upon which or next succeeding the date upon which such
share was originally issued by the Corporation.
"Junior Dividend Securities" has the meaning specified in Section 3(a)
hereof and includes the Common Stock.
"Junior Liquidation Securities" has the meaning specified in Section 3(a)
hereof and includes the Common Stock.
"Liquidation Preference" means, with respect to each share of Series 1
Preferred Stock, the Original Liquidation Preference, plus an amount in cash
equal to all accrued and unpaid dividends (including an amount equal to a
prorated dividend from the last Dividend Payment Date to the date such
Liquidation Preference is being determined). The Liquidation Preference of a
share of Series 1 Preferred Stock will increase on a daily basis as dividends
accrue on such share and will decrease only to the extent such dividends are
actually paid.
"Non-Cumulative Amount" has the meaning specified in Section 4(a) hereof.
"Non-Cumulative Preferred Stock" means the Non-Cumulative Preferred Stock,
par value $25.00 per share, of the Corporation.
"Original Liquidation Preference" means $10.00 per share of Series 1
Preferred Stock.
"Other Class B Series" means any series of Class B Preferred Stock, par
value $1.00 per share, of the Corporation other than the Series 1 Preferred
Stock.
"Parity Dividend Securities" has the meaning specified in Section 3(b)
hereof and includes the Non-Cumulative Preferred Stock, any Class A Series and
any Other Class B Series.
"Parity Liquidation Securities" has the meaning specified in Section 3(b)
hereof and includes the Non-Cumulative Preferred Stock, any Class A Series, and
any Other Class B Series.
"Redemption" has the meaning specified in Section 6(a) hereof.
"Redemption Date" has the meaning specified in Section 6(b) hereof.
"Redemption Notice" has the meaning specified in Section 6(b) hereof.
"Redemption Price" means a price per share equal to the Liquidation
Preference as of the applicable Redemption Date.
"Replaced Securities" has the meaning specified in Section 7 hereof.
"Replacing Securities" has the meaning specified in Section 7 hereof.
"Senior Dividend Securities" has the meaning specified in Section 3(c)
hereof.
"Senior Liquidation Securities" has the meaning specified in Section 3(c)
hereof.
"Series 1 Preferred Stock" means the Class B, Series 1 10% Cumulative
Preferred Stock, par value $1.00 per share, of the Corporation.
2. DESIGNATION
The series of preferred stock authorized hereunder shall be designated as
the "Class B, Series 1 10% Cumulative Preferred Stock." The number of shares
constituting such series shall initially be 500,000, which number may from time
to time be changed (but not above 500,000 or below the number then outstanding)
by the Board of Directors. The par value of the Series 1 Preferred Stock shall
be $1.00 per share. All shares of Series 1 Preferred Stock shall be identical
with each other in all respects except as to the dates from and after which
dividends thereon shall be cumulative.
3. RANK
The Series 1 Preferred Stock shall rank, with respect to priority of
dividend rights or rights on liquidation, dissolution and winding-up of the
affairs of the Corporation or both:
(a) senior to all classes or series of Common Stock of the Corporation and
to any other class or series of Capital Stock (except the
Non-Cumulative Preferred Stock, any Class A Series, and any Other
Class B Series) that does not expressly provide that it ranks senior
to or on a parity with the Series 1 Preferred Stock as to dividends or
upon liquidation, dissolution and winding-up, as the case may be (with
respect to such junior dividend rights or junior rights upon
liquidation, dissolution and winding-up, collectively referred to, as
the context may require, as "Junior Dividend Securities" or "Junior
Liquidation Securities");
(b) on a parity with the Non-Cumulative Preferred Stock, any Class A
Series, and any Other Class B Series and each class or series of
Capital Stock that expressly provides that it ranks on a parity with
the Series 1 Preferred Stock as to dividends or upon liquidation,
dissolution and winding-up, as the case may be (with respect to such
parity dividend rights or parity rights upon liquidation, dissolution
and winding-up, collectively referred to, as the context may require,
as "Parity Dividend Securities" or "Parity Liquidation Securities");
and
(c) junior to each class or series of Capital Stock (except any Class A
Series or Other Class B Series) that expressly provides that it ranks
senior to the Series 1 Preferred Stock as to
dividends or upon liquidation, dissolution and winding-up, as the case
may be (with respect to such senior dividend rights or senior rights
upon liquidation, dissolution and winding-up, collectively referred
to, as the context may require, as "Senior Dividend Securities" or
"Senior Liquidation Securities").
