EXHIBIT 3.1
AMENDED & RESTATED CERTIFICATE OF INCORPORATION
OF
ONEIDA LTD.
Under Section 807 of the
Business Corporation Law
I. The name of the Corporation is ONEIDA LTD., the name under which it
was formed was Oneida Community, Limited.
II. The Certificate of Incorporation was filed in the office of the
Secretary of State of the State of New York on November 20, 1880.
III. The text of the Certificate of Incorporation as amended
theretofore is hereby restated without further amendment or change to read as
herein set forth in full:
FIRST:
The name of said Corporation is to be ONEIDA LTD.
SECOND:
The purposes for which the Corporation is to be formed are:
To purchase, manufacture, produce, construct, assemble, receive, lease
or otherwise acquire, and to manage, hold, own, use, operate, install, maintain,
service, repair, process, alter, improve, import, export, convey, sell, lease,
assign, transfer, mortgage, pledge, or trade and deal in and with, raw
materials, natural or manufactured articles or products, machinery, equipment,
devices, systems, parts, supplies, apparatus and personal property of every
kind, nature and description, tangible or intangible, used or capable of being
used for any purpose whatsoever, including, but not limited to, metals,
metalware, metal products and products which metal may be used, and to engage
and participate in any mercantile, manufacturing or trading business of any kind
or character.
To carry on the business of farming and horticulture and, without
limiting the generality of the foregoing, to purchase, product, grow, cultivate,
harvest, pick, receive or otherwise acquire, and to preserve, process, assort,
box, pack, store, alter, improve, import, export, convey, mortgage, pledge,
sell, trade or deal in and with each and every kind of farm, dairy, fruit,
vegetable, grain, livestock, poultry, seed and garden product, whether at
wholesale or retail, and to carry on all other businesses incident thereto.
To purchase, construct, receive, lease or otherwise acquire, and to
manage, hold, own, use, operate, maintain, service, repair, alter, improve,
convey, sell, lease, assign, transfer, mortgage, or otherwise trade and deal in
and with, lands, buildings and real property of every kind, nature and
description, or any interest therein, either legal or equitable.
To adopt, apply for, obtain, register, purchase, produce, assemble,
receive, lease or otherwise acquire, and to manage, hold, own, use, maintain,
alter, improve, protect, exercise, develop, manufacture under, operate and
introduce, and to sell, lease, assign, transfer, pledge, grant licenses or other
rights in respect of, or otherwise dispose of, turn to account, or in any manner
deal in and with and contract with reference to, any trademarks, trade names,
patents, patent rights, concessions, franchises, designs, copyrights and
distinctive marks and rights analogous thereto, and inventions, devices,
improvements, processes, recipes, formulae and the like, including, but without
limitation, such thereof as may be covered by, used in connection with, or
secured under, letters patent or otherwise, whether of the United States of
America or of any other government or country; and any licenses in respect
thereof and any or all rights connected therewith or appertaining thereto.
To acquire by purchase, exchange or otherwise, all, or any part of, or
any interest in, the properties, assets, business, good will and rights of any
corporation, association, partnership, firm, syndicate or individual to the
extent permitted by the Business Corporation Law of New York, and to pay for the
same in cash, property, or the shares, bonds, debentures, warrants, rights,
scrip, notes, evidences of indebtedness, or other securities or obligations of
any kind of the Corporation or any other corporation, association, partnership,
firm, syndicate or individual; to hold, conduct, operate, reorganize, liquidate,
dissolve, mortgage, pledge, sell, exchange, or otherwise dispose of, the whole
or any part of the properties, assets, business, good will and rights so
acquired; and, in connection therewith, to assume or guarantee performance of
any liabilities, obligations or contracts or any corporation, association,
partnership, firm, syndicate or individual.
To acquire or become interested in, whether by subscription, purchase,
underwriting, loan, participation in syndicates or otherwise, and to own, hold,
sell, assign, transfer, or otherwise dispose of, and to trade and deal in or
with, shares, bonds, debentures, warrants, rights, scrip, notes, evidences of
indebtedness, or other securities or obligations of any kind by whomsoever
issued; to possess and exercise in respect thereof all the rights, powers and
privileges of ownership or interest therein, including, but without limitation,
the right to vote thereon for any and all purposes, to consent, or otherwise act
with respect thereto; and to issue in payment for exchange therefor the
Corporation's shares, bonds, debentures, warrants, rights, scrip, notes,
evidences of indebtedness, or other securities or obligations of any kind.
