<PAGE> 1
As filed with the Securities and Exchange Commission on May 15, 1995.
Registration No. ___________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
RISER FOODS, INC.
-------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 34-1570363
-------------------------------------------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5300 RICHMOND ROAD, BEDFORD HEIGHTS, OHIO 44146
-------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
RISER FOODS, INC.
STOCK INCENTIVE PLAN FOR KEY EMPLOYEES
-------------------------------------------------------
(FULL TITLE OF THE PLAN)
S. LEE KOHRMAN, ESQ.
KOHRMAN JACKSON & KRANTZ
20TH FLOOR, ONE CLEVELAND CENTER
1375 EAST NINTH STREET
CLEVELAND, OHIO 44114
-------------------------------------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(216) 736-7216
-------------------------------------------------------
(TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
TITLE OF PROPOSED MAXIMUM AMOUNT
SECURITIES AMOUNT MAXIMUM AGGREGATE OF
TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
- ---------- ---------- --------------- ----------- ------------
<S> <C> <C> <C> <C>
Class A
Common Stock,
$.01 par value 226,500 $ 7.25 $ 1,642,125 $ 566.25
</TABLE>
===============================================================================
<PAGE> 2
<TABLE>
Registrant incorporates by reference the Registration Statement
on Form S-8 filed with the Securities and Exchange Commission on October 10,
1991, Registration Number 33-43245, including any amendment or reports filed
for the purpose of updating such descriptions.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cleveland, State of Ohio, on May 8, 1995.
RISER FOODS, INC.
By: /s/ Anthony C. Rego
-----------------------------
Anthony C. Rego
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Anthony C. Rego Chairman of the Board,
- -------------------------- Chief Executive
Anthony C. Rego Officer and Director May 8 , 1995
---
/s/ Charles A. Rini, Sr. President, Chief
- --------------------------- Operating Officer
Charles A. Rini, Sr. and Director May 5 , 1995
---
/s/ Ronald W. Ocasek Senior Vice President,
- -------------------------- Chief Financial Officer,
Ronald W. Ocasek Treasurer and Director May 5 , 1995
---
/s/ Charles A. Rego Senior Vice President and
- -------------------------- Director May 9 , 1995
Charles A. Rego ---
<PAGE> 3
<S> <C> <C>
/s/ Thomas A. Rego Senior Vice President,
- -------------------------- Secretary and Director May 5 , 1995
Thomas A. Rego ---
/s/ Charles A. Rini Director May 5 , 1995
- -------------------------- ---
Charles A. Rini
/s/ Charles A. Rini, Jr. Director May 5 , 1995
- -------------------------- ---
Charles A. Rini, Jr.
/s/ Anthony Rini Director May 5 , 1995
- -------------------------- ---
Anthony Rini
/s/ S. Lee Kohrman Director May 10, 1995
- -------------------------- ---
S. Lee Kohrman
/s/ Robert H. Kanner Director May 9 , 1995
- -------------------------- ---
Robert H. Kanner
Director May , 1995
- -------------------------- ---
William A. Miller
Director May , 1995
- -------------------------- ---
James A. Schlindwein
</TABLE>
<PAGE> 4
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ----------- --------
<S> <C> <C>
3.1 Second Restated Certificate of Incorporation
of the Registrant .......................... 5
3.2 By-Laws of the Registrant .................. 19
5 Opinion of Counsel ......................... 33
10.6(c)(1)* Riser Foods, Inc. Stock Incentive
Plan for Key Employees ..................... n/a
24.1** Consent of Counsel ......................... n/a
24.2 Consent of Independent Accountant .......... 35
<FN>
_____________________
* Incorporated by reference from the Registrant's Registration
Statement on Form S-4 (Registration No. 33-21392) as filed with
the Securities and Exchange Commission on April 21, 1988.
** Included in Exhibit 5 to this Registration Statement.
</TABLE>
<PAGE> 1
EXHIBIT 3.1
SECOND RESTATED
CERTIFICATE OF INCORPORATION
OF
RISER FOODS, INC.
Riser Foods, Inc., a corporation duly incorporated on December 18, 1987 and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
FIRST: That the Board of Directors of said corporation adopted a
resolution proposing and declaring advisable the following amendments to
and second restatement of the Certificate of Incorporation of said
corporation; and
SECOND: That this Second Restated Certificate of Incorporation was
duly adopted in accordance with the provisions of Sections 242, 245 and 228
of the General Corporation Law of the State of Delaware and that, effective
upon the filing of this Second Restated Certificate of Incorporation, the
certificate of incorporation of the corporation shall be amended and
restated as follows:
ARTICLE I
The name of this corporation (the "Corporation") is Riser Foods, Inc.
