Exhibit 3 (i)
CERTIFICATE OF INCORPORATION
OF
WARWICK VALLEY TELEPHONE COMPANY
Under Section 807 of the Business Corporation Law
We, the undersigned, M. Lynn Pike and Herbert Gareiss, Jr., being
respectively the President and the Secretary of Warwick Valley Telephone Company
(the "Corporation"), do hereby certify that:
I. The name of the Corporation is Warwick Valley Telephone Company.
II. The Certificate of Incorporation of the Corporation was filed by the
Department of State of the State of New York on January 16, 1902.
III. The Certificate of Incorporation of the Corporation, as amended
heretofore, is hereby further amended to effect the following
amendments authorized by Section 801 of the Business Corporation Law:
A. To replace the purposes clause with a provision that provides as
the Corporation's purposes those purposes permitted to any
business corporation, and to delete the description of the
territory in which the Corporation operated as a telephone
corporation;
B. To delete the provisions setting forth the calculation of the
Corporation's capital;
C. To change the authorized Common Shares from 2,160,000 shares, no
par value, to 10,000,000 shares, par value $0.01 per share, as
follows: change the 1,994,920 shares of Common Shares, no par
value, currently issued, including those held in treasury, into
5,984,760 shares of Common Shares, par value $0.01 per share, at
the rate of 3 shares of Common Shares for each share of Common
Shares presently issued; and to change the authorized but
unissued shares of Common Shares of the Corporation from 165,080
shares of Common Shares, no par value, to 4,015,240 shares, par
value $0.01 per share, at the rate of approximately 24.323 shares
to one.
D. D To change the authorized but unissued Preferred Shares from
2,500, par value $100 per share, to 10,000,000 shares, par value
$0.01 per share, that being a ratio of 4,000 Preferred Shares,
par value $0.01 per share, for each authorized but unissued
Preferred Share, par value $100 per share, and to leave unchanged
the 5,000 presently issued and outstanding 5% Series Preferred
Shares, as a consequence of which the Corporation shall have
10,005,000 authorized Preferred Shares, namely 10,000,000, par
value $0.01 per share and 5,000, par value $100 per share (such
5,000 being the 5% Series Preferred Shares);
E. To eliminate certain provisions relating to the 5% Series
Preferred Shares that are no longer legally relevant due to
changes in the New York laws relating to business corporations;
F. To eliminate the apparent right of holders of 5% Series Preferred
Shares to convert such shares at their discretion into shares of
Common Shares, which apparent right was based on an inadvertent
filing made without a required regulatory approval;
G. To permit the Board of Directors of the Corporation to establish
a new series of Preferred Shares with such terms and provisions
as the Board of Directors deems appropriate, subject to certain
limitations;
H. To provide (i) for the fixing of the number of directors at no
fewer than three (3) and no more than twelve (12), and (ii) for
the removal of directors for cause by the shareholders or by the
Board of Directors;
I. To delete certain information with respect to the Corporation's
initial directors and shareholders;
J. To make conforming changes to Article, paragraph, section or
clause numbers, capitalization and other stylistic changes (such
as the consistent use of defined terms and referring to the "term
of existence" rather than the "duration" of the Corporation);
K. To delete the word "The" which may or may not be at the beginning
of the Corporation's name to conform to the Corporation's
practice; and
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L. To designate the Secretary of State of the State of New York as
the Corporation's agent for service of process.
IV. This Restatement and Amendment of the Certificate of
Incorporation of the Corporation was authorized by a resolution
adopted by the Board of Directors at a meeting thereof duly
called and held, followed by the affirmative votes of the holders
of the requisite percentage of the outstanding shares of Common
Shares, cast in person or by proxy, at the Annual Meeting of the
holders of Common Shares held on April 25, 2003, and, in
addition, with respect to the authorization of additional shares
of Preferred Shares, the correction of the inadvertent filing
referred to above and the other changes in the class of Preferred
Shares referred to above, by the affirmative votes of the holders
of the requisite percentage of the outstanding shares of the
Preferred Shares, cast in person or by proxy, at the Annual
Meeting of the holders of Preferred Shares held on April 25,
2003. The aforementioned Annual Meeting was held upon notice,
pursuant to section 605 of the Business Corporation Law, to every
shareholder of record entitled to vote thereon, and neither the
Certificate of Incorporation, as previously amended, nor any
other Certificate filed pursuant to law requires a larger
proportion of votes.