To borrow or raise moneys for any of the purposes of the Corporation
and, from time to time, without limit as to amount, to draw, make accept,
endorse, execute, issue, and deliver promissory notes, drafts, bills of
exchange, bonds, debentures, and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by deed or trust, mortgage or pledge, of or upon the whole
or any part of the property of the Corporation, real or personal, whether at the
time owned or thereafter acquired, and to sell, pledge or otherwise dispose of
such promissory notes, drafts, bills of exchange, bonds, debentures, or other
negotiable or non-negotiable instruments and evidences of indebtedness of the
Corporation for its corporate purposes.
To lend any of its funds from time to time, to such extent, on such
terms and on such security, if any, as the Board of Directors of the Corporation
may determine.
To purchase or otherwise acquire, own, hold, sell, assign, transfer,
or otherwise dispose of, the shares of its own capital stock, redeem the
redeemable shares, if any, of its capital stock, out of surplus except when
currently insolvent or when it would thereby be made insolvent.
To carry out all or any part of the foregoing purposes as principal,
factor, agent, broker, contractor or otherwise, either along or in conjunction
with any persons, firms, associations, corporations or others in any part of the
world.
For the accomplishment of the aforesaid purposes, and in furtherance
thereof, the Corporation shall have and may exercise each and every power
conferred by the Business Corporation Law of the State of New York, as now in
force or hereafter amended, upon corporations formed thereunder, subject to any
limitations contained in the said law or in any other statute of the State of
New York.
THIRD:
The amount of the Capital Stock of said Corporation is to be
Twenty-Seven Million, Three Hundred Ninety-One Thousand, Five Hundred Dollars
($27,391,500).
FOURTH:
The said authorized Capital Stock of the Corporation shall consist of
forty-eight million (48,000,000) shares designated as Common Stock, with a par
value of $1.00 per share; ninety-five thousand six hundred sixty (95,660) shares
designated as 6% Cumulative Preferred Stock, with a par value of $25 per share;
and one million shares designated as Series Preferred Stock, with a par value of
$1.00 per share. No holder of Common Stock shall
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have, as a matter of right as such holder, any preemptive right to purchase any
shares or other securities of the Corporation.
A. The designations, preferences, privileges and voting powers of the
shares of 6% Cumulative Preferred Stock and the restrictions or
qualifications thereof, are as follows:
I. The 6% Cumulative Preferred Stock shall be entitled to
receive, when and as declared from surplus or from net profits,
dividends at the rate of six per cent per annum, and no more, which
dividends shall be cumulative from the quarterly dividend date next
preceding the date of issue (or from the date of issue, if that be a
dividend date), and shall be payable quarterly on the fifteenth day of
each of the months of March, June, September and December, in each
year, before any dividend shall be paid on any other class of stock;
provided, that whenever at any time full cumulative dividends at the
said rate for all past dividend periods and for the current dividend
period shall have been paid or declared and set apart for payment on
the then outstanding 6% Cumulative Preferred Stock, the Board of
Directors may declare dividends on any other class or classes of
stock, subject to the respective terms and provisions (if any)
applying thereto, and the 6% Cumulative Preferred Stock shall not be
entitled to share therein.
II. Upon any distribution of capital assets, the 6% Cumulative
Preferred Stock shall be entitled to receive an amount equal to the
par value thereof, plus an amount equivalent to all unpaid accumulated
dividends thereon, before any distribution is made to any other class
of stock; provided, that, after distribution shall have been made in
full to the 6% Cumulative Preferred Stock as herein provided; the
other class or classes of stock shall, subject ot the respective terms
and provisions (if any) applying thereto, be entitled to receive any
and all assets remaining to be distributed, and the 6% Cumulative
Preferred Stock shall not be entitled to share therein.
