EXHIBIT 3(a)
RESTATED
CERTIFICATE OF INCORPORATION
OF
PICO PRODUCTS, INC.
FIRST: The name of the Corporation is Pico Products, Inc. (the
"Corporation").
SECOND: The purpose for which it is to be formed are as follows:
2.1. To conduct the business of manufacturing, buying, selling, servicing,
assembling, preparing for market, importing, exporting, leasing,
renting, distributing, advertising, promoting, owning, acquiring,
developing, inventing, patenting, and generally dealing in every sort
of electrical, printed circuit, cable television, radio,
telecommunication, and other devices, machinery, appliances, equipment
and the purchasing, selling, pledging, mortgaging, granting of
security interests in licensing, leasing, and otherwise acquiring,
using and disposing of patents, patent rights, inventions, trademarks,
tradenames, trade secrets, copyrights, research, ideas and systems,
and to acquire all real estate and plant or plants necessary to carry
out the above objects.
2.2. To manufacture, patent, buy, sell and generally deal in metal name
plates, alkali, acid and photo etched and any and all other kinds or
types of identification items, including tapes and labels for hard
goods, hardware, transportation, military, amusement, electrical,
electronic and any other type, kind or nature of its requiring product
identification and all other kinds and types of product
identification, machinery and machinery for the manufacture thereof.
To acquire all real estate and plant or plants necessary to carry out
the above objects.
2.3. To borrow money, with or without pledge of, or security interest in or
mortgage on, all or any of its property, real or personal, as
security, and to loan and advance money upon mortgages on real and
personal property, or either of them.
2.4. To sell, manage, improve, develop, assign, transfer, convey, lease,
sublease, pledge, grant a security interest in or otherwise alienate
or dispose of and to mortgage or otherwise encumber the lands,
buildings, real property, chattels, real and other property of the
Corporation, wheresoever situate and any and all legal and equitable
rights therein.
2.5. To buy, sell and deal in, with or without guarantee of payment
thereof, notes, stocks, bonds and mortgages and other like securities
and other kinds of property, whether real or personal, not prohibited
or especially excepted by
law, and to do and prosecute any acts and thing incidental to or
proper in connection with the carrying out of its business.
2.6. To subscribe for, purchase, invest in, hold, own, pledge, grant a
security interest in, assign, or otherwise dispose of, shares of
capital stock, bonds, mortgages, debentures, notes or other securities
obligations, contracts, and evidence of indebtedness of corporations
organized under the law of the State of New York, and any other state
of the United States, and of any foreign government, and the bonds and
other evidences of indebtedness of the United States and foreign
governments, and the stocks, bonds and indebtedness of foreign
corporations and municipalities. To exercise in respect to any such
shares of stock, bonds, and other securities of corporations,
municipalities, foreign or domestic governments, any and all rights,
powers, privileges of individual ownership, including the right to
vote, to issue bonds and other obligations, and to secure the same by
pledging or mortgaging the whole or any part of the property of the
Corporation, and to sell or pledge such bonds and other obligations
for proper corporate purposes, and to do any and all acts and things
tending to increase the value of the property at any time held by it.
The Corporation shall be and hereby is authorized to purchase, hold,
acquire and dispose of the stocks, bonds and other evidences of
indebtedness of any corporation, domestic or foreign, and to issue and
exchange therefor its stock, bonds or other obligations.
2.7. To purchase or otherwise acquire, undertake, carry on, improve or
develop all or any of the business, goodwill, rights, assets or
liabilities of any person, firm, association or corporation carrying
on any kind of business the same as, or of a similar nature to that
which the Corporation is authorized to carry on, pursuant to the
provisions of this Certificate.
2.8. To use its surplus earnings or accumulated profits in the purchase or
acquisition of its own capital shares from time to time as its Board
of Directors shall determine, and any capital shares purchased may, if
the Directors so determine, be held in the treasury of the Corporation
as treasury shares, or be thereafter reissued or disposed of in such
manner as the Directors, subject to the provisions of law, shall deem
proper.
2.9. To issue in exchange for stocks, bonds, contracts, mortgages or other
obligations of individuals, co-partners or corporations, the shares of
the Corporation therefor.