IV. The text of the Certificate of Incorporation is hereby in its
entirety restated and amended to read as set forth in full below:
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CERTIFICATE OF INCORPORATION
OF
WARWICK VALLEY TELEPHONE COMPANY
FIRST: The name of the Corporation is Warwick Valley Telephone Company.
SECOND: The purposes for which the Corporation is formed are: To engage in
any lawful act or activity for which corporations may be organized under the
Business Corporation Law of the State of New York, except that the Corporation
is not organized to engage in any act or activity requiring the consent or
approval of any official, department, board, agency or other body of the State
of New York without first obtaining such consent or approval.
THIRD: The total number of shares that the Corporation shall have the
authority to issue is Twenty Million Five Thousand (20,005,000) shares. Of these
Twenty Million Five Thousand (20,005,000) authorized shares:
1. Ten Million (10,000,000) shares shall be Common Shares, and such
Common Shares shall have a par value of $0.01 per share; and
2. Ten Million Five Thousand (10,005,000) shares shall be Preferred
Shares, and of such Preferred Shares:
(a) Ten Million (10,000,000) shares shall have a par value of $0.01
per share; and
(b) Five Thousand (5,000) shares shall have a par value of $100 per
share, which shares shall be designated as 5% Series Preferred
Shares and shall have the rights, preferences and limitations set
forth in Article FOURTH below.
Subject to any exclusive voting rights which may vest in holders of
Preferred Shares under the provision of any series of Preferred Shares
established by the Board of Directors pursuant to authority herein provided, and
except as otherwise provided by law, the shares of Common Shares shall entitle
the holders thereof to one vote for each share upon all matters upon which
shareholders have the right to vote.
Subject to the limitations and in the manner provided by law, shares
of Preferred Shares may be issued from time to time in series and, subject to
the provisions of Article FOURTH with respect to Preferred Shares, the Board of
Directors is hereby authorized to establish and designate one or more series of
Preferred Shares, to fix the number of shares constituting each such series, and
to fix the designations and the relative rights, preferences and limitations of
the shares of each such series and the variations in the relative rights,
preferences and limitations as between series, and to increase and to decrease
the number of shares constituting each such series.
Subject to the limitations and in the manner provided by law, and
subject to the provisions of Article FOURTH, the authority of the Board of
Directors with respect to each such series shall include but shall not be
limited to the authority to determine the following:
1. The designation of such series;
2. The number of shares initially constituting such series;
3. The increase, and the decrease to a number not less than the
number of the outstanding shares of such series, of the number of
shares constituting such series theretofore fixed;
4. Whether or not the shares of such series shall be redeemable and,
if such shares shall be redeemable, the terms and conditions of
such redemption, including but not limited to the date or dates
upon or after which such shares shall be redeemable and the
amount per share that shall be payable upon such redemption,
which amount may vary under different conditions and at different
redemption dates;
5. The amount payable on the shares of such series in the event of
the voluntary or involuntary liquidation, dissolution or winding
up of the Corporation; provided, however, that the holders of
such shares shall be entitled to be paid, or to have set apart
for payment, not less than the par value per share before the
holders of shares of Common Shares or the holders of any other
class of stock ranking junior to the Preferred Shares as to
rights on liquidation shall be entitled to be paid any amount or
to have any amount set apart for payment; provided, further,
that, if the amounts payable on liquidation are not paid in full,
the shares of all series of the Preferred Shares (including the
5% Series Preferred Shares) shall share ratably in any
distribution of assets other than by way of dividends in
accordance with the sums which would be payable in such
distribution if all sums payable were discharged in full. A
liquidation, dissolution or winding up of the Corporation, as
such terms are used in this clause (5), shall not be deemed to be
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occasioned by or to include any consolidation or merger of the
Corporation with or into any other corporation or corporations or
a sale, lease or conveyance of all or a part of its assets;
6. Whether or not the shares of such series shall have voting
rights, in addition to the voting rights provided by law and, if
such shares shall have such voting rights, the terms and
conditions thereof, including but not limited to the right of the
holders of such shares to vote as a separate class either alone
or with the holders of shares of one or more other series of
Preferred Shares and the right to have more than one vote per
share;
7. Whether or not a sinking fund shall be provided for the
redemption of the shares of such series of Preferred Shares and,
if such a sinking fund shall be provided, the terms and
conditions thereof;
8. Whether or not the shares of such series of Preferred Shares
shall have conversion privileges, and, if such shares shall have
conversion privileges, the terms and conditions of conversion,
including but not limited to any provision for the adjustment of
the conversion rate or the conversion price; and
9. Any other relative rights, preferences and limitations which the
Board of Directors, in its discretion, may determine.