III. The Company shall have the right to redeem the 6% Cumulative
Preferred Stock on June 15, 1949, or any divident payment date
thereafter, either in whole or in such portions as from time to time
the Board of Directors may determine, upon the payment of the sum of
$30 a share and an amount equivalent to all unpaid accumulated
dividends thereon to the date fixed for redemption. If less than the
whole amount of 6% Cumulative Preferred Stock outstanding shall be
redeemed at any time, the shares to be so redeemed shall be selected
by lot in such manner as the Board of Directors may determine. At
least thirty days notice in advance of any such redemption shall be
mailed to each holder of the shares to be so redeemed at this address
registered with the Company, and, if less than all the outstanding
shares of 6% Cumulative Preferred Stock owned by such stockholder is
then to be redeemed, such notice shall specify the number of shares
which are to be remeeded. On and after the date fixed for such
redemption (unless default made by the Company in the payment of the
redemption price of the shares then to be redeemed), the said shares
shall cease to be entitled to further dividends, and the respective
owners thereof shall have no other right or interest therein, or in
the Company by reason of the ownership of such shares, except to
receive payment therefore at the said redemption price upon
presentation and surrender of the respective certificates representing
the same. In order to facilitate the redemption of the 6% Cumulative
Preferred Stock, the Board of Directors shall be authorized to cause
the transfer books of the Company to be closed as to any share or
shares designated for redemption as herein provided, and to make and
enforce any and all such reasonable regulations, not inconsistent
herewith, governing the manner of re-
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demption, as the board of Directors in its discretion may deem
advisable.
IV. Except as herein or by law otherwise expressly provided, the
holders of the 6% Cumulative Preferred Stock shall not be entitled to
vote in any proceeding for mortgaging the property and franchises of
the Company or for authorizing and guaranty by the Company, or for the
sale of the franchises and property of the company, or for
consolidation of the Company with any one or more other corporations,
or for the voluntary dissolution of the Company, or for the change of
name of the Company, or for any other purpose.
B. The Series Preferred Stock may be issued in series, and each series
shall be so designated as to distinguish the shares thereof from the shares of
all other series. Authority is hereby expressly granted to the Board of
Directors at any time and from time to time to issue series preferred Stock in
one or more series and for such consideration, not less than the part value
thereof, as may be fixed from time to time by the Board of Directors. The Board
of Directors is expressly empowered to fix, subject to the provisions herein set
forth, before the issuance of any shares of a particular series, the number of
shares to be included in such series, the dividend rates per annum, the
redemption price or prices; if any, and the terms and conditions of redemption,
any sinking-fund provisions for the redemption or purchase of the shares of the
series, the terms and conditions on which share are convertible, if they are
convertible, and any other rights, preferences and limitations pertaining to
such series. The relative rights, preferences and limitations of Series
Preferred Stock shall be subordinate to the rights and preferences of 6%
Cumulative Preferred Stock of the Company.
C. Series A Preferred Stock. The designation and amount, relative
rights, preferences and limitations of the shares of Series A Preferred Stock,
of a par value of $1.00 each, as fixed by the Board of Directors, are as
follows:
(1) Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Stock" and the number of shares constituting
such series shall be 150,000. 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 A Preferred Stock to a number less
than that of the shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Company.