2.10. To do all and everything necessary, suitable, useful or proper
for the accomplishment of any of the purposes or the attainment of any
of the objects or the furtherance of any of the powers hereinbefore
set forth, as principal or agent, either alone or in association with
other corporations, firms, or individuals, and to do every act or
acts, thing or things incidental or appurtenant
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to or growing out of or connected with any of the aforesaid purposes,
objects and powers, or any parts or part thereof, and to do any such
act or thing to the same extent and as fully as natural persons might
or could do in any part of the world.
2.11. To buy, sell, manage and generally deal in goods, wares,
merchandise, and property of any and every class and description, and
generally do any and all things and exercise any and all powers which
may now or hereafter be lawful for a corporation to do or exercise
under and pursuant to the Business Corporation Law of the State of New
York, or any other law that may be now or hereafter applicable to the
Corporation.
THIRD: The total number of shares of all classes which the Corporation
shall have authority to issue is fifteen million five hundred thousand
(15,500,000) shares, of which fifteen million (15,000,000) shall be common
shares, having a par value of $0.01 per share ("Common Shares"), and five
hundred thousand (500,000) shall be series preferred shares, having a par value
of $0.01 per share ("Preferred Shares").
3.1 The designations, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of the shares
of each class shall be governed by the following provisions:
3.1.1.1 The Board of Directors of the Corporation has
authority, subject to the provisions of this Article THIRD and the
limitations prescribed by law to authorize the issue of one or more
series of Preferred Shares and with respect to each such series to
execute, deliver and file any certificate which the Board of Directors
may deem to be necessary or appropriate under the Business Corporation
Law of New York. The authority of the Board of Directors with respect
to each of the series shall include, but not be limited to, the fixing
of the following by resolutions providing for the issue of that
series.
(a) The designation of the series and the number of Preferred
Shares which shall constitute the series.
(b) The dividend rate of the series, the conditions and dates
upon which dividends shall be payable, the relation which
the dividends shall bear to the dividends payable on any
other series or class of shares, and whether such dividends
shall be cumulative or non-cumulative.
(c) Whether the shares of the series shall be subject to
redemption by the Corporation and, if made subject to
redemption, the times, prices and other terms and conditions
of redemption.
(d) Whether the shares of the series shall be convertible into
or exchangeable for shares of any other series or class of
shares of
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the Corporation and, if provision is made for conversion or
exchange, the times, prices, rates, adjustments, and other
terms and conditions of conversion or exchange.
(e) The extent, if any, to which the holders of the shares of
the series shall be entitled to vote with respect to the
election of Directors or otherwise.
(f) The restrictions, if any, on the issue or reissue of any
additional Preferred Shares of the series.
(g) The rights of the holders of the shares of the series upon
the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets or dissolution
or winding up, of the Corporation.
(h) Such other designations, preferences and relative
participatory, optional or other special rights of the
shares of the series and all other restrictions on the
Corporation in connection with the Preferred Shares (subject
to this Restated Certificate of Incorporation or the laws of
the State of New York).
3.1.2. Except as otherwise required by law and except for such
voting powers with respect to the election of Directors or other
matters as may be stated in the resolution or resolutions of the Board
of Directors providing for the issue of any series of Preferred
Shares, the holder of any such series shall have no voting power
whatsoever and all voting rights shall be vested exclusively in the
holders of the outstanding Common Shares and each such holder shall be
entitled to one vote per share for all purposes for each Common Share
held of record by such holder.
3.1.3. When dividends shall have been paid (or declared and
set aside for payment) on the Preferred Shares to the full extent of
the preferences, if any, dividends on the Common Shares and on any
Preferred Shares participating in dividends in addition to be fixed
dividends may then be paid out of the funds of the Corporation which
are legally available therefor. Subject to the limitations prescribed
in this Article THIRD and any further limitations which may from time
to time be prescribed by the Board of Directors in accordance
herewith, the holders of Common Shares shall be entitled to receive
dividends on the Common Shares when, as and if declared by the Board
of Directors, out of the funds of the Corporation which are legally
available therefor.
3.1.4. No holder of shares of any class of shares of the
Corporation shall as such holder have any preemptive or preferential
right of subscription to any shares of any class of the Corporation or
to any obligations convertible into
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shares of the Corporation, issued or sold, or to any right of
subscription to, or to any warrant or option for the purchase of any
thereof, other than such (if any) as the Board of Directors of the
Corporation, in its discretion, may determine from time to time.