FOURTH: The respective rights, preferences and limitations of the
shares of 5% Series Preferred Shares are set forth in the following subdivisions
designated (1) to (5) inclusive which are hereinafter referred to as
subdivisions of this Article FOURTH.
The designations, preferences, privileges, voting powers, restrictions
and qualifications of the 5% Series Preferred Shares are as follows:
1. The holders of the 5% Series Preferred Shares shall be entitled
to cumulative dividends thereon at the rate of five per cent (5%)
per annum on the par value thereof, payable quarterly on March
31, June 30, September 30 and December 31 of each year, in
priority to the payments of dividends on the Common Shares. Said
dividends shall be cumulative so that if the Corporation shall
fail in any fiscal year to pay such dividends upon all the issued
and outstanding 5% Series Preferred Shares, the deficiency shall
be fully paid without interest before any dividends shall be set
apart or paid on the Common Shares. Subject to the foregoing
provisions, the 5% Series Preferred Shares shall not be entitled
to participate in any other or additional surplus or earnings of
the Corporation. The Board of Directors, in its discretion, may
declare and pay dividends on the Common Shares concurrently with
dividends on the 5% Series Preferred Shares for any dividend
period for any fiscal year when such dividends are applicable to
the Common Shares, provided, however, that all accumulated
dividends on the 5% Series Preferred Shares for all previous
fiscal years and all dividends for the previous dividend periods
for that fiscal year shall have been paid in full.
2. In case of the liquidation or dissolution or distribution of the
assets of the Corporation, the holders of 5% Series Preferred
Shares shall be paid the par value thereof and the amount of all
unpaid accrued dividends thereon before any amount shall be
payable to the holders of the Common Shares.
3. The 5% Series Preferred Shares may be redeemed in whole or in
part on any day on which a dividend shall be payable upon payment
to the holders thereof the sum of One Hundred Dollars ($100.00)
per share, and the amount of all unpaid accrued dividends thereon
at the date of such redemption. The 5% Series Preferred Shares to
be redeemed, if less than the whole thereof, shall be determined
by lot in such manner as the Board of Directors shall determine.
Thirty days' notice of such redemption shall be mailed to the
holder of each such share to be redeemed at his last known post
office address, as the same appears in the books of the
Corporation, and upon the expiration of such thirty days all the
rights and privileges of such redeemed shares and the holders
thereof, except the right to receive the redemption price and
accrued unpaid dividends, shall cease and terminate.
4. The 5% Series Preferred Shares shall have no voting power except
as otherwise herein specifically provided, however, that upon
default in the payment of six quarterly dividends upon the 5%
Series Preferred Shares, the holders of the 5% Series Preferred
Shares shall thereafter, and until such default shall have been
cured, be entitled to cast one vote for each such share upon all
questions upon which the holders of Common Shares shall have the
authority to vote, and, voting separately as a class together
with the holders of any other series of Preferred Shares to elect
the majority of the Board of Directors, the remaining members of
the Board of Directors to be elected by the holders of the Common
Shares.
5. The entire voting power shall be vested in the Common Shares,
except in the event of default in the payment of dividends upon
the 5% Series Preferred Shares, in which event said series shall
have voting power as herein
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provided, and, except as otherwise provided for the Preferred
Shares of another series which may be designated, the Common
Shares shall be vested with the whole interest in the earnings
and assets of the corporation.
FIFTH: The vote of the shareholders of the Corporation required to
approve any Business Combination shall be as set forth in this Article FIFTH.
