Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
COFFEE HOLDING CO., INC.
TABLE OF CONTENTS
Page
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ARTICLE I NAME.................................................................1
ARTICLE II REGISTERED OFFICE AND AGENT.........................................1
ARTICLE III PURPOSE............................................................1
ARTICLE IV CAPITAL STOCK.......................................................1
ARTICLE V BOARD OF DIRECTORS...................................................3
ARTICLE VI ACTION BY SHAREHOLDERS WITHOUT A MEETING............................5
ARTICLE VII CERTAIN BUSINESS COMBINATIONS......................................5
ARTICLE VIII LIMITATION OF DIRECTOR LIABILITY..................................7
ARTICLE IX INDEMNIFICATION.....................................................8
ARTICLE X AMENDMENTS..........................................................13
ARTICLE XI NOTICES............................................................14
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
COFFEE HOLDING CO., INC.
THE UNDERSIGNED, does hereby certify that these Amended and Restated
Articles of Incorporation of Coffee Holding Co., Inc. were duly adopted in
accordance with the provisions of Title 7, Chapter 78 of the Nevada Revised
Statutes, and further certifies as follows:
ARTICLE I
NAME
The name of the corporation is Coffee Holding Co., Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State of
Nevada is 502 East John Street, Room E, Carson City, Nevada 89706. The name of
its registered agent at such address is CSC Services of Nevada, Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Nevada Revised
Statutes.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Shares, Classes and Series Authorized. The total number of
shares of all classes of capital stock which the Corporation shall have
authority to issue is forty million (40,000,000) shares, of which ten million
(10,000,000) shares shall be preferred stock, par value $.001 per share (the
"Preferred Stock"), and thirty million (30,000,000) shares shall be common
stock, par value $.001 per share (the "Common Stock"). The Preferred Stock and
Common Stock are sometimes hereinafter collectively referred to as the "Capital
Stock."
SECTION 2. Designations, Powers, Preferences, Rights, Qualifications,
Limitations and Restrictions Relating to the Capital Stock. The following is a
statement of the designations, powers, preferences and rights in respect of the
classes of the Capital Stock, and the qualifications, limitations or
restrictions thereof, and of the authority with respect thereto expressly vested
in the Board of Directors of the Corporation (the "Board of Directors"):
(a) Preferred Stock. The Preferred Stock may be issued from time to
time in one or more series, the number of shares and any designation of each
series and the powers, preferences and rights of the shares of each series, and
the qualifications, limitations or restrictions thereof, to be as stated and
expressed in a resolution or resolutions providing for the issue of such series
adopted by the Board of Directors, subject to the limitations prescribed by law.
The Board of Directors in any such resolution or resolutions is expressly
authorized to state for each such series:
(i) the voting powers, if any, of the holders of stock of such
series in addition to any voting rights affirmatively required by law;
(ii) the rights of shareholders in respect of dividends,
including, without limitation, the rate or rates per annum and the time
or times at which (or the formula or other method pursuant to which
such rate or rates and such time or times may be determined) and
conditions upon which the holders of stock of such series shall be
entitled to receive dividends and other distributions, and whether any
such dividends shall be cumulative or non-cumulative and, if
cumulative, the terms upon which such dividends shall be cumulative;
(iii) whether the stock of each such series shall be
redeemable by the Corporation at the option of the Corporation, the
shareholders, or another person or upon the occurrence of a designated
event, and, if redeemable, the terms and conditions upon which the
stock of such series may be redeemed;
(iv) the amount payable and the rights or preferences to which
the holders of the stock of such series shall be entitled upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(v) the terms, if any, upon which shares of stock of such
series shall be convertible into, or exchangeable for, shares of stock
of any other class or classes or of any other series of the same or any
other class or classes, including the price or prices or the rate or
rates of conversion or exchange and the terms of adjustment, if any;
and
(vi) any other designations, preferences, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, so far as they are not
inconsistent with the provisions of these Amended and Restated Articles
of Incorporation and to the full extent now or hereafter permitted by
the laws of the State of Nevada.
All shares of the Preferred Stock of any one series shall be identical
to each other in all respects, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon, if
cumulative, shall be cumulative.