3.2 Pursuant to this Paragraph THIRD of the Certificate of Incorporation
of the Corporation, there be and hereby is created a series of
Preferred Shares hereby designated as Series A Redeemable Preferred
Shares, to consist of one thousand (1,000) shares having a par value
of $0.01 per share, which series shall have the voting rights,
designations, powers, preferences, relative and other special rights,
and qualifications, limitations and restrictions set forth below:
3.2.1. DESIGNATION. The designation of the series of Preferred
Shares created hereby is Series A Redeemable Preferred Shares and the
number of shares constituting such series is one thousand (1,000) (the
"Series A Shares").
3.2.2. RANK. The Series A Shares shall, with respect to dividend
rights, rights on redemption and rights on liquidation, winding up and
dissolution, rank prior to all classes of common shares of the
Corporation and to each other class of capital shares or series of
Preferred Shares of the Corporation hereafter created which does not
expressly provide that it ranks senior to or on a parity with the
Series A Shares.
3.2.3. VOTING RIGHTS. Except as otherwise provided by law, the
holder of the Series A Shares shall not be entitled to vote on any
matters with the holders of other voting capital shares.
3.2.4. DIVIDENDS. Except as otherwise provided in this Paragraph
3.2.4, the holder of the Series A Shares shall not be entitled to
receive dividends.
(a) GENERAL DIVIDEND OBLIGATIONS. When and as declared by the
Board of Directors of the Corporation, the Corporation shall
pay to the holders of the Series A Shares, out of the assets
of the Corporation available for such payment of dividends
under the New York Business Corporation Law, payable in
preference and priority to any payment of any dividend on
common shares of the Corporation, dividends at the times and
in the amounts provided in this Paragraph 3.2.4. The Board
of Directors of the Corporation shall declare and pay to the
holder of Series A Shares dividends at the Dividend Rate
described in Paragraph 3.2.4(c) below on a quarterly basis;
provided that the Board of Directors may in its discretion
postpone the declaration and payment of one or more
quarterly dividends so long as dividends are declared and
paid on at least an annual basis.
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(b) CALCULATION OF DIVIDENDS. Dividends for each Series A
Share will be calculated cumulatively on a quarterly basis
at the rate and in the manner prescribed herein from and
including the "Commencement Date" with respect to such
Series A Shares to, but excluding, the date on which the
Series A Shares are redeemed or the Liquidation Price has
been received with respect to the Series A Shares, whether
or not such dividends have been declared and whether or
not there are (at the time such dividends are calculated or
become payable or at any other time) profits, surplus or
other funds of the Corporation legally available for the
payment of dividends.
For the purposes of this Subparagraph 3.2.4(b), the
"Commencement Date" with respect to any Series A Share shall
be deemed to be the date of issuance regardless of the
number of times transfer of such Series A Share is made on
the share records maintained by or for the Corporation and
regardless of the number of certificates which may be issued
to evidence such Series A Share (whether by reason of
transfer of such Series A Share or for any other reason.)
(c) DIVIDEND RATE. Dividends payable on the Series A Shares
shall be calculated cumulatively with respect to each
quarter in which dividends are due on each Series A Share at
a rate of 12% of the Liquidation Value per annum ("Dividend
Rate"). To the extent not paid on the first day of each
January, April, July, and October (each a "Dividend
Reference Date"), an amount equal to all dividends which
have been calculated on Series A Shares then outstanding
during the quarterly period (pro rated for a shorter period
as appropriate) ending on the day immediately preceding such
Dividend Reference Date shall be added to the Redemption
Price (as described in Paragraph 3.2.7 hereof) of such
Series A Share and will remain a part thereof until (but
only until) such dividends are paid. Any subsequent
dividends which are paid to the holder of the Series A
Shares in respect thereof shall, in all instances, be
applied first to the payment of amounts of dividends which
have been added on previous Dividend Reference Dates to the
Redemption Price until the Redemption Price of all Series A
Shares shall be equal to the original Redemption Price, as
adjusted, herein stated.