The term "Business Combination" shall have the meaning ascribed to it in
sub-paragraph 1(b) of this Article FIFTH. Each other capitalized term shall have
the meaning ascribed to it in subparagraph 3 of this Article FIFTH.
1.
(a) In addition to any affirmative vote required by law or this
Certificate of Incorporation and except as otherwise expressly
provided in sub-paragraph 2 of this Article FIFTH:
(i) any merger or consolidation of the Corporation or any
Subsidiary with (1) any Interested Shareholder or (2) any other
person (whether or not itself an Interested Shareholder) which
is, or after such merger or consolidation would be, an Affiliate
of an Interested Shareholder; 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 Shareholder or any
Affiliate of any Interested Shareholder of assets of the
Corporation or any Subsidiary having an aggregate Fair Market
Value of One Million Dollars ($1,000,000) or more; or
(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 Shareholder or any Affiliate of any Interested
Shareholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value
of One Million Dollars ($1,000,000) or more, other than the
issuance of securities upon the conversion of convertible
securities of the Corporation or any Subsidiary which were not
acquired by such Interested Shareholder (or such Affiliate) from
the Corporation or a Subsidiary; 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 Shareholder or any Affiliate of any
Interested Shareholder; or
(v) any transaction involving the Corporation or any
Subsidiary (whether or not with or into or otherwise involving an
Interested Shareholder), and including without limitation, any
reclassification of securities (including any reverse stock
split), or recapitalization or reorganization of the Corporation,
or any merger or consolidation of the Corporation with any of its
Subsidiaries or any self-tender offer for or repurchase of
securities of the Corporation by the Corporation or any
Subsidiary or any other transaction (whether or not with or into
or otherwise involving an Interested Shareholder), which in any
such case has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any class of
equity securities or securities convertible into equity
securities of the Corporation or any Subsidiary which is directly
or indirectly beneficially owned by any Interested Shareholder or
any Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least 70 percent of the
combined voting power of the then outstanding shares of the Voting Stock, in
each case voting together as a single class (it being understood that for
purposes of this Article FIFTH each share of the Voting Stock shall have the
number of votes granted to it pursuant to this Certificate of Incorporation or
the terms of any series of the Corporation's Preferred Shares), which vote shall
include the affirmative vote of at least two-thirds (2/3) of the combined voting
power of the outstanding shares of Voting Stock held by shareholders other than
the Interested Shareholder. Such affirmative vote shall be required
notwithstanding any provision of law or any other provision of this Certificate
of Incorporation or any agreement which might permit a lesser vote or no vote
and in addition to any affirmative vote required of the holders of any class or
series of Voting Stock pursuant to law, this Certificate of Incorporation or the
terms of any series of the Corporation's Preferred Shares.
(b) The term "Business Combination" as used in this Article
FIFTH shall mean any transaction that is referred to in any one
or more clauses (i) through (v) of sub-paragraph 1(a) of this
Article FIFTH.
2. The provisions of sub-paragraph 1 (a) of this Article FIFTH
shall not be applicable to any particular Business
Combination, and such Business Combination shall require
only such affirmative vote as may be required by law, any
other provision of this Certificate of Incorporation, or the
terms of any series of the Corporation's Preferred Shares,
if, in the case of a Business Combination that does not
involve any cash or other consideration being received by
the shareholders of the Corporation, solely in their
respective capacities as shareholders of the Corporation,
the condition specified in the following sub-paragraph (a)
is met, or, in the case of any other Business
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Combination, the conditions specified in the following
sub-paragraph (a) or the conditions specified in the
following sub-paragraph (b) are met:
(a) such Business Combination shall have been approved by a
majority of the Disinterested Directors; or
(b) each of the conditions specified in the following
clauses (i) through (v) shall have been met:
(i) the aggregate amount of the cash and Fair Market
Value as of the Consummation Date of any consideration other
than cash to be received per share by the holders of Common
Shares in such Business Combination shall be at least equal
to the highest of the following (it being intended that the
requirements of this clause (b)(i) shall be met with respect
to all Common Shares outstanding whether or not the
Interested Shareholder has acquired any Common Shares):
(1) if applicable, the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealer's fees) paid in order to
acquire any common shares beneficially owned by the
Interested Shareholder which were acquired
beneficially by such Interested Shareholder (x)
within the two-year period immediately prior to the
Announcement Date or (y) in the transaction in which
it became an Interested Shareholder, whichever is
higher; or
(2) the Fair Market Value per Common Share on
the Announcement Date or on the Determination Date,
whichever is higher; or
(3) the amount which bears the same
percentage relationship to the Fair Market Value of
the Common Shares on the Announcement Date as the
highest per share price determined in (b)(i)(1)
above bears to the Fair Market Value of the common