4. DIVIDENDS; ETC.
(a) Beginning on the applicable Issue Date, the Holders of outstanding
shares of Series 1 Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors, but only out of funds
legally available for the payment of dividends, dividends payable in
cash at the rate per share of $1.00 per year and no more. All
dividends shall be fully cumulative and shall accrue (whether or not
earned or declared, whether or not permitted under any agreement of
the Corporation and whether or not there are funds legally available
therefor), without interest, from the first day of the Annual Dividend
Period with respect to which such dividend may be payable as herein
provided, except that with respect to the first dividend payable with
respect to any share of Series 1 Preferred Stock, such dividend shall
accrue from the applicable Issue Date. All dividends shall be
cumulative and shall be payable in arrears on each Dividend Payment
Date commencing on the Dividend Payment Date that follows the Dividend
Record Date immediately succeeding the applicable Issue Date, in
preference to and with priority over dividends on Junior Dividend
Securities. No full dividend and no distribution shall be declared by
the Board of Directors or paid or set apart for payment by the
Corporation on the Series 1 Preferred Stock for any period unless
dividends aggregating at least the Non-Cumulative Amount have been or
contemporaneously are declared on the Non-Cumulative Preferred Stock
(including any dividends previously declared for the same stated
dividend payment date pursuant to this sentence), payable not later
than the stated dividend payment date for the Non-Cumulative Preferred
Stock on or next following the date of payment of such dividend or
distribution on the Series 1 Preferred Stock, and a sum has been or
contemporaneously is set apart sufficient for such payment. The
"Non-Cumulative Amount" means the pro rata portion of the anticipated
annual dividends (in any case, not less than six percent per annum) on
the Non-Cumulative Preferred Stock calculated for the period from, but
not including, its immediately preceding stated dividend payment date
(whether or not any dividend was paid on such date) through, and
including, the date of payment of such dividend or distribution on the
Series 1 Preferred Stock.
(b) All dividends and distributions paid with respect to shares of the
Series 1 Preferred Stock pursuant to Section 4(a) hereof shall be paid
pro rata to the Holders entitled thereto. No full dividend and no
distribution shall be declared by the Board of Directors or paid or
set apart for payment by the Corporation on Parity Dividend Securities
for any period unless full cumulative dividends have been or
contemporaneously are declared and a sum set apart sufficient for such
payment of the Series 1 Preferred Stock for all Dividend Periods
terminating on or prior to the date of payment of such full dividends
on the Parity Dividend Securities. If any dividends are not paid in
full upon the shares of the Series 1 Preferred Stock and the Parity
Dividend Securities, (i) all dividends declared for any period upon
shares of the Series 1 Preferred Stock and the Parity Dividend
Securities shall be declared pro rata so that the amount of dividends
declared on the Series 1 Preferred Stock and on each class or series
of the Parity Dividend Securities shall in all cases bear to each
other the same ratio that accrued dividends (or, in the case of the
Non- Cumulative Preferred Stock, that portion of the Non-Cumulative
Amount which has not previously been declared and set apart) on the
Series 1 Preferred Stock and on each class or series of Parity
Dividend Securities bear to each other, and (ii) a sum shall be set
apart sufficient to pay any such declared dividends that are not being
paid immediately. Any dividend not paid on the Series 1 Preferred
Stock pursuant to this Section 4 shall be fully cumulative and shall
accrue, without interest, as set forth in Section 4(a) hereof and
shall be in arrears until paid.
