Exhibit 3.1
Restated Certificate of Incorporation
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
PSC INC.
Pursuant to Section 805 of the
Business Corporation Law of
the State of New York
We, being the President and Secretary of PSC Inc. (the "Corporation"), a
corporation organized and existing under the Business Corporation Law of the
State of New York (the NYBCL"), in accordance with the provisions of Section 805
thereof, do hereby certify and set forth:
FIRST: The name of the Corporation is PSC Inc. The name under which the
Corporation was formed was Photographic Sciences Corporation.
SECOND: The Certificate of Incorporation of the Corporation was filed by
the Department of State on December 8, 1969.
THIRD: The Certificate of Incorporation is hereby amended by the addition
of a provision to Paragraph 4 thereof stating the number, designation, relative
rights, preferences and limitations of the Series B Preferred Shares as fixed by
the Board of Directors of the Corporation and to set forth in full the text of
such provision. To effect the foregoing, Paragraph 4 of the Certificate of
Incorporation is amended in the following respects:
(a) Paragraph 4.(a) is hereby amended to read as follows:
"4. (a) Statement of Authorized Stock. The aggregate number of shares which
the Corporation shall have the authority to issue is Fifty Million (50,000,000)
shares of capital stock of the following classes in the following amounts:
(i) Forty Million (40,000,000) shares shall be Common Shares, having a
par value of $.01 per share ("Common Shares");
(ii) One Hundred Ten Thousand (110,000) shares shall be Series A
Convertible Preferred Shares, having a par value of $.01 per share ("Series A
Convertible Preferred Shares");
(iii) One Hundred Seventy-five Thousand (175,000) shares shall be
Series B Preferred Shares, having a par value of $.01 per share ("Series B
Preferred Shares"); and
(iv) Nine Million Seven Hundred Fifteen Thousand (9,715,000) shares
shall be Preferred Shares, having a par value of $.01 per share (the
"Undesignated Preferred Stock"), which shares of Undesignated Preferred Stock
may be issued from time to time in or one or more series, each of which shall
have such distinctive designation or title as shall be fixed by the Board of
Directors prior to the issuance of any shares thereof. Each such series of
Undesignated Preferred Stock shall have such voting powers, full or limited, or
no voting power, and have such preferences and relative participating, optional
or other special rights and such qualifications, limitations or restrictions
thereof, as shall be stated in such resolution or resolutions providing for the
issue of such class or series of Undesignated Preferred Stock as may be adopted
from time to time by the Board of Directors prior to the issuance of any shares
thereof pursuant to the authority hereby expressly vested in it, all in
accordance with the laws of the State of New York.
(b) A new paragraph 4.(c) is hereby added as follows:
(4. (c) Statement of Rights and Preferences of Series B Preferred Shares.
The respective powers, designations, preferences and relative participating,
optional and other special rights, and the qualifications, limitations and
restrictions of, the Series B Preferred Shares are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series B Preferred Shares" and the number of shares constituting
such series shall be One Hundred Seventy-five Thousand (175,000) shares. Such
number of shares may be increased or decreased by resolution of the Board of
Directors' provided, that no decrease shall reduce the number of shares of
Series B Preferred Shares to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series B
Preferred Shares.
Section 2. Dividends and Distributions. (A) Subject to the rights of
the holders of any shares of any series of Preferred Stock of the Corporation
(the "Preferred Stock") (or any similar stock) ranking prior and superior to the
Series B Preferred Shares with respect to dividends, each holder of one
one-thousandth of a share (a "Unit") of Series B Preferred Shares, in preference
to the holders of Common Shares, par value $.01 per share of the Corporation
(the "Common Shares") and of any other stock of the Corporation ranking junior
to the Series B Preferred Shares, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, dividends payable in cash in an amount per Unit (rounded to the nearest
cent) equal to the per share amount of cash dividends declared on the Common
Shares. In the event the Corporation shall at any time after December 30, 1997
(the "Rights Declaration Date"), (i) declare any dividend on outstanding Common
Shares, payable in Common Shares, (ii) subdivide outstanding Common Shares, or
(iii) combine outstanding Common Shares into a smaller number of shares, then in
each such case the amount to which the holder of a Unit of Series B Preferred
Shares was entitled immediately prior to such event pursuant to the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of Common Shares outstanding immediately after
such event and the denominator of which is the number of Common Shares, that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Units of Series B Preferred Shares as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Shares
(other than a dividend payable in Common Shares).
Section 3. Voting Rights. The holders of Units of Series B Preferred Shares
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth and
except as otherwise provided in the Certificate of Incorporation or required by
law, each Unit of Series B Preferred Shares shall entitle the holder thereof to
one vote on all matters upon which the holders of the Common Shares of the
Corporation are entitled to vote. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on outstanding Common
Shares, payable in Common Shares, (ii) subdivide outstanding Common Shares, or
(iii) combine outstanding Common Shares into a smaller number of shares, then in
each such case the number of votes per Unit to which holders of Units of Series
B Preferred Shares were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation or in any other Amendment creating a series of Preferred Stock or
any similar stock, and except as otherwise required by law, the holders of Units
of Series B Preferred Shares and the holders of Common Shares and any other
capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Units of Series B Preferred Shares shall have no special voting
rights and their consents shall not be required (except to the extent they are
entitled to vote with holders of Common Shares as set forth herein) for taking
any corporate action.