shares on the date of the commencement of the
acquisition of Common Shares by such Interested
Shareholder; and
(ii) the aggregate amount of the cash and the Fair
Market Value as of the Consummation Date of any
consideration other than cash to be received per share by
holders of the shares of any class or series of outstanding
Voting Stock other than Common Shares shall be at least
equal to the highest of the following (it being intended
that the requirements of this clause (b)(ii) shall be met
with respect to every class and series of such Voting Stock,
whether or not the Interested Shareholder has previously
acquired any shares of a particular class or series of such
Voting Stock):
(1) if applicable, the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealer's fees) paid in order to
acquire any shares of such class or series Voting
Stock beneficially owned by the Interested
Shareholder that were acquired beneficially by such
Interested Shareholder (x) within the two-year
period immediately prior to the Announcement Date or
(y) in the transaction in which it became the
Interested Shareholder, whichever is higher; or
(2) if applicable, the highest preferential
amount per share to which the holders of shares of
such class or series of Voting Stock are entitled in
the event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Company; or
(3) the Fair Market Value per share of such
class or series of Voting Stock on the Announcement
Date or on the Determination Date, whichever is
higher; or
(4) the amount which bears the same
percentage to the Fair Market Value of such class or
series of Voting Stock on the Announcement Date as
the highest per share price in clause (b)(ii)(1)
above bears to the Fair Market Value of such Voting
Stock on the date of the commencement of the
acquisition of such Voting Stock by such Interested
Shareholder; and
(iii) the consideration to be received by holders of a
particular class or series of outstanding Voting Stock
(including Common Shares) shall be in cash or in the same
form as was previously paid in order to acquire beneficially
shares of such class or series of Voting Stock that are
beneficially owned by the Interested Shareholder and, if the
Interested Shareholder beneficially owns shares of any class
or series of Voting Stock that were acquired with varying
forms of consideration, the form of consideration to be
received by each holder of shares of such class or series of
Voting Stock shall be, at the option of such holder, either
cash or the form used by the Interested
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Shareholder to acquire beneficially the largest number of
shares of such class or series of Voting Stock beneficially
acquired by it prior to the Announcement Date; and
(iv) after such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
Business Combination:
(1) such Interested Shareholder shall not have
become the beneficial owner of any additional shares of
Voting Stock of the Corporation, except as part of the
transaction in which it became an Interested Shareholder
or upon conversion of convertible securities acquired by
it prior to becoming an Interested Shareholder or as a
result of a pro rata stock dividend or stock split; and
(2) such Interested Shareholder shall not have
received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial
assistance or tax credits or other tax advantages
provided by the Corporation or any Subsidiary, whether
in anticipation of or in connection with such Business
Combination or otherwise; and
(3) such Interested Shareholder shall not have
caused any material change in the Corporation's business
or capital structure including, without limitation, the
issuance of shares of capital stock of the Corporation
to any third party; and
(4) there shall have been (x) no failure to
declare and pay at the regular date therefore the full
amount of dividends (whether or not cumulative) on any
outstanding preferred shares of the Corporation except
as approved by a majority of the Disinterested
Directors, (y) no reduction in the annual rate of
dividends paid on Common Shares (except as necessary to
reflect any subdivision of the Common Shares), except as
approved by a majority of the Disinterested Directors,
and (z) an increase in such annual rate of dividends (as
necessary to prevent any such reduction) in the event of
any reclassification (including any reverse stock
split), recapitalization, reorganization, self tender
offer or any similar transaction which has the effect of
reducing the number of outstanding Shares of Common
Shares, unless the failure so to increase such annual
rate was approved by a majority of the Disinterested
Directors; and
(v) 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 and regulations),
whether or not the Corporation is then subject to such
requirements, shall be mailed by and at the expense of the
Interested Shareholder at least thirty (30) days prior to
the Consummation Date of such Business Combination to the
public shareholders of the Corporation (whether or not such
proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions), and may
contain at the front thereof in a prominent place (i) any
recommendations as to the advisability (or inadvisability)
of the Business Combination which the Disinterested
Directors, if any, may choose to state, and (ii) the opinion
of a reputable national or regional investment banking firm
with expertise in telecommunications as to the fairness (or
not) of such Business Combination from the point of view of
the remaining public shareholders of the Corporation (such
investment banking firm to be engaged solely on behalf of
the remaining public shareholders, to be paid a reasonable
fee for its services by the Corporation upon receipt of such
opinion, to be unaffiliated with such Interested
Shareholder, and, if there are at the time any Disinterested
Directors, to be selected by a majority of the Disinterested
Directors).