(2) Dividends and Distributions. (a) Subject to the prior and superior
rights of the holders of any shares of any other series of preferred stock or
any other preferred stock of the Corporation ranking prior and superior to the
Series A Preferred Stock with respect to dividends, each holder of one
one-thousandth (1/1000) of a share (a "Unit") of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for that purpose, (j) quarterly dividends payable in
cash on the 1st day of March, June, September and December in each year (each
such date being a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of such Unit of Series
A Preferred Stock, in an amount per Unit (rounded to the nearest cent) equal to
the greater of (A) $0.12 or (B) subject to the provision for adjustment
hereinafter set forth, the aggregate per share amount of all cash dividends
declared on shares of the Common Stock since the Immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of a Unit of Series A Preferred Stock, and (ii)
subject to the provision for adjustment hereinafter set forth, quarterly
distributions (payable in kind) on each Quarterly Dividend Payment Date in an
amount per Unit equal to the aggregate per share amount of all non-cash
dividends of other distributions (other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock, by
reclassification or otherwise) declared on shares of Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or with respect to the
first Quarterly Dividend Payment Date, since the first issuance of a Unit of
Series A Preferred Stock. In the event that the Corporation shall at any time
after December 13, 1989 (the "Rights Declaration Date") (i) declare any dividend
on outstanding shares of Common Stock payable in shares of Common Stock, (ii)
combine outstanding shares of Common Stock or (iii) combine outstanding shares
of Common Stock into a smaller number of shares, then in each such case the
amount to which the holder of a Unit of Series A Preferred Stock 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 shall
be the
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number of shares of Common stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on
Units of Series A Preferred Stock as provided in paragraph (a) above immediately
after it declares a dividend or distribution on the shares of Common Stock
(other than a dividend payable in shares of Common Stock); provided, however,
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $0.12 per
Unit on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and shall be cumulative on
each outstanding Unit of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issuance of each Unit of Series A
Preferred Stock, unless the date of issuance of such Unit is prior to the record
date for the first Quarterly Dividend Payment Date, in which case, dividends on
such Unit shall begin to accrue from the date of issuance of such Unit, or
unless the date of issuance is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of Units of Series A
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on Units of
Series A Preferred Stock in an amount less than the aggregate amount of all such
dividends at the time accrued and payable on such Units shall be allocated pro
rata on a unit-by-unit basis among all Units of Series A Preferred Stock at the
time outstanding. The Board of Directors may fix a record date for the
determination of holders of Units of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 30 days prior to the date fixed for payment thereof.
3. Voting Rights. the holders of Units of Series A Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each Unit of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares of Common Stock,
(ii) subdivide outstanding shares of Common Stock or (iii) combine the
outstanding shares of common Stock into a smaller number of shares,
then in each such case the number of votes per Unit to which holders
of Units of Series A Preferred Stock were entitled immediately prior
to such event shall be adjusted by multiplying such number by a
fraction the numerator of which shall be the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders of
Units of Series A Preferred Stock and the holders of Common Stock
shall vote together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(c) (i) If at any time dividends on any Units of Series A
Preferred Stock shall be in arrears in an amount equal to six
quarterly dividends thereon, then during the period (a "default
period") from the occurrence of such event until such time as all
accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all Units of
Series A Preferred Stock then outstanding shall have been declared and
paid or set apart for payment, all holders of Units of Series A
Preferred Stock, voting separately as a class, shall have the right to
elect two Directors.
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(ii) during any default period, such voting rights of the holders
of Units of Series A Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this section
3(c) or at any annual meeting of shareholders, and thereafter at
annual meetings of shareholders, provided that neither such voting
rights nor any right of the holders of Units of Series A Preferred
Stock to increase, in certain cases, the authorized number of
Directors may be exercised at any meeting unless one-third of the
outstanding Units of Preferred Stock shall be present at such meeting
in person or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the holders of Units of
Series A Preferred Stock of such rights. At any meeting at which the
holders of Units of Series A Preferred Stock shall exercise such
voting right initially during an existing default period, they shall
have the right, voting separately as a class, to elect Directors to
fill up to two vacancies in the Board of Directors, if any such
vacancies may then exist, or, if such right is exercised at an annual
meeting, to elect two Directors. If the number which may be so elected
at any special meeting does not amount to the required number, the
holders of the Series A Preferred Stock shall have the right to make
such increase in the number of Directors as shall be necessary to
permit the electionby them of the required number. After the holders
of Units of Series A Preferred Stock shall have exercised their right
to elect Directors during any default period, the number of Directors
shall not be increased or decreased except as approved by a vote of
the holders of Units of Series A Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to the
Series A Preferred Stock.