ARTICLE II
The registered office of the Corporation in the State of Delaware is
located at 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
The duration of the Corporation shall be perpetual.
ARTICLE IV
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE V
The name and mailing address of the incorporator is: T. L. Coles,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
ARTICLE VI
SECTION 1. Classes and Number of Shares. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is
25,030,000 shares. The classes and the aggregate number of shares of stock of
each class which the Corporation shall have authority to issue are as follows:
<PAGE> 2
(i) 20,000,000 shares of Class A Common Stock, $.01 par value per
share (hereinafter the "Class A Common Stock");
(ii) 5,000,000 shares of Class B Common Stock, $.01 par value per
share (hereinafter the "Class B Common Stock"); and
(iii) 30,000 shares of Preferred Stock, $100.00 par value per share,
with such rights, privileges, restrictions and preferences as the Board of
Directors may authorize from time to time pursuant to Section 3 of this
Article VI (hereinafter the "Preferred Stock").
SECTION 2. Powers and Rights of the Class A Common Stock and the Class B
Common Stock.
A. Voting Rights and Powers.
(i) Except as otherwise required by law or specifically provided by
this Second Restated Certificate of Incorporation, as amended from time to
time (the "Certificate of Incorporation") or resolutions providing for the
issue of Preferred Stock, holders of the Class A Common Stock and the Class
B Common Stock shall have the sole right and power to vote on all matters
on which a vote of shareholders is to be taken. With respect to all matters
upon which shareholders are entitled to vote, every holder of Class A
Common Stock shall be entitled to one vote in person or by proxy for each
share of Class A Common Stock standing in his name on the transfer books of
the Corporation, and every holder of Class B Common Stock shall be entitled
to ten votes in person or by proxy for each share of Class B Common Stock
standing in his name on the transfer books of the Corporation.
(ii) Except in the election of directors of the Corporation (voting in
respect of which shall be governed by the terms set forth in paragraphs A
(iii) and A (iv) of this Section 2) and as may be otherwise provided in the
by-laws or required by law, the holders of Class A Common Stock and Class B
Common Stock shall vote together as a single class, subject to any voting
rights which may be granted to holders of Preferred Stock; provided,
however, that the affirmative vote of the holders of at least 80% of the
outstanding shares of Class B Common Stock, voting separately as a class,
shall be required for (i) the authorization or issuance of any additional
shares of Class B Common Stock (except in connection with stock splits,
stock dividends, divisions and combinations of the Class B Common Stock)
and (ii) any amendment, alteration or repeal of any of the provisions of
this Certificate of Incorporation which adversely affects the powers,
privileges or rights of the Class B Common Stock (except with respect to
the designation of the terms of Preferred Stock or a series thereof by the
Board of Directors pursuant to Section 3 of this Article VI).
(iii) With respect to the election of directors, holders of the Class
A Common Stock shall vote as a separate class and be entitled to elect 25%
of the total number of directors constituting the whole Board of Directors
(the "Class A Directors") and, if such 25% is not a whole number, then the
holders of Class A Common Stock shall be entitled to elect the nearest
higher whole number of directors that is at least 25% of the total number
of directors. Holders of the Class B Common Stock, voting as a separate
class, shall be entitled to elect the remaining directors (the "Class B
Directors"). If, however, on the record date for any shareholder meeting at
which directors are to be elected, the outstanding shares of Class B Common
Stock have less than 12 1/2% of the total voting power of all outstanding
shares of the Corporation's Class A Common Stock and Class B Common Stock,
then the holders of Class A Common Stock, voting as a separate class, shall
continue to elect a number of Class A Directors equal to 25% of the total
number of directors constituting the whole Board of Directors (rounded
upward to the nearest whole number of directors) and, in addition, shall
vote together with the holders of Class B Common Stock to elect the
remaining directors to be elected at such meeting, with the holders of
Class A Common Stock entitled to one vote per share for all directors and
the holders of Class B Common Stock entitled to ten votes per share for all
directors.