Subject to any limitations or restrictions stated in the resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting a series, the Board of Directors may by resolution or resolutions
likewise adopted increase (but not above the total number of authorized shares
of that class) or decrease (but not below the number of shares of the series
then outstanding) the number of shares of the series subsequent to the issue of
shares of that series; and in case the number of shares of any series shall be
so decreased, the shares constituting the decrease shall resume that status that
they had prior to the adoption of the resolution originally fixing the number of
shares constituting such series.
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(b) Common Stock. All shares of Common Stock shall be identical to each
other in every respect. The shares of Common Stock shall entitle the holders
thereof to one vote for each share on all matters on which shareholders have the
right to vote. The holders of Common Stock shall not be permitted to cumulate
their votes for the election of directors.
Subject to the preferences, privileges and powers with respect to each
class or series of Capital Stock having any priority over the Common Stock, and
the qualifications, limitations or restrictions thereof, the holders of the
Common Stock shall have and possess all rights pertaining to the Capital Stock.
No holder of shares of Common Stock shall be entitled as such, as a
matter of preemptive right, to subscribe for, purchase or otherwise acquire any
part of any new or additional issue of stock of any class or series whatsoever
of the Corporation, or of securities convertible into stock of any class or
series whatsoever of the Corporation, or of any warrants or other instruments
evidencing rights or options to subscribe for, purchase or otherwise acquire
such stock or securities, whether now or hereafter authorized or whether issued
for cash or other consideration or by way of dividend.
ARTICLE V
BOARD OF DIRECTORS
SECTION 1. NUMBER OF DIRECTORS. The number of directors of the
Corporation shall be as determined by the Bylaws of the Corporation or by a
majority vote of the Board of Directors. The number of directors of the
Corporation may be increased or decreased only by a majority vote of the Board
of Directors and the number of directors shall not be reduced to fewer than one
(1).
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SECTION 2. Classification of Board. Subject to the rights of any
holders of any series of Preferred Stock that may be issued by the Corporation
pursuant to a resolution or resolutions of the Board of Directors providing for
such issuance, the directors of the Corporation shall be divided into three
classes with respect to term of office, each class to contain, as near as may be
possible, one-third of the entire number of the Board, with the terms of office
of one class expiring each successive year. One class of directors shall be
initially elected for a term expiring at the annual meeting of shareholders to
be held in 2006, another class shall be initially elected for a term expiring at
the annual meeting of shareholders to be held in 2007 and another class shall be
initially elected for a term expiring at the annual meeting of shareholders to
be held in 2008. At each annual meeting of shareholders, the successors to the
class of directors (other than directors elected by holders of shares of one or
more series of Preferred Stock) whose term expires at that time shall be elected
by the shareholders to serve until the annual meeting of shareholders held three
years next following and until their successors shall be elected and qualified.
In the event of any intervening changes in the authorized number of
directors (other than directors elected by holders of shares of one or more
series of Preferred Stock), the Board of Directors shall designate the class or
classes to which the increases or decreases in directorships shall be
apportioned in order to achieve, as near as maybe possible, equality of the
number of directors among the classes; provided, however, that no such
apportionment or redesignation shall shorten the term of any incumbent director.
SECTION 3. Vacancies. Subject to the limitations prescribed by law and
these Amended and Restated Articles of Incorporation, all vacancies in the
office of director, including vacancies created by newly created directorships
resulting from an increase in the number of directors, shall be filled only by a
vote of a majority of the directors then holding office, whether or not a
quorum, and any director so elected shall serve for the remainder of the full
term of the class of directors in which the new directorship was created or the
vacancy occurred and until his or her successor shall be elected and qualified.
SECTION 4. Removal of Directors. Any or all of the directors may be
removed by the shareholders of the Corporation at any time, and any such removal
shall require the vote, in addition to any vote required by law, of not less
than eighty percent (80%) of the total votes eligible to be cast by the holders
of all outstanding shares of Capital Stock entitled to vote generally in the
election of directors at a meeting of shareholders expressly called for that
purpose.
SECTION 5. Evaluation of Acquisition Proposals. The Board of Directors
of the Corporation, when evaluating any offer to the Corporation or to the
shareholders of the Corporation from another party to (a) purchase for cash, or
exchange any securities or property for any outstanding equity securities of the
Corporation, (b) merge or consolidate the Corporation with another corporation,
or (c) purchase or otherwise acquire all or substantially all of the properties
and assets of the Corporation, 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, the long-term as well as short-term interests of the
Corporation and its stockholders, including the possibility that these interests
may be best served by the continued independence of the Corporation, the
financial and managerial resources and future prospects of the other party, the
possible effects on the business of the Corporation and its subsidiaries and on
the employees, customers, suppliers and creditors of the Corporation and its
subsidiaries, the economy of the state, region and nation and the effects on the
communities in which the Corporation's and its subsidiaries' facilities are
located.