(iii) Unless the holders of Series A Preferred Stock shall,
during an existing default period, have previously exercised their
right to elect Directors, the Board of Directors may order, or any
shareholder of shareholders owning in the aggregate not less then 25%
of the total number of Units of Series A Preferred Stock outstanding
may request, the calling of a special meeting of the holders of Units
of Series A Preferred Stock, which meeting shall thereupon be called
by the Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Units of Series A Preferred Stock
are entitled to vote pursuant to this subparagraph (c)(iii) shall be
given to each holder of record of Units of Series A Preferred Stock by
mailing a copy of such notice to him at his last address as the same
appears on the books ob the Corporation. Such meeting shall be called
for a time not earlier than 10 days and not later than 50 days after
such order to request or in default of the calling of such meeting
within 50 days after such order or request, such meeting may be called
on similar notice by any shareholder or shareholders owning in the
aggregate not less than 25% of the total number of outstanding Units
of Series A Preferred Stock. Notwithstanding the provisions of this
paragraph (c)(iii), no such special meeting shall be called during the
60 days immediately preceding the date fixed for the next annual
meeting of the shareholders.
(iv) During any default period, the holders of shares of Common
Stock and Units of Series A Preferred Stock, and other classes or
series of stock of the Corporation, if applicable, shall continue to
be entitled to elect all the Directors until the holders of Units of
Series A Preferred Stock shall have exercised their right to elect two
Directors voting as a separate class, after the exercise of which
right (x) the Directors so elected by the holders of Units of Series A
Preferred Stock shall continue in office until their successors shall
have been elected by such holders or until the expiration of the
default period, and (y) any vacancy in the Board of Directors may
(except as provided in subparagraph (c)(ii) of this Section (3) be
filled by vote of a majority of the remaining Directors theretofore
elected by the holders of the class of capital stock which elected the
Director
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whose office shall have become vacant. References in this paragraph
(c) to Directors elected by the holders of a particular class of
capital stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Units of Series A Preferred Stock as a
separate class to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Units of Series A Preferred Stock
as a separate class shall terminate, and (z) the number of Directors
shall be such number as may be provided for in the Certificate or by-
laws irrespective of any increase made pursuant to the provisions of
subparagraph (c)(ii) of this Section 3 (such number being subject,
however, to change thereafter in any manner provided by law or in the
Certificate or by-laws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining Directors.
(vi) The provisions of this subparagraph (c) shall govern the
election of Directors by holders of Units of Series A Preferred Stock
during any default period notwithstanding any provisions of the
Certificate or by-laws to the contrary.
(d) Except as set forth herein, holders of Units of Series A
Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote
with holders of shares of Common Stock as set forth herein) for taking
any corporate action.
(4) Certain Restrictions. (a) Whenever quarterly dividends or other
dividends or distributions payable on Units of Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on outstanding
Units of Series A Preferred Stock shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any
junior shares;
(ii) declare or pay dividends on or make any other distributions
on any parity shares, except dividends paid ratably on Units of Series
A Preferred Stock and shares of all such parity shares on which
dividends are payable or in arrears in proportion to the total amounts
to which the holders of such Units and all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any parity shares, provided, however, that the Corporation
may at any time redeem, purchase or otherwise acqurie shares of any
such parity shares in exchange for any junior shares.
(iv) purchase or otherwise acquire for consideration any Units of
Series A Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of
Directors) to all holders of such Units.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of the Corporation unless the Corporation could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
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(5) Reacquired Shares: Any Units of Series B Preferred Stock 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 preferred stock
and may be reissued as part of a new series of preferred stock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
(6) Liquidation Dissolution or Winding Up: (a) Upon any voluntary or
in-voluntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of Junior shares unless
the holders of Units of Series A Preferred Stock shall have received, subject to
adjustment as hereinafter provided in paragraph (b), the greater of either (x)
$0.01 per Unit plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the date of such
payment, or (y) the amount equal to the aggregate per share amount to be
distributed to holders of shares of Stock, or (ii) to the holders of shares of
parity shares, unless simultaneously therewith distributions are made ratably on
Units of Series A Preferred Stock and all other shares of such parity shares in
proportion to the total amounts to which the holders of Units of Series A
Preferred Stock are entitled under clause (i)(x) of this sentence and to which
the holders of such parity shares 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 (1) declare any dividend on outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of
Common Stock, or (iii) combine outstanding shares of Common Stock into a smaller
number of shares, then in each such case the aggregate amount to which holders
of Units of Series A Preferred Stock were entitled immediately prior to such
event pursuant to Clause (i)(y) of paragraph (a) of this Section 6 shall be
adjusted by multiplying such amount by a fraction the numerator of which shall
be the number of shares of Common Stock that are outstanding immediately after
such event and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
(7) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
share of Common Stock are exchanged for or converted into other shares or
securities, cash and/or any other property, then in any such case Units of
Series A Preferred Stock shall at the same time be similarly exchanged for or
converted into an amount per Unit (subject to the provision for adjustment
hereinafter set forth) equal to the aggregate amount of shares, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is converted or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i) declare any
dividend on outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine
outstanding Common Stock into a smaller 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 shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
(8) Redemption. The Units of Series A Preferred Stock shall not be
redeemable.
