Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MENDOCINO BREWING COMPANY, INC.
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1. The undersigned, Yashpal Singh and N. Mahadevan, hereby certify that
they are the duly elected and acting President and Secretary, respectively, of
Mendocino Brewing Company, Inc., a California corporation (the "Company"), and
further certify the following:
2. The Articles of Incorporation of the Company are amended and restated
to read in full as follows:
ARTICLE 1
NAME
The name of the corporation is: Mendocino Brewing Company, Inc.
ARTICLE 2
PURPOSE
The purpose of the corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California, other than the banking business, the trust company business, or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE 3
AUTHORIZED SHARES
Section 3.1 Classes of Stock. The corporation is authorized to issue two
classes of shares designated "Common Stock" and "Preferred Stock," respectively.
The corporation shall have the authority to issue a total of 30,000,000 shares
of Common Stock and 10,000,000 shares of Preferred Stock. The Common Stock is
sometimes referred to as "Common Shares" and the Preferred Stock is sometimes
referred to as "Preferred Shares." Holders of Common Shares are sometimes
referred to as "Common Shareholders" and holders of Preferred Shares are
sometimes referred to as "Preferred Shareholders."
Section 3.2 Authorized Series of Preferred Stock. Of the total authorized
shares of Preferred Stock, 275,000 shares are designated Series A Preferred
Stock ("Series A Shares"). Holders of the Series A Shares are sometimes referred
to herein as "Series A Shareholders."
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Section 3.3 Undesignated Series of Preferred Stock. Any remaining
undesignated shares of Preferred Stock may be divided into such number of
additional Series As the Board of Directors may determine. The Board of
Directors is authorized to determine and alter the rights, preferences,
privileges, and restrictions granted to and imposed upon any wholly unissued
series of Preferred Stock, to fix the number of shares of any series of
Preferred Stock, and to set the designation of any series of Preferred Stock.
The Board of Directors, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting any series, may increase or decrease the number of shares
of any Series After shares of that series have been issued. The Board of
Directors may not, however, reduce any series below the number of shares of such
series then outstanding.
ARTICLE 4
DIVIDENDS
Section 4.1 Dividends on Series A Preferred Stock. The Series A
Shareholders shall receive dividends equal in the aggregate to $1.00 per Series
A Share before any dividend is paid on the Common Shares or any other series of
Preferred Shares (the "Preferred Dividend"). When the entire Preferred Dividend
has been paid, the Series A Shares shall automatically be cancelled and shall
cease to be outstanding for all purposes, and the Series A Shares shall resume
the status of authorized but unissued and undesignated Preferred Stock.
Section 4.2 Dividends on Other Series of Preferred Stock. The Board of
Directors shall have the authority, consistent with the provisions of Section
3.3, above, to fix the dividends and dividend preferences of any series of
Preferred Stock other than the Series A Preferred Stock; provided that so long
as any share of Series A Preferred Stock remains outstanding no series of
Preferred Stock may be granted dividend rights which are senior to those of the
Series A Preferred Stock.
Section 4.3 Dividends on Common Shares. The corporation may pay dividends
with respect to the Common Shares if and only if the corporation has paid the
entire Preferred Dividend on the Series A Shares and the Series A Shares have
been cancelled. The corporation may at any time declare and pay a dividend with
respect to the Common Shares payable solely in Common Shares.
Section 4.4 Conditions to All Dividends. Dividends are payable only at the
times and to the extent declared by the Board of Directors. Dividends may be
payable quarterly or otherwise as the Board of Directors may determine from time
to time. The corporation shall distribute any declared dividend to each
shareholder entitled to receive the dividend simultaneously. Dividends are
payable only out of assets legally available for that purpose. No right to a
dividend shall accrue unless the dividend is declared by the Board of Directors.
The Board of Directors may rescind the declaration of a dividend to the extent
that the dividend has not been paid if each shareholder is treated ratably in
accordance with the shareholder's preferences with respect to the dividend.