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SECTION 6. Power to Call Special Meeting of Shareholders. Special
meetings of shareholders for any purpose may be called at any time only by
resolution of a majority of the directors of the Corporation then in office, by
resolution of a majority of the disinterested directors then in office, or upon
written application, by shareholders holding at least eighty percent (80%) of
the Capital Stock entitled to vote at the meeting.
ARTICLE VI
ACTION BY SHAREHOLDERS WITHOUT A MEETING
Shareholders may not authorize any corporate action or consent to any
action except at a special or annual meeting of shareholders. Shareholders are
expressly denied any right they may otherwise have to act by written consent
without a meeting.
ARTICLE VII
CERTAIN BUSINESS COMBINATIONS
Higher Vote Required for Certain Business Combinations. The approval of
the holders of at least eighty percent (80%) of the outstanding shares of voting
stock of the Corporation is required in connection with certain "Business
Combinations" with an Interested Stockholder after the expiration of three years
after the date the person becomes an Interested Stockholder, except in cases
where the proposed Business Combination has been approved in advance by a
majority of those members of the Board of Directors who are unaffiliated with
the Interested Stockholder and who were directors prior to the time when the
Interested Stockholder became and Interested Stockholder. In addition, the
Business Combination must also satisfy any one of the following requirements:
(1) the Business Combination is approved by the Corporation's Board of Directors
prior to the date that the person first became an Interested Stockholder; (2)
the transaction by which the Interested Stockholder became an Interested
Stockholder was approved by the Corporation's Board of Directors prior to the
date such shares were purchased; (3) the Business Combination is approved by the
affirmative vote of the holders of stock representing a majority of the
outstanding voting power not beneficially owned by the Interested Stockholder
proposing the Business Combination, at a meeting duly called for that purpose no
earlier than three years after the date that the person first became an
Interested Stockholder; or (4) the consideration to be received by all the
holders of outstanding stock not beneficially owned by the Interested
Stockholder equals or exceeds thresholds set forth by the Nevada Revised
Statutes.
(a) "Business Combination" means:
(1) Any merger or consolidation of the Corporation with the interested
stockholder, or any other corporation, which is, or after the merger or
consolidation would be, an affiliate or associate of the interested stockholder.
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(2) Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions, to or with the
interested stockholder or any affiliate or associate of the interested
stockholder of the Corporation's assets or any of the Corporation's
subsidiaries' assets:
(a) Having an aggregate market value equal to 5 percent or
more of the aggregate market value of all the Corporation's assets,
determined on a consolidated basis;
(b) Having an aggregate market value equal to 5 percent or
more of the aggregate market value of all the Corporation's outstanding
shares; or
(c) Representing 10 percent or more of the Corporation's
earning power or net income, determined on a consolidated basis.
(3) The issuance or transfer by the Corporation or any of the
Corporation's subsidiaries, in one transaction or a series of transactions, of
the Corporation's shares or any of the Corporation's subsidiaries' shares that
have an aggregate market value equal to 5 percent or more of the aggregate
market value of all the Corporation's outstanding shares to the interested
stockholder or any affiliate or associate of the interested stockholder except
under the exercise of warrants or rights to purchase shares offered, or a
dividend or distribution paid or made, pro rata to all the Corporation's
stockholders.
(4) The adoption of any plan or proposal for the Corporation's
liquidation or dissolution proposed by, or under any agreement, arrangement or
understanding, whether or not in writing, with, the interested stockholder or
any affiliate or associate of the interested stockholder.
(5) Any reclassification of securities, including, without limitation,
any splitting of shares, dividend distributed in shares, or other distribution
of shares with respect to other shares, or any issuance of new shares in
exchange for a proportionately greater number of old shares, recapitalization,
merger or consolidation of the Corporation with any of the Corporation's
subsidiaries, or other transaction, with the interested stockholder or any
affiliate or associate of the interested stockholder which has the effect,
directly or indirectly, of increasing the proportionate share of the outstanding
shares of the interested stockholder or any affiliate or associate of the
interested stockholder, except as a result of immaterial changes because of
adjustments of fractional shares.