(9) Ranking. The Units of Series A Preferred Stock shall rank junior
to all other series of preferred stock and to any other class of preferred stock
that hereafter may be issued by the Corporation as to the payment of dividends
and the distribution of assets, unless the terms of any such series or class
shall provide otherwise.
(10) Amendment. The Certificate, including without limitation, this
resolution, shall not hereafter be amended, either directly or indirectly, or
through merger or consolidation with another corporation, in any manner that
would alter or change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of a majority or more of the outstanding units of Series A Preferred
Stock, voting separately as a class.
(11) Fractional Shares. The Series A Preferred Stock may be issued, in
Units or other fractions of a share, which Units or fractions 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 A Preferred Stock.
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Section 12. Certain Definitions. As used herein with respect to the
Series A Preferred Stock, the following terms shall have the following meanings:
(a) The term "Common Stock" shall mean the class of shares
designated as the Common Stock, par value $6.25 per share, of the
Corporation at the date hereof or any other class of shares resulting
from successive changes or reclassification of the common stock.
(b) The term "junior shares" (i) as used in Section 4, shall mean
the Common Stock and any other class or series of capital stock of the
Corporation hereafter authorized or issued over which the Series A
Preferred Stock has preference or priority as to the payment of
dividends and (ii) as used in Section 6, shall mean the Common Stock
and any other class or series of capital stock of the Corporation over
which the Series A Preferred Stock has preference or priority in the
distribution of assets on any liquidation, dissolution or winding up
of the Corporation.
(c) The term "parity shares" (i) as used in section 4, shall mean
any class or series of capital stock of the Corporation hereafter
authorized or issued ranking pari passu with the Series A Preferred
Stock as to dividends and (ii) as used in Section 6, shall mean any
class or series of capital stock ranking pari passu with the Series A
Preferred Stock in the distribution of assets or any liquidation,
dissolution or winding up.
FIFTH:
The office of said Corporation in the State of New York shall be
located in the City of Oneida and the County of Madison.
SIXTH:
The duration of said Corporation is to be perpetual.
SEVENTH:
The Secretary of State is designated as the agent of the corporation
for service of process and he shall mail a copy thereof to Oneida, New York.
EIGHTH:
SECTION 1. Higher Vote for Certain Business Combination. In addition
to any affirmative vote required by law or by this Certificate of Incorporation,
and except as otherwise expressly provided in Section 3 of this Article
EIGHTH:
(i) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) any Interested Stockholder (as hereinafter
defined) or (b) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder or any Affiliate of any Interested Stockholder of any
assets of the Corporation or any Subsidiary having an aggregate Fair Market
Value (as hereinafter defined) of $10,000,000 or more; or
9
(iii) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value of $10,000,000
or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock
split) or recapitalization of the Corporation, or any merger or consolidation of
the Corporation with any of its Subsidiaries or any other transaction (whether
or not with or into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the proportionate shares of
the outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder; shall
require the affirmative vote of the holders of at least 80% of the voting power
of the then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (the "Voting Stock"), voting
together, as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
SECTION 2. Definition of "Business Combination." The term "Business
Combination" as used in this Article EIGHTH shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of Section 1 of this
Article EIGHTH.
SECTION 3. When Higher Vote is Not Required. The provisions of Section
1 of this Article EIGHTH shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Certificate of
Incorporation, if all of the conditions specified in either of the following
paragraphs A and B are met:
A. Approval by Continuing Directors. The Business combination shall
have been approved by a majority of the Continuing Directors (as hereinafter
defined).