3 For purposes of this Article FIFTH:
(a) A "person" shall include, without limitation, any
individual, firm, corporation, group (as such term is used in
Regulation 13D-G of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on January 1, 1987)
or other entity.
(b) "Interested Shareholder" shall mean any person (other
than the Corporation or any Subsidiary or any employee benefit
plan of the Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of
more than 10 percent of the combined voting power of the
then outstanding shares of 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 percent or more of the combined voting power of the
then outstanding shares of Voting Stock; or
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(iii) is an assignee of or has otherwise succeeded to
the beneficial ownership of any shares of Voting Stock that
were at any time within the two-year period immediately
prior to the date in question beneficially owned by an
Interested Shareholder, 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.
(c) A person shall be a "beneficial owner" of any Voting
Stock:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (1) the right to acquire (whether or not such
right is exercisable immediately) pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (2) the right to vote or direct the vote
pursuant to any agreement, arrangement or understanding; or
(iii) which are 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 Shareholder pursuant to sub-paragraph 3 (b) of this
Article FIFTH, the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned by such Interested
Shareholder through application of sub-paragraph 3 (c) of this
Article FIFTH but shall not include any other shares of Voting
Stock that may be issuable pursuant to any agreement,
arrangements or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(e) "Affiliate" and "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 January 1, 1987.
(f) "Subsidiary" shall mean any person more than 50 percent
of whose outstanding equity securities having ordinary voting
power in the election of directors is owned, directly or
indirectly, by the Corporation or by a Subsidiary or by the
Corporation and one or more Subsidiaries; provided, however, that
for the purposes of the definition of Interested Shareholder set
forth in sub-paragraph 3(b) of this Article FIFTH, the term
"Subsidiary" shall mean only a person of which a majority of each
class of stock ordinarily entitled to vote for the election of
directors is owned, directly or indirectly, by the Corporation.
(g) "Disinterested Director" shall mean any member of the
Board of Directors of the Corporation who is unaffiliated with,
and not a nominee of, the Interested Shareholder and was a member
of the Board prior to the time that the Interested Shareholder
became an Interested Shareholder, and any successor of a
Disinterested Director who is unaffiliated with, and not a
nominee of, the Interested Shareholder and who is recommended to
succeed a Disinterested Director by a majority of Disinterested
Directors then on the Board of Directors.
(h) "Fair Market Value" shall mean: (1) in the case of
stock, the highest closing sale price during the 30-day period
commencing on the 40th day 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
New York Stock Exchange Composite Tape, on the principal United
States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed; or if such
stock is not listed on any such exchange, the highest closing
sale price or bid quotation with respect to a share of such stock
during the 30-day period commencing on the 40th day 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 question of a share of such stock as
determined by a majority of the Disinterested Directors in good
faith; and (2) in the case of property other than cash or stock,
the fair market value of such property on the date in question as
determined by a majority of the Disinterested Directors in good
faith.
(i) In the event of any Business Combination in which the
Corporation survives, the phrase "any consideration other than
cash to be received" as used in sub-paragraphs 2(b)(i) and
2(b)(ii) of this Article FIFTH shall include Common Shares and/or
the shares of any other class or series of outstanding Voting
Stock retained by the holders of such shares.
(j) "Announcement Date" shall mean the date of first public
announcement of the proposed Business Combination.