(c) The Corporation shall not declare, pay or set apart for payment any
dividend on any of the Junior Dividend Securities or make any
distribution in respect thereof either directly or indirectly and
whether in cash, obligations or shares of the Corporation or other
property (other than dividends or distributions in Junior Dividend
Securities that are no higher in priority with respect to the Series 1
Preferred Stock, as to rights on liquidation, dissolution and
winding-up, than the Junior Dividend Securities upon which such
dividend or distribution is issued) unless on or prior to the date of
declaration of such dividend or distribution on the Junior Dividend
Securities full cumulative dividends have been or contemporaneously
are declared in compliance with Section 4(a) hereof, and a sum set
apart sufficient for such payment on the Series 1 Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of
such dividend or distribution on the Junior Dividend Securities.
(d) The amount of dividends payable on the Series 1 Preferred Stock for
any period less than a full Annual Dividend Period (including, in some
cases, the Initial Dividend Period) and the Non-Cumulative Amount
shall be computed on the basis of twelve 30 day months and a 360-day
year. Dividends shall accrue on a daily basis during each Dividend
Period as provided above, and the Liquidation Preference of each
outstanding share of Series 1 Preferred Stock shall be correspondingly
increased on a daily basis. Each such dividend shall be payable to
Holders of record as their names shall appear on the stock books of
the Corporation on the Dividend Record Date for such dividends, except
that dividends in arrears for any past Dividend Payment Date may be
declared and paid at any time without reference to such regular
Dividend Payment Date to Holders of record on such date not more than
fifty (50) days prior to the date of payment as shall be determined by
the Board of Directors.
(e) Dividends shall cease to accrue in respect of any particular share of
Series 1 Preferred Stock on the Redemption Date with respect thereto
unless the Corporation defaults in payment of the Redemption Price
with respect to such share of Series 1 Preferred Stock.
5. PAYMENT ON LIQUIDATION
Upon any liquidation, dissolution or winding up of the affairs of the
Corporation, whether voluntary or involuntary, the Holders of Series 1 Preferred
Stock will be entitled to receive out of the assets of the Corporation available
for distribution to the holders of its Capital Stock an amount in cash per share
equal to the Liquidation Preference determined as of the date of such
liquidation, dissolution or winding-up, before any payment or other distribution
is made on any Junior Liquidation Securities. Holders of Series 1 Preferred
Stock shall not be entitled to any other distribution in the event of
liquidation, dissolution or winding-up of the affairs of the Corporation. If
upon any liquidation, dissolution or winding-up of the affairs of the
Corporation, the assets of the Corporation are not sufficient to pay in full the
liquidation payments payable to the holder of outstanding shares of the Series 1
Preferred Stock and all Parity Liquidation Securities, then the holders of all
such shares shall share equally and ratably in any distribution of assets in
proportion to the full liquidation payments determined as of the date of such
liquidation, dissolution or winding-up to which each of them is entitled. For
the purposes of this Section 5, neither a consolidation or merger of the
Corporation with or into one or more corporations nor a sale, lease, exchange or
transfer of all or substantially all of the Corporation's assets shall be deemed
to be a liquidation, dissolution or winding-up of the Corporation.
6. REDEMPTION
(a) Redemption. The Corporation may redeem at the option of the
Corporation in its sole discretion, at any time or from time to time,
in whole or in part, shares of Series 1 Preferred Stock (a
"Redemption"), at the Redemption Price. With respect to any Redemption
of fewer than all the outstanding share of Series 1 Preferred Stock,
the number of shares to be redeemed and the manner of selecting the
shares to be redeemed (which may be pro rata by lot by Issue Date
based on whether the Holder is or has ceased to be an employee of the
Corporation or a subsidiary thereof, or such other method as the Board
of Directors deems appropriate) shall be determined by the Board of
Directors. The Board of Directors shall have full power and authority,
subject to the provisions herein contained, to prescribe the terms and
conditions upon which shares of the Series 1 Preferred Stock shall be
redeemed from time to time.