2
<PAGE> 3
(iv) Any vacancy in the office of a director elected by the holders of
Class A Common Stock voting as a separate class may be filled by a vote of
such holders voting as a separate class, and any vacancy in the office of a
director elected by the holders of Class B Common Stock voting as a
separate class may be filled by a vote of such holders voting as a separate
class or, in the absence of a shareholder vote, in the case of a vacancy in
the office of a director elected by either class, such vacancy may be
filled by the vote of the remaining directors in the manner provided in the
By-laws. Any director elected by the Board of Directors to fill a vacancy
shall serve until the next annual meeting of shareholders and until his or
her successor has been elected and has qualified. If the number of
directors of the Board of Directors is increased in accordance with the
by-laws and applicable provisions of law, any vacancy so created may be
filled by the Board of Directors, provided that, so long as the holders of
Class A Common Stock have the rights provided in paragraphs A(iii) and
A(iv) of this Section 2 in respect of the last preceding annual meeting of
shareholders to elect 25% of the total number of directors constituting the
whole Board of Directors, the Board of Directors may be so enlarged by the
directors only to the extent that at least 25% of the enlarged board
consists of directors elected by the holders of Class A Common Stock or of
persons appointed to fill vacancies created by the death, resignation or
removal of persons elected by the holders of Class A Common Stock.
(v) Notwithstanding anything in this Section 2 to the contrary,
subject to the voting rights of the holders of any series of Preferred
Stock which may be outstanding, the holders of Class A Common Stock shall
have exclusive voting power on all matters upon which, pursuant to this
Certificate of Incorporation or applicable laws, the holders of common
stock are entitled to vote, at any time when no shares of Class B Common
Stock are issued and outstanding.
(vi) Wherever any provision of this Certificate of Incorporation sets
forth a specific percentage of the shares outstanding and entitled to vote
which is required for approval or ratification of any action upon which the
vote of the shareholders is required or may be obtained, such provision
shall mean such specified percentage of the votes entitled to be cast by
holders of shares then outstanding and entitled to vote on such action.
(vii) In this Certificate of Incorporation, (a) all references to
"voting" by the shareholders include all actions which shareholders may
take by voting at an annual or special shareholder meeting or adjournment
thereof and all actions which shareholders may take by written consent
without a shareholder meeting pursuant to the Delaware General Corporation
Law, this Certificate of Incorporation or the by-laws of the Corporation,
and (b) all references to the "record date for a shareholder meeting"
include the record date for determining the shareholders entitled to vote
at an annual or special shareholder meeting or adjournment thereof and to
consent to any action which may be taken by written consent without a
shareholder meeting.
(viii) In any merger, consolidation or business combination of the
Corporation with or into another corporation, whether or not the
Corporation is the surviving corporation, the consideration per share to be
received by holders of either Class A Common Stock or Class B Common Stock
in such merger, consolidation or business combination must be identical to
that received by holders of the other class of Common Stock. In any merger,
consolidation or business combination in which shares of capital stock are
distributed, such shares may differ as to voting rights or dividend rights
to the extent and only to the extent that the voting rights of the Class A
Common Stock and Class B Common Stock differ as provided herein.
B. Dividends and Distributions. Subject to the rights of the holders of
Preferred Stock, and subject to any other provisions of this Certificate of
Incorporation, holders of Class A Common Stock and Class B Common Stock shall be
entitled to such dividends and other distributions in cash, stock or property of
the Corporation as may be declared thereon by the Board of Directors
3
<PAGE> 4
from time to time out of assets or funds of the Corporation legally available
therefor; provided, however, that (i) in the case of dividends or other
distributions payable in stock of the Corporation other than the Preferred
Stock, including distributions pursuant to stock splits, divisions or
combinations (collectively "Stock Dividends"), only shares of Class A Common
Stock shall be distributed with respect to Class A Common Stock and only shares
of Class B Common Stock shall be distributed with respect to Class B Common
Stock; and (ii) the Board of Directors shall declare no dividend, and no
dividend shall be paid, with respect to any outstanding share of Class A Common
Stock or Class B Common Stock, whether paid in cash or property (including,
without limitation any Stock Dividend), unless, simultaneously, the same
dividend (in the case of Stock Dividends, stock of the class on or with respect
to which the dividend is paid in the same percentage, relative to the total
number of shares of such class issued and outstanding immediately prior to the
payment of such dividend, as the Stock Dividend on or with respect to the other
class bears to the number of shares of such class issued and outstanding
immediately prior to the payment of such dividend) is paid with respect to each
share of Class A Common Stock and Class B Common Stock.