(6) Any receipt by the interested stockholder or any affiliate or
associate of the interested stockholder of the benefit, directly or indirectly,
except proportionately as a stockholder, of any loan, advance, guarantee, pledge
or other financial assistance or any tax credit or other tax advantage provided
by or through the Corporation.
(b) "Interested stockholder," means any person, other than the
Corporation, who is:
(a) The beneficial owner, directly or indirectly, of 10 percent or
more of the voting power of the Corporation's outstanding voting
shares; or
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(b) An affiliate or associate of the Corporation and at any time
within 3 years immediately before the date in question was the
beneficial owner, directly or indirectly, of 10 percent or more of
the voting power of the Corporation's then outstanding shares.
SECTION 2. Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article VII shall be construed to relieve any
Interested Shareholder from any fiduciary obligations imposed by law.
SECTION 3. Amendment, Repeal, Etc. Notwithstanding any other provisions
of these Amended and Restated Articles of Incorporation or the Bylaws (and
notwithstanding the fact that a lesser percentage may be specified by law, these
Amended and Restated Articles of Incorporation or the Bylaws of the
Corporation), in addition to any affirmative vote required by applicable law and
any voting rights granted to or held by holders of Preferred Stock, any
amendment, alteration, repeal or rescission of any provision of this Article VII
must be approved by either (I) a majority of the authorized number of directors
and, if one or more Interested Shareholders exist, by a majority of the
Continuing Directors, or (ii) by the affirmative vote of not less than eighty
percent (80%) of the total number of votes eligible to be cast by the holders of
all outstanding shares of the Voting Stock, voting together as a single class,
together with the affirmative vote of not less than fifty percent (50%) of the
total number of votes eligible to be cast by the holders of all outstanding
shares of the Voting Stock not beneficially owned by any Interested Shareholder
or Affiliate or Associate thereof, voting together as a single class.
ARTICLE VIII
LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is expressly prohibited by the Nevada Revised Statutes as the
same exists or may hereafter be amended.
A director of the Corporation shall, in the performance of his or her
duties, be fully protected from liability in relying in good faith upon the
records of the corporation and upon such information, opinions, reports or
statements presented to the corporation by any of the corporation's officers or
employees, or committees of the board of directors, or by any other person as to
matters the director believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the corporation.
Any amendment, termination or repeal of this Article IX or any
provisions hereof shall not adversely affect or diminish in any way any right or
protection of a director of the Corporation existing with respect to any act or
omission occurring prior to the time of the final adoption of such amendment,
termination or repeal.
In addition to any requirements of law or of any other provisions of
these Amended and Restated Articles of Incorporation, the affirmative vote of
the holders of not less than eighty percent (80%) of the total number of votes
eligible to be cast by the holders of all outstanding shares of Capital Stock
entitled to vote thereon shall be required to amend, alter, rescind or repeal
any provision of this Article VIII.
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ARTICLE IX
INDEMNIFICATION
SECTION 1. Actions, Suits or Proceedings Other than by or in the Right
of the Corporation. To the fullest extent permitted by the Nevada Revised
Statutes, the Corporation shall indemnify any person who is or was or has agreed
to become a director or officer of the Corporation who was or is made a party to
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was or has agreed to become a director
or officer of the Corporation, or is or was serving or has agreed to serve at
the written request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in such
capacity, and the Corporation may indemnify any other person who is or was or
has agreed to become an employee or agent of the Corporation who was or is made
a party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was or has agreed to become an employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
written request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her or
on his or her behalf in connection with such action, suit or proceeding and any
appeal therefrom, if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in, or not opposed to, the best interests of
the Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
Notwithstanding anything contained in this Article IX, the Corporation shall not
be obligated to indemnify any director, officer, employee or agent in connection
with an action, suit or proceeding, or part thereof, initiated by such person
against the Corporation unless such action, suit or proceeding, or part thereof,
was authorized or consented to by the Board of Directors.
SECTION 2. Actions or Suits by or in the Right of the Corporation. To
the fullest extent permitted by the Nevada Revised Statutes, the Corporation
shall indemnify any person who is or was or has agreed to become a director or
officer of the Corporation who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he or she is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the written request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, and the
Corporation may indemnify any other person who is or was or has agreed to become
an employee or agent of the Corporation who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he or she is or was or has agreed to become an employee
or agent of the Corporation, or is or was serving or has agreed to serve at the
written request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection with the
defense or settlement of such action or suit and any appeal therefrom, if he or
she acted in good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the Corporation, except no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the court in which such action or suit was
brought or other court of competent jurisdiction shall determine upon
application that, despite the adjudication of such liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses as the Court deems proper.