Section 4.5 Service Shares. "Service Shares" are Common Shares held by
an employee, director, or other person who is providing services to the
corporation issued pursuant to an agreement that gives the corporation the right
to repurchase the shares upon the occurrence
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of certain events (such as termination of employment). Section 503 of the
California Corporations Code does not apply to any repurchase of Service Shares
by the corporation. Section 4.6 Restriction on Repurchase of Junior Shares. The
corporation may repurchase shares other than the Series A Shares only if (a) the
Preferred Dividend on the Series A Shares has been paid in full and the Series A
Shares have been cancelled; or (b) the shares to be repurchased are Service
Shares.
ARTICLE 5
LIQUIDATION
Section 5.1 Order of Distribution. Following dissolution of the
corporation, the assets of the corporation shall be distributed first to the
Series A Shareholders in an amount equal to their aggregate Liquidation
Preference (as defined below), then, in the order of seniority, to any holders
of any Series of Preferred Shares which may be junior with respect to
liquidation rights to the Series A Preferred Stock, and then to the Common
Shareholders.
Section 5.2 Liquidation Preferences. The Liquidation Preference of the
Series A Shareholders is an amount per share equal to the unpaid Preferred
Dividend of a Series A Share. Upon dissolution of the corporation, any declared
but unpaid Preferred Dividends on the Series A Shares shall automatically be
cancelled. When the entire Liquidation Preference of the Series A Shareholders
has been paid, the Series A Shares shall automatically be cancelled and shall
cease to be authorized or outstanding for all purposes.
Section 5.3 Insufficient Assets. If assets of the corporation are not
sufficient to distribute the entire Liquidation Preference to the Series A
Shareholders, the entire assets of the corporation shall be distributed among
the Series A Shareholders in accordance with their Series A Shares.
Section 5.4 Service Shares. Section 502 of the California Corporations
Code does not apply to any repurchase of Service Shares by the corporation.
Section 5.5 Restriction on Repurchase of Junior Shares. The corporation
may repurchase shares other than the Series A Shares only if (a) the corporation
has sufficient net assets to enable it to pay the Series A Shareholders the full
amount of their Liquidation Preference at the time of the repurchase; or (b) the
shares to be repurchased are Service Shares.
ARTICLE 6
PREFERRED STOCK VOTING RIGHTS
Section 6.1 Voting Rights of the Series A Preferred Stock. The holders of
Series A Preferred Stock shall have no voting rights, except to the extent
required by law.
Section 6.2 Voting Rights of Other Classes of Preferred Stock. The Board
of Directors shall have the authority, consistent with the provisions of Section
3.3, above, to fix the voting rights of any series of Preferred Stock other than
the Series A Preferred Stock.
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ARTICLE 7
LIABILITY OF DIRECTORS
Section 7.1 Limitation of Directors' Liability. The liability of the
directors of the corporation for monetary damages shall be eliminated to the
fullest extent permissible under California law.
Section 7.2 Indemnification of Corporate Agents. The corporation is
authorized to provide indemnification of agents (as defined in Section 317 of
the Corporations Code) through bylaw provisions, agreements with agents, vote of
shareholders or disinterested directors or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the California
Corporations Code, subject only to the applicable limits set forth in Section
204 of the California Corporations Code with respect to actions for breach of
duty to the corporation and its shareholders.
Section 7.3 Repeal or Modification. No repeal or modification of Sections
7.1 or 7.2 shall adversely affect any right of indemnification or limitation of
liability of an agent of the corporation relating to acts or omissions that
occur before such repeal or modification.
3. The foregoing Amended and Restated Articles of Incorporation have been
duly approved by the Board of Directors.
4. The foregoing Amended and Restated Articles of Incorporation have been
duly approved by the required vote of shareholders in accordance with Section
902 of the California Corporations Code. The total number of outstanding shares
of the Company is 5,808,098, consisting of 5,580,498 shares of Common Stock and
227,600 shares of Preferred Stock, which are entitled to vote with respect to
the amendment and restatement. The number of shares voting in favor of the
foregoing amendment and restatement equaled or exceeded the vote required. The
percentage vote required was more than 50% of (a) the Common Stock and the
Preferred Stock, voting together, (b) the Preferred Stock voting separately, and
(c) the Common Stock voting separately.
I further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of my own knowledge.
IN WITNESS WHEREOF, the undersigned has executed this certificate in
Ukiah, California, this June 28, 2001.
/s/ Yashpal Singh
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Yashpal Singh, President
/s/ N. Mahadevan
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N. Mahadevan, Secretary
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