C. Other Rights. Except as otherwise required by the Delaware General
Corporation Law or as otherwise provided in this Certificate of Incorporation,
each share of Class A Common Stock and each share of Class B Common Stock shall
have identical powers, preferences and rights, including rights in liquidation.
D. Transfer.
(i) No person holding shares of Class B Common Stock of record
(hereinafter called a "Class B Holder") may voluntarily or involuntarily
transfer, and the Corporation shall not register the transfer of, such
shares of Class B Common Stock, whether by sale, assignment, gift, bequest,
appointment, operation of law or otherwise, except as permitted by this
Paragraph D.
(ii) Any Class B Holder may transfer all or any part of such holder's
Class B Common Stock by gift, bequest or appointment, or distribution from
a trust or estate, to a "Permitted Transferee" of such Class B Holder. A
"Permitted Transferee" shall mean, with respect to each person from time to
time shown as the record holder of shares of Class B Common Stock:
(a) In the case of a Class B Holder who is a natural person,
(1) The spouse of such Class B Holder and any natural or adopted
child or grandchild of such Class B Holder;
(2) The trustee of a trust (whether testamentary or intervivos)
principally for the benefit of such Class B Holder and/or one or more
of his Permitted Transferees described in each subclause of this
clause (a) other than this subclause (2); and
(3) The estate created by the death of such Class B Holder.
(b) In the case of a Class B Holder holding the shares of Class B
Common Stock in question as trustee pursuant to a trust, "Permitted
Transferee" means (1) any person who transferred Class B Common Stock to
such trust, (2) any Permitted Transferee of any such transferor
determined pursuant to clause (a) above, and (3) any person who is a
Class B Holder or a Permitted Transferee of a Class B Holder determined
pursuant to clause (a), (b) and (c) of this Paragraph (D)(ii).
(c) In the case of a Class B Holder which is the estate of a
deceased Class B Holder which holds record and beneficial ownership of
the shares of Class B Common Stock in question, "Permitted Transferee"
means a Permitted Transferee of such deceased Class B Holder as
determined pursuant to clause (a) above.
4
<PAGE> 5
(iii) Any purported transfer of shares of Class B Common Stock not
permitted by Paragraph D(ii) above and which would violate any restriction
on transfer contained in the Class B Stockholders' Agreement dated April 7,
1988 by and among the Class B Holders and Riser (the "Class B Holders'
Agreement") shall be void, and the Corporation shall not register any such
purported transfer.
(iv) Any Class B Holder may transfer all or any part of such holder's
Class B Common Stock to any other Class B Holder who is not a Permitted
Transferee of the transferor, provided that if such transfer is subject to
any restrictions on transfer contained in the Class B Holders' Agreement,
then such transfer shall be permitted only if it complies with all such
restrictions set forth in the Class B Holders' Agreement.
(v) Any transfer of shares of Class B Common Stock permitted by the
Class B Holders' Agreement which is not made pursuant to Paragraph D(ii) or
Paragraph D(iv) above, at any time, shall result in the conversion of the
transferee's shares of Class B Common Stock into shares of Class A Common
Stock, effective the date on which certificates representing such shares
are presented for transfer on the books of the Corporation.
(vi) A majority of the Board of Directors of the Corporation shall
have the power and the duty to determine for purposes of this paragraph D,
on the basis of information known to them after reasonable inquiry, (a)
whether a person or entity is a Permitted Transferee or shall have ceased
to be a Permitted Transferee, (b) whether a person is a beneficial owner of
any shares of Class B Common Stock, and (c) whether a transfer shall have
occurred. Any Class B Holder shall upon demand furnish the Board of
Directors such affidavits, written information or other proof as the Board
deems necessary to make the determinations required of it pursuant to this
clause (iii), whether in connection with preparing a list of shareholders
entitled to vote at any meeting of shareholders, as a condition to the
transfer or the registration of shares of Class B Common Stock on the
Corporation's books, or otherwise.
(vii) Shares of Class B Common Stock shall be registered in the names
of the beneficial owners thereof and not in "street" or "nominee" names.
Notwithstanding the foregoing, trusts which are permitted to be Class B
Holders may transfer shares into nominee names. The Corporation shall note
on the certificates for shares of Class B Common Stock the restrictions on
transfer and registration of transfer imposed by this Paragraph D.