Notwithstanding anything contained in this Article IV, the Corporation shall not
be obligated to indemnify any director, officer, employee or agent in connection
with an action or suit, or part thereof, initiated by such person against the
Corporation unless such action or suit, or part thereof, was authorized or
consented to by the Board of Directors.
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SECTION 3. Indemnification for Costs, Charges and Expenses of a
Successful Party. To the extent that a director, officer, employee or agent of
the Corporation has been successful, on the merits or otherwise (including,
without limitation, the dismissal of an action without prejudice), in defense of
any action, suit or proceeding referred to in Section 1 or 2 of this Article IX,
or in defense of any claim, issue or matter therein, such person shall be
indemnified against all costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by such person or on such person's behalf in
connection therewith.
SECTION 4. Indemnification for Expenses of a Witness. To the extent
that any person who is or was or has agreed to become a director or officer of
the Corporation is made a witness to any action, suit or proceeding to which he
or she is not a party by reason of the fact that he or she was, is or has agreed
to become a director or officer of the Corporation, or is or was serving or has
agreed to serve as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, at the
written request of the Corporation, such person shall be indemnified against all
costs, charges and expenses actually and reasonably incurred by such person or
on such person's behalf in connection therewith.
To the extent that any person who is or was or has agreed to become an
employee or agent of the Corporation is made a witness to any action, suit or
proceeding to which he or she is not a party by reason of the fact that he or
she was, is or has agreed to become an employee or agent of the Corporation, or
is or was serving or has agreed to serve as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, at the written request of the Corporation, such person may be
indemnified against all costs, charges and expenses actually and reasonably
incurred by such person or on such person's behalf in connection therewith.
SECTION 5. Determination of Right to Indemnification. Any
indemnification under Section 1 or 2 of this Article IX (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper under the circumstances because he or she has met the applicable
standard of conduct set forth in Section 1 or 2 of this Article IX. Any
indemnification under Section 4 of this Article IX (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper under the circumstances. At the election of the Board of Directors,
such determinations shall be made (a) by the Board of Directors acting by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if a quorum of disinterested directors so
directs or if such a quorum is not obtainable, by independent legal counsel in a
written opinion, or (c) by the shareholders. To obtain indemnification under
this Article IX, any person referred to in Section 1, 2, 3 or 4 of this Article
IX shall submit to the Corporation a written request, including therewith such
documents as are reasonably available to such person and are reasonably
necessary to determine whether and to what extent such person is entitled to
indemnification.
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SECTION 6. Advancement of Costs, Charges and Expenses. Costs, charges
and expenses (including attorneys' fees) incurred by or on behalf of a director
or officer in defending a civil or criminal action, suit or proceeding referred
to in Section 1 or 2 of this Article IX shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding; provided,
however, that the payment of such costs, charges and expenses incurred by or on
behalf of a director or officer in advance of the final disposition of such
action, suit or proceeding shall be made only upon receipt of a written
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized in
this Article IX or by law. No security shall be required for such undertaking
and such undertaking shall be accepted without reference to the recipient's
financial ability to make repayment. The majority of the directors who were not
parties to such action, suit or proceeding may, upon approval of such director
or officer of the Corporation, authorize the Corporation's counsel to represent
such person, in any action, suit or proceeding, whether or not the Corporation
is a party to such action, suit or proceeding.