(b) Notice of Redemption. Notice of any Redemption of shares of Series 1
Preferred Stock, specifying the time and place of Redemption and the
Redemption Price (a "Redemption Notice"), shall be mailed, not more
than sixty (60) nor less than thirty (30) days prior to the date fixed
for Redemption (the "Redemption Date"), in a postage prepaid envelope
to each Holder of Series 1 Preferred Stock to be redeemed at the
address for such Holder shown on the Corporation's records. No failure
to give such Redemption Notice nor any defect therein shall affect the
validity of the procedure for the Redemption of any shares of Series 1
Preferred Stock to be redeemed. Each such Redemption Notice shall
state:
i) the Redemption Date;
ii) the Redemption Price;
iii) the number of shares of Series 1 Preferred Stock to be redeemed
and, if fewer than all the shares of Series 1 Preferred Stock
held by a Holder are to be redeemed, the number of shares thereof
to be redeemed from such Holder;
iv) the manner and place or places at which payment for the shares of
Series 1 Preferred Stock offered for Redemption will be made,
upon presentation and surrender to the Corporation of the
certificates evidencing the shares being redeemed (if such shares
are certificated shares);
v) that dividends on the shares of Series 1 Preferred Stock being
redeemed shall cease to accrue on the Redemption Date unless the
Corporation defaults in the payment of the Redemption Price with
respect to such shares; and
vi) that the rights of the Holders of Series 1 Preferred Stock as
stockholders of the Corporation with respect to shares being
redeemed shall terminate as of the Redemption Date unless the
Corporation defaults in the payment of the Redemption Price with
respect to such shares.
Upon mailing any such Redemption Notice, the Corporation shall
become obligated to redeem at the Redemption Price on the
applicable Redemption Date all shares of Series 1 Preferred Stock
therein specified.
(c) On any Redemption Date, the full Redemption Price shall become payable
in cash for the shares of Series 1 Preferred Stock being redeemed on
such Redemption Date. As a condition of payment of the Redemption
Price, if the shares of Series 1 Preferred Stock being redeemed are
certificated shares, each Holder of Series 1 Preferred Stock must
surrender the certificate or certificates representing the shares of
Series 1 Preferred Stock being redeemed to the Corporation in the
manner and at the place designated in the Redemption Notice. Each
surrendered certificate shall be canceled and retired. All Redemption
payments will be made to the Holder of the shares being redeemed.
(d) On any Redemption Date, except to the extent that the Corporation
defaults in the payment of the Redemption Price of any shares called
for Redemption, dividends on the Series 1 Preferred Stock called for
Redemption shall cease to accumulate and all rights of Holders of such
shares shall terminate except for the right to receive the Redemption
Price, without interest.
7. RESTRICTION ON REDEMPTION AND OTHER ACQUISITIONS OF CERTAIN STOCK
Except in the case of repurchases of Common Stock by the Corporation
pursuant to Article II, Section 7 of the Bylaws of the Corporation, the
Corporation shall not purchase, redeem or otherwise acquire for consideration,
directly or indirectly, any shares of Series 1 Preferred Stock, Parity Dividend
Securities, Parity Liquidation Securities, Junior Dividend Securities or Junior
Liquidation Securities unless on or prior to the date of such purchase,
redemption or acquisition full cumulative dividends have been or
contemporaneously are declared in compliance with Section (4)(a) hereof, and a
sum set apart sufficient for such payment, on the Series 1 Preferred Stock for
all Dividend Periods terminating on or prior to such date. Notwithstanding the
foregoing, the Corporation may acquire Series 1 Preferred Stock, Parity Dividend
Securities, Parity Liquidation Securities, Junior Dividend Securities or Junior
Liquidation Securities (the "Replaced Securities") as a result of a
reclassification, exchange or conversion of the Replaced Securities solely into
or for other Capital Stock of the Corporation (the "Replacing Securities"), or
through the use solely of the proceeds of a substantially simultaneous sale of
Replacing Securities, provided in any such case that the Replacing Securities
are no higher in priority with respect to the Series 1 Preferred Stock and the
NonCumulative Preferred Stock, as to either dividend rights or rights on
liquidation, dissolution and winding-up, than the Replaced Securities.
8. VOTING RIGHTS
The Series 1 Preferred Stock, except as otherwise required by law, shall be
non-voting.