B. Form of Consideration, Price and Procedure Requirements. All of the
following conditions shall have been met:
(i) the aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
Common Stock in such Business Combination shall be at least equal to
the highest of the following:
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares of Common
Stock acquired by it (1) within the two-year period immediately
prior to the first public announcement of the proposal of the
Business Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested Stockholder,
whichever is higher;
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (such latter date is
referred to in this Article EIGHTH as the "Determination Date"),
whichever is higher; and
(c) (if applicable) the price per share equal to the Fair
Market Value per share of Common Stock determined pursuant to
paragraph (B)(i)(b) above, multiplied by the ratio of (1) the
10
highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of Common Stock acquired by
it within the two-year period immediately prior to the
Announcement Date to (2) the Fair Market Value per share of
Common Stock on the first day in such two-year period upon which
the Interested Stockholder acquired any shares of Common Stock.
(ii) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any other class of outstanding Voting Stock shall be at
least equal to the highest of the following (it being intended that
the requirements of this paragraph B(ii) shall be required to be met
with respect to every class of outstanding Voting Stock, whether or
not the Interested Stockholder has previously acquired any shares of a
particular class of voting Stock):
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares of such
class of Voting Stock acquired by it (i) within the two-year
period immediately prior to the Announcement Date or (2) in the
transaction in which it became an Interested Stockholder,
whichever is higher;
(b) (if applicable)the highest preferential amount per share
to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
(c) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date,
whichever is higher; and
(d) (if applicable) the price per share equal to the Fair
Market Value per share of such class of Voting Stock determined
pursuant to paragraph B(ii)(c) above, multiplied by the ratio of
(1) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of such class of Voting
Stock acquired by it within the two-year period immediately prior
to the Announcement Date to (2) the Fair Market Value per share
of such class of Voting Stock on the first day in such two-year
period upon which the Interested Stockholder acquired any shares
of such class of Voting Stock.
(iii) The consideration to be received by holders of a particular
class of outstanding voting Stock (including Common Stock) shall be in
cash or in the same form as the Interested Stockholder has previously
paid for shares of such class of Voting Stock. If the Interested
Stockholder has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration for such
class of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class of Voting Stock previously
acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination: (a) except as approved by a majority of the Continuing
Directors, there shall have
11
been no failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on the
outstanding Preferred Stock; (b) there shall have been (1) no
reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock),
except as approved by a majority of the Continuing Directors, and (2)
an increase in such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is approved
by a majority of the Continuing Directors; and (c) such Interested
Stockholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming an Interested
Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to public stockholders of the Corporation
at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
SECTION 4. Certain Definitions. For the purpose of this Article
EIGHTH:
A. A "person" shall mean any individual, firm, corporation or other
entity.
B. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than
10% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933, as amended.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
12
(ii) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (b) the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
D. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 4, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph C of this Section 4 but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on October 13, 1983.
F. "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph B of this Section 4, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Continuing Director" means any member of the Board of Directors of
the Corporation (the "Board") who is unaffiliated with the Interested
Stockholder and was a member of the Board prior to the time that the Interested
Stockholder became an Interested Stockholder, and any successor of a Continuing
Director who is unaffiliated with the Interested stockholder and is recommended
to succeed a Continuing Director by a majority of Continuing Directors then on
the Board.
H. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities and Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotations system or any system then in use, or if no such quotations
are available, the fair market value on the date in questions of a share of such
stock as determined by the Board in good faith; and (ii) in the case of property
other than cash or stock, the fair market value of such property on the date in
questions as determined by the Board in good faith.
I. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in paragraphs
B (i) and (ii) of Section 3 of this Article EIGHTH shall include the shares of
Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
SECTION 5. Powers of the Board of Directors. A majority of the
directors of the Corporation shall have the power and duty to determine for the
purposes of this Article EIGHTH, on the basis of information known to them after
reasonable inquiry, all facts necessary to determine compliance with this
Article EIGHTH, including, without limitation, (A) whether a person is a
Interested Stockholder, (B) the number of shares of Voting Stock beneficially
owned by any person, (C) whether a person is an Affiliate or Associate of
another, (D) whether the requirements of paragraph B of Section 3 have been met
with respect to any Business Combination, and (E) whether the assets which are
the subject of any Business Combination have, or the consideration to be
received for the
13
issuance or transfer of securities by the Corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $10,000,000 or more.