(d) FORM OF PAYMENT. The Dividend Rate shall be payable
quarterly in cash or in common shares of the Corporation, as
determined by the holders of a majority of the outstanding
Series A Shares, by notice to the Corporation at least
thirty (30) days
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prior to the applicable Dividend Reference Date. In the
absence of such notice, it shall be presumed that the
dividend for the applicable quarter shall be payable in
cash. In the event that payment in the form of common
shares is elected by the holders of the Series A Shares, the
number of common shares issuable shall be determined by
dividing the amount of the dividend by the average Market
Value (as hereinafter defined) of the Corporation's common
shares over the ten consecutive trading days ending on the
trading day immediately prior to the Dividend Reference
Date. "Market Value" shall mean the average of the high and
low prices of the common shares, as reported in The Wall
Street Journal, on the American Stock Exchange (or a similar
consolidated transactions report for the exchange or other
market on which the common shares is then trading, if not
the American Stock Exchange) for the relevant date, or if no
sales of common shares were made on such exchange on such
date, the average of the high and low prices of such shares
as reported in such composite transaction report for the
preceding day on which sales of shares were made on such
exchange. If the common shares are not listed on a national
securities exchange at the time Market Value is to be
determined, then Market Value shall be determined by the
Board of Directors of the Corporation in good faith pursuant
to such method as the Board of Directors deems appropriate
and equitable. Under no circumstances shall the Market
Value of a common share be less than its par value. All
fractional shares shall be paid in cash. All unpaid cash
dividends shall be cumulative.
(e) PRIORITY. So long as any Series A Shares shall be
outstanding, without the consent of the holders of a
majority of the outstanding Series A Shares, the Corporation
shall not declare or pay on the common shares of the
Corporation any dividend whatsoever, whether in cash,
property or otherwise, nor shall the Corporation make any
distribution on the common shares, nor shall any common
shares be purchased or redeemed by the Corporation or any
subsidiary thereof, unless (1) all dividends to which the
holders of Series A Shares have been entitled for all
previous dividend periods shall have been paid or declared
and a sum of money sufficient for the payment thereof set
apart, and (2) all Series A Shares which the Corporation was
theretofore obligated to redeem in accordance with Paragraph
3.2.7 hereof shall have been redeemed.
3.2.5 LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the
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holders of Series A Shares then outstanding shall be entitled to
be paid out of the assets of the Corporation available for
distribution to its shareholders an amount equal to one thousand
dollars ($1,000.00) for each Series A Share outstanding (such amount,
as it may be adjusted from time to time to give effect to any share
splits or combinations, recapitalizations or other similar events, the
"Liquidation Value") plus an amount equal to all accumulated but
unpaid dividends thereon to the date fixed for the liquidation,
dissolution or winding up, before any payment shall be made or any
assets distributed to the holders of common shares. Except as
provided in the preceding sentence, holders of Series A Shares shall
not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of the Corporation. If the
assets of the Corporation are not sufficient to pay in full the
liquidation payments payable to the holders of the Series A Shares,
then the holders of all such shares shall share ratably in accordance
with the respective amounts to which the holders of outstanding Series
A Shares would be entitled if all amounts payable thereon were paid in
full. The liquidation payment with respect to each outstanding
fractional Series A Share (if any) shall be equal to a ratably
proportionate amount of the liquidation payment with respect to each
outstanding Series A Share.
3.2.6 CONVERSION. The Series A Shares shall not be
convertible into or exchangeable for shares of any other series or
class of shares of the Corporation.
3.2.7. REDEMPTION. The Series A Shares shall be redeemable as
follows:
(a) OPTIONAL REDEMPTION. The Series A Shares shall be
redeemable, at the option of the Corporation, in whole or in
part, at any time without penalty, at a redemption price
equal to one thousand dollars ($1,000.00) per share (the
"Redemption Price") plus an amount equal to all accumulated
but unpaid dividends thereon to the date fixed for
redemption.