9. MUTILATED OR MISSING SERIES 1 PREFERRED STOCK CERTIFICATES
If any of the Series 1 Preferred Stock certificates shall be mutilated,
lost, or destroyed, the Corporation shall issue, in exchange and substitution
for and upon cancellation of the mutilated Series 1 Preferred Stock certificate,
or in lieu of and substitution for the Series 1 Preferred Stock certificate
lost, stolen or destroyed, a new Series 1 Preferred Stock certificate of like
tenor and representing an equivalent number of shares of Series 1 Preferred
Stock, but only upon receipt of evidence satisfactory to the Corporation of such
loss, theft or destruction of such Series 1 Preferred Stock certificate and
indemnity and bond, if requested.
10. REISSUANCE OF SERIES 1 PREFERRED STOCK
Shares of Series 1 Preferred Stock that have been issued and reacquired in
any manner, including shares purchased or redeemed or exchanged, shall (upon
compliance with any applicable provisions of the laws of the State of New York)
have the status of authorized and unissued shares of Class B Preferred Stock of
the Corporation undesignated as to series and may be redesignated and reissued
as part of any series of Class B Preferred Stock of the Corporation.
11. BUSINESS DAY
If any payment, redemption or exchange shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment, redemption
or exchange shall be made on the immediately succeeding Business Day.
12. HEADINGS OF SUBDIVISIONS
The headings of various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
13. SEVERABILITY OF PROVISIONS
If any right, preference or limitations of the Series 1 Preferred Stock set
forth herein is invalid, unlawful or incapable of being enforced by reason of
any rule of law or public policy, all other rights, preferences and limitations
set forth herein that can be given effect without the invalid, unlawful or
unenforceable right, preference or limitation shall, nevertheless, remain in
full force and effect, and no right preference or limitation herein set forth
shall be deemed dependent upon any other such right, preference or limitation
unless so expressed herein.
14. LIMITATIONS
Except as may otherwise be required by law, the shares of Series 1
Preferred Stock shall not have any powers, preferences or relative,
participating, optional or other special rights other than those specifically
set forth herein or otherwise in the Certificate of Incorporation of the
Corporation.
DESIGNATION, PREFERENCES AND RIGHTS OF COMMON STOCK
Subject to the preferences, privileges and powers with respect to each
class of capital stock of the Corporation having any priority over the Common
Stock, and the restrictions and qualifications
thereof, the holders of the Common Stock shall have and possess all rights
pertaining to capital stock of the Corporation.
1. DIVIDENDS, ETC.
Subject to the dividend preferences of the holders of Non-Cumulative
Preferred Stock, Class A Preferred Stock, Class B Preferred Stock, Class C
Preferred Stock, Class D Preferred Stock and Class E Preferred Stock as herein
provided, the holders of Common Stock shall be entitled to receive dividends as
and when declared by the Board of Directors out of funds legally available
therefor in amounts per share as determined by the Board of Directors.
2. PAYMENT ON LIQUIDATION
(a) Subject to the preferences upon liquidation, dissolution or winding up
of the holders of Non-Cumulative Preferred Stock, Class A Preferred
Stock, Class B Preferred Stock, Class C Preferred Stock, Class D
Preferred Stock and Class E Preferred Stock as herein provided, in the
event of any liquidation, dissolution or winding up of this
Corporation whether voluntary or involuntary, holders of each share of
Common Stock shall be entitled to be paid out of assets of the
Corporation available for distribution to holders of the Corporation's
capital stock, the sum of $5.00 (plus declared but unpaid dividends)
per share of Common Stock. If the assets of the Corporation are
insufficient to permit payment in full to the holders of Common Stock
as provided in this subsection 2(a), then the entire assets of the
Corporation available for distribution shall be distributed ratably
among the holders of shares of Common Stock according to the
respective amounts which would be payable in respect of the shares
held by them upon such distribution if all amounts payable on or with
respect to said shares were paid in full. After payment shall have
been made in full to the holders of Common Stock, all remaining assets
available for distribution to shareholders shall be distributed as
provided in subsections 2(b) below.
(b) After payment to the holder of all classes of stock as herein
provided, the funds remaining shall be distributed as provided in the
Bylaws of the Corporation.