(k) "Determination Date" shall mean the date on which the
Interested Shareholder became an Interested Shareholder.
(l) "Consummation Date" shall mean the date of the
consummation of the Business Combination.
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(m) The term "Voting Stock" shall mean, in any given
time, all outstanding shares of Common Shares of the
Corporation and all outstanding shares of any other classes or
series of the corporation's capital stock, the holders of
which are entitled at such time to vote upon all questions
upon which the holders of shares of Common Shares shall have
the authority to vote, in each case voting together as a
single class.
4. A majority of the Disinterested Directors shall have
the power and duty to determine, on the basis of
information known to them after reasonable inquiry,
all facts necessary to determine compliance with this
Article FIFTH including, without limitation:
(a) whether a person is an Interested Shareholder;
(b) the number of shares of Voting Stock or any other
stock beneficially owned by any person;
(c) whether a person is an Affiliate or Associate of
another person;
(d) whether the requirements of sub-paragraph 2(b) of
this Article FIFTH have been met with respect to any Business
Combination;
(e) whether the assets which are the subject of any
Business Combination have, or the consideration to be received
for the issuance or transfer of securities by the corporation
or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of One Million Dollars
($1,000,000) or more; and
(f) all other matters with respect to which a
determination is required under this Article FIFTH.
5. Nothing contained in this Article FIFTH shall be
construed to relieve any Interested Shareholder from
any fiduciary obligation imposed by law.
6. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 70
percent of the combined voting power of the Voting
Stock shall be required to alter, amend or repeal
this Article FIFTH or to adopt any provision
inconsistent therewith; provided, however, that if
there is an Interested Shareholder on the record date
for the meeting at which such action is submitted to
the shareholders for their consideration, such 70
percent vote must include the affirmative vote of at
least two-thirds (2/3) of the combined voting power
of the outstanding shares of Voting Stock held by
shareholders other than the Interested Shareholder.
7. Nothing contained in this Article FIFTH is intended,
or shall be construed, to affect any of the relative
rights, preferences or limitations, within the
meaning of such terms under Section 801(b)(12) of the
New York Business Corporation Law or any successor
statute, of any shares of any authorized class or
series of the corporation's stock, whether issued or
unissued.
SIXTH: The Board of Directors of the Corporation, when
evaluating any offer of another party to (1) purchase, or exchange any
securities or property for, any outstanding equity securities of the Corporation
or any subsidiary; (2) merge or consolidate the Corporation or any subsidiary
with another company; or (3) purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation or any subsidiary, shall, in
connection with the exercise of its judgment in determining what is in the best
interest of the Corporation and its shareholders, give due consideration not
only to the price or other consideration being offered but also to all other
relevant factors, including, without limitation, (i) the financial and
managerial resources and future prospects of the offeror; (ii) the possible
effects on the business of the Corporation and its subsidiaries and on the
ratepayers, and other customers, employees, suppliers and creditors of the
Corporation and its subsidiaries; and (iii) the possible effects on the
communities in which the facilities of the Corporation and its subsidiaries are
located. In so evaluating any such offer, the Board of Directors shall be deemed
to be acting in accordance with its duly authorized duties and in good faith, in
the best interests of the Corporation.
SEVENTH: Except as otherwise specifically provided by law or
in this Certificate of Incorporation, the affirmative vote in person or by proxy
of the holders of seventy percent (70%) of the combined voting power of the
issued and outstanding common shares of the Corporation and the issued and
outstanding shares of any other classes or series of the Corporation's capital
stock, the holders of which are entitled at the time to vote upon all questions
upon which the holders of Common Shares shall have the authority to vote, shall
be required to adopt any plan of merger or consolidation (other than any plan of
merger involving the merger into the Corporation of one or more subsidiaries of
the Corporation, provided the Corporation owns 90% or more of each class of
stock of such subsidiary or subsidiaries) or to approve the sale of all or
substantially all of the Corporation's assets. Any amendment to the Certificate
of Incorporation which amends, deletes or otherwise modifies or changes this
section of the Certificate of Incorporation or any part thereof, shall be
authorized by a like vote of the shareholders. Nothing contained in this Article
SEVENTH is intended, or shall be construed, to affect any of the relative
rights, preferences or limitations,
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within the meaning of such terms under Section 801(b)(12) of the New York
Business Corporation Law or any successor statute, of any shares of any
authorized class or series of the Corporation's stock, whether issued or
unissued.