(b) MANDATORY REDEMPTION. The Series A Shares shall be
redeemed, out of funds legally available therefor, at the
Redemption Price plus an amount equal to all accumulated but
unpaid dividends thereon to the date fixed for redemption on
the following dates and in the following amounts:
(i) One hundred (100) shares (less any shares previously
redeemed pursuant to Paragraph 3.2.7(a) or 3.2.7(b)) on
or before November 30, 2000;
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(ii) Two hundred (200) shares (less any shares previously
redeemed pursuant to Paragraph 3.2.7(a) or 3.2.7(b)) on
or before November 30, 2001;
(iii) Four hundred (400) shares (less any shares
previously redeemed pursuant to Paragraph 3.2.7(a) or
3.2.7(b)) on or before November 30, 2002; and
(iv) All outstanding shares on or before November 30, 2003.
(c) REDEMPTION PROCEDURES. When the Corporation redeems the
Series A Shares, the following procedures shall apply:
(i) When less than all of the outstanding Series A Shares
are being redeemed, the shares subject to redemption
shall be determined in the sole discretion of the
Corporation.
(ii) Notice of redemption shall be given by first class
mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the date on which Series A
Shares are to be redeemed (any such date, a "redemption
date"), to the holder of record of the shares to be
redeemed at such holder's address as the same appears
on the share register of the Corporation. Such notice
shall state: (a) the redemption date; (b) the
redemption price; (c) the number of shares subject to
redemption; and (d) the place or places where
certificates for such shares are to be surrendered for
payment of the redemption price.
(iii) Notice having been mailed as aforesaid, from and
after the redemption date (unless default shall be made
by the Corporation in providing money for the payment
of the redemption price of the shares called for
redemption) said shares shall no longer be deemed to be
outstanding and shall have the status of authorized but
unissued Series A Shares, and shall not be reissued as
Series A Shares, and all rights of the holder thereof
as a shareholder of the Corporation (except the right
to receive from the Corporation the redemption price)
shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the
Board of Directors of the Corporation shall so require
and the notice shall so state), such shares shall be
redeemed by the Corporation at the redemption price
aforesaid.
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3.3. Pursuant to this Paragraph THIRD of the Certificate of Incorporation
of the Corporation, there be and hereby is created a series of
Preferred Shares hereby designated as Series B Redeemable Preferred
Shares, to consist of one hundred sixty-five (165) shares having a
par value of $0.01 per share, which series shall have the voting
rights, designations, powers, preferences, relative and other special
rights, and qualifications, limitations and restrictions set forth
below:
3.3.1. DESIGNATION. The designation of the series of Preferred
Shares created hereby is Series B Redeemable Preferred Shares and the
number of shares constituting such series is one hundres sixty-five
(165) (the "Series B Shares").
3.3.2. RANK. The Series B Shares shall, with respect to
dividend rights, rights on redemption and rights on liquidation,
winding up and dissolution, rank prior to all classes of common shares
of the Corporation and to each other class of capital shares or series
of Preferred Shares of the Corporation hereafter created which does
not expressly provide that it ranks senior to or on a parity with the
Series B Shares. The Series B Shares shall, with respect to all such
Rights, be on a parity with the Series A Shares.
3.3.3. VOTING RIGHTS. Except as otherwise provided by law,
the holder of the Series B Shares shall not be entitled to vote on any
matters with the holders of other voting capital shares.
3.3.4. DIVIDENDS. Except as otherwise provided in this
Paragraph 3.3.4, the holder of the Series B Shares shall not be
entitled to receive dividends.
(a) GENERAL DIVIDEND OBLIGATIONS. When and as declared by the
Board of Directors of the Corporation, the Corporation shall
pay to the holders of the Series B Shares, out of the assets
of the Corporation available for such payment of dividends
under the New York Business Corporation Law, payable in
preference and priority to any payment of any dividend on
common shares of the Corporation, dividends at the times and
in the amounts provided in this Paragraph 3.3.4. The Board
of Directors of the Corporation shall declare and pay to the
holder of Series B Shares dividends at the Dividend Rate
described in Paragraph 3.3.4(c) below on a quarterly basis;
provided that the Board of Directors may in its discretion
postpone the declaration and payment of one or more
quarterly dividends so long as dividends are declared and
paid on at least an annual basis.
(b) CALCULATION OF DIVIDENDS. Dividends for each Series B
Share will be calculated cumulatively on a quarterly basis
at the rate
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and in the manner prescribed herein from and including the
"Commencement Date" with respect to such Series B Shares to,
but excluding, the date on which the Series B Shares are
redeemed or the Liquidation Price has been received with
respect to the Series B Shares, whether or not such
dividends have been declared and whether or not there are
(at the time such dividends are calculated or become payable
or at any other time) profits, surplus or other funds of the
Corporation legally available for the payment of dividends.