E. Conversion Rights.
(i) Subject to the terms and conditions of this Paragraph E,
commencing on June 1, 1989, each share of Class B Common Stock shall be
convertible, at any time or from time to time after June 1, 1989, at the
option of the holder thereof, at the office of any transfer agent for Class
B Common Stock, and at such other places, if any, as the Board of Directors
may designate, into one (1) fully-paid and nonassessable share of Class A
Common Stock. In order to convert Class B Common Stock into Class A Common
Stock, the holder thereof shall (a) surrender the certificate or
certificates for such Class B Common Stock at the office of said transfer
agent (or other place as provided above), which certificate or
certificates, if this Corporation shall so request, shall be duly endorsed
to the Corporation or in blank or accompanied by proper instruments of
transfer to the Corporation (such endorsements or instruments of transfer
to be in form satisfactory to the Corporation), and (b) give written notice
to the Corporation that such holder elects to convert said Class B Common
Stock, which notice shall state the name or names in which such holder
wishes the certificate or certificates for Class A Common Stock to be
issued. The Corporation will issue and deliver at the office of said
transfer agent (or other place as provided above) to the person for whose
account such Class B Common Stock was so surrendered, or to his nominee or
nominees, a certificate or certificates for the number of full shares of
Class A Common Stock to which such holder shall be entitled as soon as
practicable after such deposit of a certificate or certificates of Class B
Common Stock, accompanied by the requisite written notice. Such
5
<PAGE> 6
conversion shall be deemed to have been made as of the date of such
surrender of the Class B Common Stock to be converted; and the persons
entitled to receive the Class A Common Stock issuable upon conversion of
such Class B Common Stock shall be treated for all purposes as the record
holder or holders of such Class A Common Stock on such date.
(ii) The issuance of certificates for shares of Class A Common Stock
upon conversion of shares of Class B Common Stock shall be made without
charge for any stamp or other similar tax in respect of such issuance.
However, if any such certificate is to be issued in a name other than that
of the holder of the share or shares of Class B Common Stock converted, the
person or persons requesting the issuance thereof shall pay to the
Corporation the amount of any tax which may be payable in respect of any
transfer involved in such issuance or shall establish to the satisfaction
of the Corporation that such tax has been paid or is not required to be
paid.
(iii) The Corporation shall at all times reserve and keep available,
solely for the purpose of issue upon conversion of the outstanding shares
of Class B Common Stock, such number of shares of Class A Common Stock as
shall be issuable upon the conversion of all such outstanding shares.
SECTION 3. Preferred Stock.
A. Except as provided in Paragraphs E and F of this Section 3, the
Preferred Stock may be issued in one or more series and may be with such voting
powers, full or limited, or without voting powers, and with such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be fixed by the
Board of Directors pursuant to authority hereby expressly granted to it, and as
shall be stated and expressed in the resolution or resolutions providing for the
issue of such stock adopted by the Board of Directors pursuant to authority
expressly vested in it by these provisions.
B. Any Preferred Stock or series thereof may be made subject to redemption
at such time or times and at such price or prices as shall be stated and
expressed in the resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors as hereinabove provided.
C. The holders of Preferred Stock or of any series thereof shall be
entitled to receive dividends at such rates, on such conditions and at such
times as shall be stated and expressed in the resolution or resolutions
providing for the issue of such stock adopted by the Board of Directors as
hereinabove provided, payable in preference to, or in such relation to, the
dividends payable on any other class or classes of stock, and cumulative or
noncumulative as shall be so stated and expressed.
D. The holders of Preferred Stock or of any series thereof, shall be
entitled to such rights upon the dissolution of, or upon any distribution of the
assets of, the Corporation as shall be stated and expressed in the resolution or
resolutions providing for the issue of such stock adopted by the Board of
Directors as hereinabove provided.
E. Any Preferred Stock or any series thereof may be made convertible into,
or exchangeable for, shares of any other series of Preferred Stock or of any
other class or classes of stock, other than Class B Common Stock, of the
Corporation or any series thereof, or shares of any class or series of stock of
any other corporation, at such price or prices or at such rates of exchange and
with such adjustments as shall be stated and expressed in the resolution or
resolutions providing for the issue of such stock adopted by the Board of
Directors as hereinabove provided. In no event shall any Preferred Stock or any
series thereof be convertible into, or exchangeable for, shares of Class B
Common Stock of the Corporation.