SECTION 7. Procedure for Indemnification. Any indemnification under
Section 1, 2, 3 or 4 of this Article IX or advancement of costs, charges and
expenses under Section 6 of this Article IX shall be made promptly, and in any
event within sixty (60) days (except indemnification to be determined by
shareholders which will be determined at the next annual meeting of
shareholders), upon the written request of the director, officer, employee or
agent. The right to indemnification or advancement of expenses as granted by
this Article IX shall be enforceable by the director, officer, employee or agent
in any court of competent jurisdiction, if the Corporation denies such request,
in whole or in part, or if no disposition of such request is made within sixty
(60) days of the request. Such person's costs, charges and expenses incurred in
connection with successfully establishing his or her right to indemnification or
advancement, to the extent successful, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advancement of costs, charges
and expenses under Section 6 of this Article IX where the required undertaking,
if any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in Section 1 or 2 of this Article IX, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, its independent legal
counsel and its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in Section 1 or 2 of this Article IX, nor the fact that there has been
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel and its shareholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
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SECTION 8. Settlement. The Corporation shall not be obligated to
reimburse the costs, charges and expenses of any settlement to which it has not
agreed. If in any action, suit or proceeding (including any appeal) within the
scope of Section 1 or 2 of this Article IX, the person to be indemnified shall
have unreasonably failed to enter into a settlement thereof offered or assented
to by the opposing party or parties in such action, suit or proceeding, then,
notwithstanding any other provision of this Article IX, the indemnification
obligation of the Corporation to such person in connection with such action,
suit or proceeding shall not exceed the total of the amount at which settlement
could have been made and the expenses incurred by or on behalf of such person
prior to the time such settlement could reasonably have been effected.
SECTION 9. Other Rights; Continuation of Right to Indemnification;
Individual Contracts. The indemnification and advancement of costs, charges and
expenses provided by or granted pursuant to this Article IX shall not be deemed
exclusive of any other rights to which those persons seeking indemnification or
advancement of costs, charges and expenses may be entitled under law (common or
statutory) or any Bylaw, agreement, policy of indemnification insurance or vote
of shareholders or disinterested directors or otherwise, both as to action in
his or her official capacity and as to action in any other capacity while
holding office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
legatees, heirs, distributees, executors and administrators of such person.
Nothing contained in this Article IX shall be deemed to prohibit the Corporation
from entering into, and the Corporation is specifically authorized to enter
into, agreements with directors, officers, employees and agents providing
indemnification rights and procedures different from those set forth herein. All
rights to indemnification under this Article IX shall be deemed to be a contract
between the Corporation and each director, officer, employee or agent of the
Corporation who serves or served in such capacity (or at the written request of
the Corporation, in the capacity of director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise) at
any time while this Article IX is in effect.
SECTION 10. Savings Clause. If this Article IX or any portion shall be
invalidated on any ground by any court of competent jurisdiction, the
Corporation shall nevertheless indemnify each director or officer, and may
indemnify each employee or agent, of the Corporation as to any costs, charges,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (including an action by or in the
right of the Corporation), to the full extent permitted by any applicable
portion of this Article IX that shall not have been invalidated and to the full
extent permitted by applicable law.
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SECTION 11. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person who is or was a
director, officer, employee or agent of the Corporation or who is or was serving
at the written request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any costs, charges or expenses, liability or loss incurred
by such person in any such capacity, or arising out of his or her status as
such, whether or not the Corporation would have the power to indemnify such
person against such costs, charges or expenses, liability or loss under the
Amended and Restated Articles of Incorporation or applicable law; provided,
however, that such insurance is available on acceptable terms as determined by a
vote of a majority of the Board. To the extent that any director, officer,
employee or agent is reimbursed by an insurance company under an indemnification
insurance policy for any costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement to the fullest extent permitted
by any applicable portion of this Article IX, the Bylaws, any agreement, the
policy of indemnification insurance or otherwise, the Corporation shall not be
obligated to reimburse the person to be indemnified in connection with such
proceeding.
SECTION 12. Definitions. For purposes of this Article IX, the following
terms shall have the following meanings:
(a) "The Corporation" shall include any constituent corporation
(including any constituent of a constituent) absorbed by way of an acquisition,
consolidation, merger or otherwise, which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employee or agent so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the written request of such constituent corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article IX with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued;
(b) "Other enterprises" shall include employee benefit plans,
including, but not limited to, any employee benefit plan of the Corporation;
(c) "Director or officer" of the Corporation shall include any partner
or trustee who is or was or has agreed to serve at the written request of the
Corporation as a partner or trustee of another corporation, partnership, joint
venture, trust or other enterprise;
(d) "Serving at the written request of the Corporation" shall include
any service that imposes duties on, or involves services by a director, officer,
employee or agent of the Corporation with respect to an employee benefit plan,
its participants or beneficiaries, including acting as a fiduciary thereof;
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(e) "Fines" shall include any penalties and any excise or similar taxes
assessed on a person with respect to an employee benefit plan;
(f) A person shall be deemed to have acted in "good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful,"
if his or her action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him or her by
the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise; and
(g) A person shall be deemed to have acted in a manner "not opposed to
the best interests of the Corporation," as referred to in Sections 1 and 2 of
this Article IX if such person acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan.