For the purposes of this Subparagraph 3.3.4(b), the
"Commencement Date" with respect to any Series B Share shall
be deemed to be the date of issuance regardless of the
number of times transfer of such Series B Share is made on
the share records maintained by or for the Corporation and
regardless of the number of certificates which may be issued
to evidence such Series B Share (whether by reason of
transfer of such Series B Share or for any other reason.)
(c) DIVIDEND RATE. Dividends payable on the Series B Shares
shall be calculated cumulatively with respect to each
quarter in which dividends are due on each Series B Share at
a rate of 10% of the Liquidation Value per annum ("Dividend
Rate"). To the extent not paid on the first day of each
January, April, July, and October (each a "Dividend
Reference Date"), an amount equal to all dividends which
have been calculated on Series B Shares then outstanding
during the quarterly period (pro rated for a shorter period
as appropriate) ending on the day immediately preceding such
Dividend Reference Date shall be added to the Redemption
Price (as described in Paragraph 3.3.7 hereof) of such
Series B Share and will remain a part thereof until (but
only until) such dividends are paid. Any subsequent
dividends which are paid to the holder of the Series B
Shares in respect thereof shall, in all instances, be
applied first to the payment of amounts of dividends which
have been added on previous Dividend Reference Dates to the
Redemption Price until the Redemption Price of all Series B
Shares shall be equal to the original Redemption Price, as
adjusted, herein stated.
(d) FORM OF PAYMENT. The Dividend Rate shall be payable
quarterly in cash or in common shares of the Corporation, as
determined by the holders of a majority of the outstanding
Series B Shares, by notice to the Corporation at least
thirty (30) days prior to the applicable Dividend Reference
Date. In the absence of such notice, it shall be presumed
that the dividend for the
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applicable quarter shall be payable in cash. In the event
that payment in the form of common shares is elected by the
holders of the Series B Shares, the number of common shares
issuable shall be determined by dividing the amount of the
dividend by the average Market Value (as hereinafter
defined) of the Corporation's common shares over the ten
consecutive trading days ending on the trading day
immediately prior to the Dividend Reference Date. "Market
Value" shall mean the average of the high and low prices of
the common shares, as reported in The Wall Street Journal,
on the American Stock Exchange (or a similar consolidated
transactions report for the exchange or other market on
which the common shares is then trading, if not the American
Stock Exchange) for the relevant date, or if no sales of
common shares were made on such exchange on such date, the
average of the high and low prices of such shares as
reported in such composite transaction report for the
preceding day on which sales of shares were made on such
exchange. If the common shares are not listed on a national
securities exchange at the time Market Value is to be
determined, then Market Value shall be determined by the
Board of Directors of the Corporation in good faith pursuant
to such method as the Board of Directors deems appropriate
and equitable. Under no circumstances shall the Market
Value of a common share be less than its par value. All
fractional shares shall be paid in cash. All unpaid cash
dividends shall be cumulative.
(e) PRIORITY. So long as any Series B Shares shall be
outstanding, without the consent of the holders of a
majority of the outstanding Series B Shares, the Corporation
shall not declare or pay on the common shares of the
Corporation any dividend whatsoever, whether in cash,
property or otherwise, nor shall the Corporation make any
distribution on the common shares, nor shall any common
shares be purchased or redeemed by the Corporation or any
subsidiary thereof, unless (1) all dividends to which the
holders of Series B Shares have been entitled for all
previous dividend periods shall have been paid or declared
and a sum of money sufficient for the payment thereof set
apart, and (2) all Series B Shares which the Corporation was
theretofore obligated to redeem in accordance with Paragraph
3.3.7 hereof shall have been redeemed.