SECTION 6. No Effect on Fiduciary Obligations of Interested
Stockholders. Nothing contained in this Article EIGHTH shall be construed to
relieve the Board or any Interested Stockholder from any fiduciary obligation
imposed by law.
SECTION 7. Amendment, Repeal, Etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the Bylaws of the Corporation
(and notwithstanding the fact that a lesser percentage may be specified by law,
this Certificate of Incorporation or the Bylaws of the Corporation), the
affirmative vote of the holders of at least 80% of the voting power of the
Voting Stock, voting together as a single class, shall be required to amend or
repeal, or adopt any provisions inconsistent with, this Article EIGHTH.
NINTH:
SECTION 1. Number, Election and Terms of Directors. The business and
affairs of the Corporation shall be managed by a Board of Directors consisting
of not less than nine or more than fifteen persons. The exact number of
directors within the minimum and maximum limitations specified in the preceding
sentence shall be fixed from time to time by the Board of Directors pursuant to
a resolution adopted by a majority of the entire Board of Directors. At the 1984
Annual Meeting of Stockholders, the directors shall be divided into three
classes, as nearly equal in number as possible, with the term of office of the
first class to expire at the 1985 Annual Meeting of Stockholders, the term of
office of the second class to expire at the 1986 Annual Meeting of Stockholders
and the term of office of the third class to expire at the 1987 Annual Meeting
of Stockholders. Commencing with the 1985 Annual Meeting of Stockholders,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding Annual Meeting of
Stockholders after their election.
SECTION 2. Calling Special Meetings of Stockholders. A special meeting
of the stockholders may be called at any time and for any purpose or purposes by
the Board of Directors, and shall be called by the Secretary upon the written
request of the holders of record of at least 80% of the voting power of the
voting Stock. Every such request shall state the purpose or purposes of each
meeting.
SECTION 3. Newly-Created Directorships and Vacancies on the Board of
Directors. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly-created directorships resulting from any increase in the
authorized number of directors or any vacancies on the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the directors then
in office, although less than a quorum; and any director so chosen shall hold
office until the next Annual Meeting of Stockholders. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 4. Removal of Directors. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, any director, or the entire
Board of Directors, may be removed by the stockholders from office at any time
but only for cause and only by the affirmative vote of the holders of at least
80% of the voting power of the Voting Stock, voting together as a single class.
Subject to the rights of the holders of any series of Preferred Stock then
outstanding, any director may be removed form office at any time, but only for
cause, by the vote of a majority of the entire Board of Directors.
SECTION 5. Amendment of By-laws or Certificate of Incorporation.
Notwithstanding any other provisions of this Certificate of Incorporation or the
By-laws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
By-laws of the Corporation), the affirmative vote of the holders of at least 80%
of the voting power of the Voting Stock, voting together as a single class,
shall be required for the stockholders of the Corporation to amend, repeal or
adopt any By-laws of the Corporation or to adopt any amendment to this
Certificate of Incorporation inconsistent with the By-laws of the Corporation.
SECTION 6. Amendment, Repeal, Etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-laws of the
Corporation (and notwithstanding the fact that a lesser percentage may be
14
specified by law, this Certificate of Incorporation or the By-laws of the
Corporation), the affirmative vote of the holders of at least 80% of the voting
power of the Voting Stock, voting together as a single class, shall be required
to amend or repeal, or to adopt any provision inconsistent with, this Article
NINTH.
TENTH:
To the fullest extend now or hereafter not expressly prohibited by the
Business Corporation Law of the State of New York as currently in effect or as
the same may hereafter be amended, no Director of the Corporation shall be
personally liable to the Corporation or its stockholders for damages for any
breach of duty in such capacity. No amendment, modification, repeal of this
Article TENTH, nor the adoption of any provision of this Restated Certificate of
Incorporation inconsistent withthis Article TENTH shall adversely affect any
right or protection of any Director that exists at the time of such amendment,
modification, repeal or the adoption of any inconsistent provision.
IV. This restatement of the Certificate of Incorporation was
authorized by the Board of Directors.
15