EIGHTH: The term of existence of the Corporation shall be
perpetual.
NINTH: To the fullest extent now or hereafter provided for or
permitted by law, no director of the Corporation shall be personally liable to
the Corporation or its shareholders for damages for any breach of duty in such
capacity. Neither the amendment or repeal of this Article nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article shall eliminate or reduce the protection afforded by this Article to a
director of the Corporation in respect to any matter which occurred, or any
cause of action, suit or claim which but for this Article would have accrued or
arisen, prior to such amendment, repeal or adoption.
TENTH: 1. Subject to the rights of holders of Preferred Shares
to elect directors under specified circumstances, the number of directors of the
Corporation shall be not less than three (3) nor more than twelve (12).
2. Subject to the rights of holders of Preferred
Shares, any director may be removed from office only for cause and (i) by the
affirmative vote of the holders of not less than a majority of the voting power
of all of the outstanding shares of capital stock entitled to vote generally in
the election of such directors or (ii) by the majority vote of the members of
the Board of Directors then in office. For purposes of this Paragraph, "cause"
shall mean the willful and continuous failure of a director to substantially
perform such director's duties to the Corporation (other than any such failure
resulting from incapacity due to physical or mental illness) or the willful
engaging by a director in gross misconduct materially and demonstrably injurious
to the Corporation.
ELEVENTH: No holder of any share of stock of this Corporation
shall be entitled as a matter of right to subscribe for, purchase or receive any
part of the unissued stock of the Corporation or any stock of the Corporation to
be issued by reason of any increase of the authorized capital stock of the
Corporation or any stock of the Corporation purchased by the Corporation or by
its nominees, or to subscribe for, purchase or receive any rights to or option
to purchase any such stock or any bonds, certificates of indebtedness,
debentures or other securities convertible into or carrying options or warrants
to purchase stock or other securities of the Corporation, or have any other
pre-emptive rights as now or hereafter defined by the laws of the State of New
York.
TWELFTH: The office of the Corporation in the State of New
York is located in the County of Orange. The Secretary of State of the State of
New York is hereby designated as an agent of the Corporation on whom all process
in any action or proceeding against the Corporation may be served within the
State of New York. The address to which the Secretary of State shall mail a copy
of any process that may be served upon him is Warwick Valley Telephone Company,
Attention: President, 47 Main Street, Warwick, New York 10990.
******
IN WITNESS WHEREOF, the undersigned have executed and
subscribed this Restated Certificate of Incorporation this 10th day of
September, 2003.
/S/ M. Lynn Pike
----------------
M. Lynn Pike
President and Chief Executive Officer
/S/ Herbert Gareiss, Jr.
------------------------
Herbert Gareiss, Jr.
Secretary
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STATE OF NEW YORK )
)SS:
COUNTY OF ORANGE )
On Sept. 10, 2003, M. Lynn Pike, being duly sworn, deposes and
says that he is the President and Chief Executive Officer of Warwick Valley
Telephone Company, the corporation named in the foregoing Restated and Amended
Certificate of Incorporation, that he has read and signed the foregoing Restated
Certificate of Incorporation, and that the statements contained therein are
true.
/S/ Cynthia S. O'Neill
----------------------
Notary Public
CYNTHIA S. O'NEILL
Notary Public, state of New York
No. 50432425
Qualified in Orange County
Commission Expires August 29, 2006
STATE OF NEW YORK )
)SS:
COUNTY OF ORANGE )
On Sept. 10, 2003, Herbert Gareiss, Jr., being duly sworn,
deposes and says that he is the Secretary of Warwick Valley Telephone Company,
the corporation named in the foregoing Restated and Amended Certificate of
Incorporation, that he has read and signed the foregoing Restated Certificate of
Incorporation, and that the statements contained therein are true.
/S/ Cynthia S. O'Neill
----------------------
Notary Public
CYNTHIA S. O'NEILL
Notary Public, state of New York
No. 5032425
Qualified in Orange County
Commission Expires August 29, 2006
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