3. VOTING RIGHTS. All voting rights of the Corporation shall be vested
exclusively in the holders of the Common Stock. Each holder of Common Stock
shall have one vote regardless of the number of such shares held by such
shareholder. When two or more holders of Common Stock join in an
agricultural venture which markets crops through the Corporation, the Board
of Directors shall in its discretion determine whether such venture is a
single agricultural enterprise for which the holders of the Common Stock
who participate in the enterprise shall have one vote among them or whether
the venture is a multiple enterprise entitling the holders of Common Stock
who participate in the enterprise to more than one vote.
4. MANDATORY DISPOSITION. Any holder of Common Stock who ceases to be a
producer of agricultural products which he sells to the Corporation shall
be obligated to dispose of his Common Stock as provided in the Bylaws of
the Corporation.
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7. The following provisions are adopted for the regulations of the business
and conduct of the affairs of the Corporation.
(a) No transaction, right or liability entered into, enjoyed or incurred
by or in respect of the Corporation, shall be affected by the fact
that any director or directors of the Corporation are or may have been
personally interested in or concerning the same, and each director of
the Corporation is hereby relieved of any and all liability which
otherwise might prevent him from contracting with the Corporation for
the benefit of himself or any firm, association or corporation, in
which in any way he may be interested.
(b) The Board of Directors may, from time to time, sell any or all of the
unissued capital stock of the Corporation, whether the same be any of
the original authorized capital or of any increase thereof, without
first offering the same to the stockholders then existing, and all
such sales may be made upon such terms and conditions as the Board of
Directors may be deemed advisable, and may restrict a purchase, sale,
distribution, transfer, owning and holding of stock as fully and to
the extent as authorized by the New York Cooperative Corporations Law.
(c) The earnings and savings of the Corporation, after payment of
dividends as aforesaid and after deduction of reserve and other funds
in amounts required or permitted by law to be established, shall be
distributed, whether in the form of stock, cash, or evidence of
indebtedness, or notices of equity or participation or in services,
proportionately and equitably among the persons for whom it does
business, on the basis of the amount of sales, purchases or other
services, rendered to or by such persons, and within the limits of
law, in accordance of the Bylaws of the Corporation.
(d) No director of the Corporation shall be personally liable to the
Corporation or to any member or shareholder for damages for any breach
of duty in such capacity except where a judgment or other final
adjudication adverse to such director establishes: (i) that the
director's acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law; or (ii) that the director
personally gained in fact a financial profit or other advantage to
which the director was not legally entitled; or (iii) that the
director's acts violated Section 719 of the New York Business
Corporation Law. If the New York Business Corporation Law or
Cooperative Corporation Law is hereafter amended to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of the directors of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the New York Business Corporation Law and Cooperative
Corporation Law, as so amended.
8. The Secretary of State of the State of New York is designated as the agent
of the Corporation upon whom process against it may be served, and the post
office address to which the Secretary of State shall mail a copy of such
process served upon him is: c/o C T Corporation System, 111 Eighth Avenue,
New York, New York 10011.
9. The amendment and restatement of the certificate of incorporation was
authorized by vote of a majority of the Board of Directors at a meeting
duly convened and held December 14, 2001, and was ratified and authorized
by the members of the Corporation at a meeting duly convened and held on
February 28, 2002.
IN WITNESS WHEREOF, I have made and subscribed this certificate this 28th
day of March, 2002.
/s/ Bruce R. Fox
-------------------------------------------
Bruce R. Fox, President
/s/ Stephen R. Wright
-------------------------------------------
Stephen R. Wright, Secretary
State of New York )
)ss:
County of Monroe )
On this 28th day of March, 2002, before me personally appeared
Bruce R. Fox and Stephen R. Wright, to me personally known, who, being
by me duly sworn did depose and say that they are the President and
Secretary, respectively, of Pro-Fac Cooperative, Inc., the corporation
described in the foregoing certificate, and that they have been
authorized to execute and file such certificate by the votes required
by Section 12 of the New York Cooperative Corporations Law and in the
manner therein prescribed.
/s/Julia H. McMaster
---------------------
RESTATED CERTIFICATE OF INCORPORATION
OF
PRO-FAC COOPERATIVE, INC.
Pursuant to Section 5 of the Cooperative Corporations Law
HARRIS BEACH LLP
The Granite Building
130 East Main Street
Rochester, New York 14604