3.3.5. LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of Series B Shares then outstanding shall
be entitled to be paid out of the assets of the Corporation available
for distribution to its shareholders an
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amount equal to one thousand dollars ($1,000.00) for each Series
B Share outstanding (such amount, as it may be adjusted from time to
time to give effect to any share splits or combinations,
recapitalizations or other similar events, the "Liquidation Value")
plus an amount equal to all accumulated but unpaid dividends thereon
to the date fixed for the liquidation, dissolution or winding up,
before any payment shall be made or any assets distributed to the
holders of common shares. Except as provided in the preceding
sentence, holders of Series B Shares shall not be entitled to any
distribution in the event of liquidation, dissolution or winding up of
the affairs of the Corporation. If the assets of the Corporation are
not sufficient to pay in full the liquidation payments payable to the
holders of the Series B Shares, then the holders of all such shares
shall share ratably in accordance with the respective amounts to which
the holders of outstanding Series B Shares would be entitled if all
amounts payable thereon were paid in full. The liquidation payment
with respect to each outstanding fractional Series B Share (if any)
shall be equal to a ratably proportionate amount of the liquidation
payment with respect to each outstanding Series B Share.
3.3.6. CONVERSION. The Series B Shares shall not be
convertible into or exchangeable for shares of any other series or
class of shares of the Corporation.
3.3.7. REDEMPTION. The Series B Shares shall be redeemable as
follows:
(a) OPTIONAL REDEMPTION. The Series B Shares shall be
redeemable, at the option of the Corporation, in whole or in
part, at any time without penalty, at a redemption price
equal to One Thousand Dollars ($1,000) per share (the
"Redemption Price") plus an amount equal to all accumulated
but unpaid dividends thereon to the date fixed for
redemption.
(b) MANDATORY REDEMPTION. The Series B Shares shall be
redeemed, out of funds legally available therefor, at the
Redemption Price plus an amount equal to all accumulated but
unpaid dividends thereon to the date fixed for redemption on
the following dates and in the following amounts:
(iv) All outstanding shares on or before September 30, 2000.
(c) REDEMPTION PROCEDURES. When the Corporation redeems the
Series B Shares, the following procedures shall apply:
(i) When less than all of the outstanding Series B Shares
are being redeemed, the shares subject to redemption
shall be determined in the sole discretion of the
Corporation.
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(ii) Notice of redemption shall be given by first class
mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the date on which Series B
Shares are to be redeemed (any such date, a "redemption
date"), to the holder of record of the shares to be
redeemed at such holder's address as the same appears
on the share register of the Corporation. Such notice
shall state: (a) the redemption date; (b) the
redemption price; (c) the number of shares subject to
redemption; and (d) the place or places where
certificates for such shares are to be surrendered for
payment of the redemption price.
(iii) Notice having been mailed as aforesaid, from and
after the redemption date (unless default shall be made
by the Corporation in providing money for the payment
of the redemption price of the shares called for
redemption) said shares shall no longer be deemed to be
outstanding and shall have the status of authorized but
unissued Series B Shares, and shall not be reissued as
Series B Shares, and all rights of the holder thereof
as a shareholder of the Corporation (except the right
to receive from the Corporation the redemption price)
shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the
Board of Directors of the Corporation shall so require
and the notice shall so state), such shares shall be
redeemed by the Corporation at the redemption price
aforesaid.
FOURTH: The office of the Corporation shall be located in the City of East
Syracuse, County of Onondaga, State of New York.
FIFTH: The Secretary of State of the State of New York is designated as
the agent of the Corporation upon whom process in any action or proceeding
against it may be served and the address to which the Secretary of State shall
mail a copy of process in any action or proceeding against the Corporation which
may be served upon it is 6315 Fly Road, East Syracuse, New York 13057.
SIXTH: The duration of the Corporation shall be perpetual.
SEVENTH: No Director shall be personally liable to the Corporation or any
of its shareholders for monetary damages for breach of duty as a Director,
except for liability if a judgment or other final adjudication adverse to such
Director establishes that such Director's acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that such
Director personally gained in fact a financial profit or other advantage to
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which such Director was not legally entitled or that such Director's acts
violated Section 719 of the New York Business Corporation Law. If the
Corporation hereafter may by law be permitted to further eliminate or limit the
personal liability of Directors, then pursuant hereto the liability of a
Director shall; at such time, automatically be further eliminated or limited to
the fullest extent permitted by law. Any repeal or modification of this Article
SEVENTH by the shareholders of the Corporation shall not adversely affect any
right or protection of a Director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
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