Section 4. Reacquired Shares. Any Units of Series B Preferred Shares
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
Units shall, upon their cancellation, become authorized but unissued Units of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
Section 5. Liquidation, Dissolution or Winding Up. (A) Upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares of
junior stock unless the holders of Units of Series B Preferred Shares shall have
received, subject to adjustment as hereinafter provided in paragraph (B), the
greater of either (a) $1.00 per Unit or (b) the amount equal to the aggregate
per share amount to be distributed to holders of Common Shares, or (ii) to the
holders of shares of parity stock, unless simultaneously therewith distributions
are made ratably on Units of Series B Preferred Shares and all other shares of
such parity stock in proportion to the total amounts to which the holders of
Units of Series B Preferred Shares are entitled under clause (i)(a) of this
sentence and to which the holders of shares of such parity stock are entitled,
in each case upon such liquidation, dissolution or winding up.
(B) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding Common Shares, payable
in Common Shares, (ii) subdivide outstanding Common Shares, or (iii) combine
outstanding Common Shares into a smaller number of shares, then in each such
case the aggregate amount to which holders of Units of Series B Preferred Shares
were entitled immediately prior to such event pursuant to clause (i)(b) of
paragraph (A) of this Section 5 shall be adjusted by multiplying such amount by
a fraction the numerator of which shall be the number of Common Shares that are
outstanding immediately after such event and the denominator of which shall be
the number of Common Shares that were outstanding immediately prior to such
event.
Section 6. Consolidation, Merger, Etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the Common Shares are converted into, exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case Units of
Series B Preferred Shares shall at the same time be similarly converted into,
exchanged for or changed into an amount per Unit (subject to the provisions for
adjustment hereinafter set forth) equal to the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each Common Share is converted, exchanged or
converted. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding Common Shares payable
in Common Shares, (ii) subdivide outstanding Common Shares, or (iii) combine
outstanding Common Shares into a small number of shares, then in each such case
the amount set forth in the immediately preceding sentence with respect to the
exchange or conversion of Units of Series B Preferred Shares shall be adjusted
by multiplying such amount by a fraction the numerator of which shall be the
number of common Shares that are outstanding immediately after such event and
the denominator of which shall be the number of Common Shares that were
outstanding immediately prior to such event.
Section 7. No Redemption. The Units of Series B Preferred Shares shall
not be redeemable from any holder.
Section 8. Rank. The Units of Series B Preferred Shares shall rank,
with respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, junior to all other
series of Preferred Stock unless the terms of any such series shall provide
otherwise and senior to the Common Shares.
Section 9. Amendment. If any proposed amendment to the Certificate of
Incorporation would alter, change, or repeal any of the preferences, powers or
special rights given to the Series B Preferred Shares so as to affect the Series
B Preferred Shares adversely, then the holders of the Series B Preferred Shares
shall be entitled to vote separately as a class upon such amendment, and the
affirmative vote of a majority of the outstanding shares of the Series B
Preferred Shares, voting separately as a class, shall be necessary for the
adoption thereof, in addition to such other vote as may be required by the
Business Corporation Law of the State of New York."
Section 10. Fractional Shares. The Series B Preferred Shares may be
issued in Units, which Units shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series B Preferred Shares.
Section 11. Certain Definitions. As used herein with respect to the
Series B Preferred Shares, the following terms shall have the following
meanings:
(A) The term "Common Shares" shall mean the class of stock designated
as the common shares, par value $.01 per share, of the Corporation at the date
hereof or any other class of stock resulting from successive changes or
reclassification of such common stock.
(B) The term "Junior Stock", as used in Section 5 hereof, shall mean
the Common Shares and any other class or series of capital stock of the
Corporation over which the Series B Preferred Shares has preference or priority
in the distribution of assets on any liquidation, dissolution or winding up of
the Corporation.
(C) The term "Parity Stock", as used in Section 5 hereof, shall mean
any class of series of capital stock ranking pari passu with the Series B
Preferred Shares in the distribution of assets or any liquidation, dissolution
or winding up of the Corporation.
FOURTH: The Amendment was authorized pursuant to the authority
conferred upon the Board of Directors of the Corporation by the Restated
Certificate of Incorporation of the Corporation, as the same has been amended,
pursuant to a resolution adopted by the shareholders of the Corporation at a
meeting of the shareholders.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 30th day
of December, 1997.
Name: Robert C. Strandberg
Title: President and CEO
Name: Martin S. Weingarten
Title: Secretary