SECTION 13. Subsequent Amendment and Subsequent Legislation. Neither
the amendment, termination or repeal of this Article IX or of relevant
provisions of the Nevada Revised Statutes or any other applicable laws, nor the
adoption of any provision of these Amended and Restated Articles of
Incorporation or the Bylaws of the Corporation or of any statute inconsistent
with this Article IX shall eliminate, affect or diminish in any way the rights
of any director, officer, employee or agent of the Corporation to
indemnification under the provisions of this Article IX with respect to any
action, suit or proceeding arising out of, or relating to, any actions,
transactions or facts occurring prior to the final adoption of such amendment,
termination or repeal.
If the Nevada Revised Statutes is amended to expand further the
indemnification permitted to directors, officers, employees or agents of the
Corporation, then the Corporation shall indemnify such persons to the fullest
extent permitted by the Nevada Revised Statutes, as so amended.
ARTICLE X
AMENDMENTS
SECTION 1. Amendments of Articles of Incorporation. In addition to any
affirmative vote required by applicable law and any voting rights granted to or
held by holders of Preferred Stock, any alteration, amendment, repeal or
rescission (collectively, any "Change") of any provision of these Amended and
Restated Articles of Incorporation must be approved by the affirmative vote of
the holders of at least eighty percent (80%) (or such greater proportion as may
otherwise be required pursuant to any specific provision of this Amended and
Restated Articles of Incorporation) of the total votes eligible to be cast by
the holders of all outstanding shares of Capital Stock entitled to vote thereon;
provided, however, that if a majority of the Board of Directors recommends the
Change, then such Change shall only require the affirmative vote of the holders
of a majority of the total votes eligible to be cast by the holders of all
outstanding shares of Capital Stock entitled to vote thereon. Subject to the
foregoing, the Corporation reserves the right to amend this Amended and Restated
Articles of Incorporation from time to time in any and as many respects as may
be desired and as may be lawfully contained in an original articles of
incorporation filed at the time of making such amendment.
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Except as may otherwise be provided in this Amended and Restated
Articles of Incorporation, the Corporation reserves the right at any time, and
from time to time, to amend, alter, change or repeal any provision contained in
these Amended and Restated Articles of Incorporation, and to add or insert
herein any other provisions authorized by the laws of the State of Nevada at the
time in force, in the manner now or hereafter prescribed by law, and all rights,
preferences and privileges of any nature conferred upon shareholders, directors
or any other persons whomsoever by and pursuant to these Amended and Restated
Articles of Incorporation in their present form or as hereafter amended are
granted subject to the rights reserved in this Section 1.
SECTION 2. Amendments of Bylaws. In furtherance and not in limitation
of the powers conferred by statute, the Board of Directors of the Corporation
may make, alter, amend, rescind or repeal from time to time any of the Bylaws of
the Corporation by the affirmative vote of the Board of Directors. Any Bylaw may
be altered, amended, rescinded, or repealed by the holders of 80% shares of
Capital Stock entitled to vote thereon at any annual meeting or at any special
meeting called for that purpose. Notwithstanding the foregoing, any provision of
the Bylaws that contains a supermajority voting requirement shall only be
altered, amended, rescinded, or repealed by a vote of the Board or holders of
shares of Capital Stock entitled to vote thereon that is not less than the
supermajority specified in such provision.
ARTICLE XI
NOTICES
The name and mailing address of the incorporator of this Corporation
is:
Coffee Holding Co., Inc.
Attention: Andrew Gordon, President and Chief Executive Officer
4401 First Avenue
Brooklyn, NY 11232-0005
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Coffee Holding Co., Inc. has caused these Amended and Restated Articles
of Incorporation to be signed by Andrew Gordon, President and Chief Executive
Officer of Coffee Holding Co., Inc., this 29th day of April, 2005, and the
Amended and Restated Articles have been approved by 81.8% of those entitled to
vote (3,259,600 out of 3,986,136 votes entitled to vote voted in favor of the
amendments).
COFFEE HOLDING CO., INC.
(Incorporator)
By: /s/ Andrew Gordon
-------------------------------------
Andrew Gordon
President and Chief Executive Officer
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