F. Notwithstanding anything in this Certificate of Incorporation to the
contrary, no Preferred Stock shall be entitled to vote with the Class A Common
Stock with respect to any matter as to which the Class A Common Stock is
entitled, pursuant to the provisions of this Certificate
6
<PAGE> 7
of Incorporation, the By-laws or as may be otherwise required by law, to vote
separately as a class.
SECTION 4. Issuance of Class A Common Stock, Class B Common Stock and
Preferred Stock. The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all shares of the Class A Common
Stock, the Class B Common Stock and the Preferred Stock herein authorized in
accordance with the terms and conditions set forth in this Certificate of
Incorporation and the by-laws for such purposes, in such amounts, to such
persons, corporations, or entities, for such consideration, and in the case of
the Preferred Stock, in one or more series, all as the Board of Directors in its
discretion may determine and without any vote or other action by the
shareholders, except as otherwise provided in Paragraph A(ii) of Section 2 of
this Article VI and as otherwise required by law.
SECTION 5. Quorum at Shareholders' Meetings. At any meeting of
shareholders, the presence in person or by proxy of the holders of record of
outstanding shares of stock of the Corporation entitled to vote a majority of
the votes entitled to be voted at such meeting shall constitute a quorum for all
purposes, except as otherwise provided by this Certificate of Incorporation or
required by applicable law.
SECTION 6. No Pre-emptive Rights, Etc. No holder of shares of stock of the
Corporation of any class shall have any pre-emptive right and no shareholder
shall have any other preferential or right of first refusal to purchase or
subscribe for any shares of stock, whether now or hereafter authorized, of the
Corporation of any class, or any obligations convertible into, or any options or
warrants to purchase, any share of stock, whether now or hereafter authorized,
of the Corporation of any class, other than such, if any, as the Board of
Directors may from time to time determine, and at such price as the Board of
Directors may from time to time fix; and any share of stock or any obligations,
options or warrants which the Board of Directors may determine to offer for
subscription to holders of any shares of stock of the Corporation may, as the
Board of Directors shall determine, be offered to holders of shares of stock of
the Corporation of any class or classes or series, and if offered to holders of
shares of stock of more than one class or series, in such proportions as between
such classes and series as the Board of Directors may determine.
SECTION 7. Consents in Lieu of Voting. Whenever the vote of shareholders or
any class or classes of shareholders at a meeting thereof is required or
permitted to be taken for or in connection with any corporate action, the
meeting and vote of the shareholders of such class or classes of shareholders
may be dispensed with upon the written consent of the shareholders having not
less than such minimum percentage of the total number of votes as may otherwise
have been required for such actions. A notice of obtaining of any consent
provided for in this Section 7 shall be mailed by the Corporation, promptly
after such consent is obtained, to the shareholders at their respective
addresses then appearing on the records of the Corporation.
ARTICLE VII
SECTION 1. The following terms, when used in this Certificate of
Incorporation, shall have the respective meanings indicated in this Section 1:
An "Affiliate" of, or a person "Affiliated" with, a specified person, is an
"affiliate" of or is "affiliated" with the person specified within the meaning
of Rule 12b-2 under the Securities Exchange Act of 1934, as amended ("Exchange
Act").
The term "Associate" used to indicate a relationship with any person means
a person who is an "associate" of that person within the meaning of Rule 12b-2
under the Exchange Act.
The term "person" means both natural persons and legal entities.
The term "Group" means two or more persons who have agreed to act together
for the purpose of acquiring, holding, voting or disposing of any shares of the
Corporation.
7
<PAGE> 8
The term "Continuing Director" means a director of the Corporation who was
a director on December 19, 1987, and any person who subsequently becomes a
director of the Corporation if such person is appointed to be a director by a
majority of the persons who were Continuing Directors immediately prior to such
appointment (or by those of such Continuing Directors who are authorized to make
such appointment by the By-laws of the Corporation), or if such person's initial
nomination for election or initial election as a director is recommended or
approved by a majority of the persons who were Continuing Directors immediately
prior to such nomination or election (or by those of such Continuing Directors
who are authorized to make such nomination or approval by the By-laws of the
Corporation).
The term "Interested Shareholder" means any person or Group of persons
which beneficially owns, or together with its Affiliates and Associates
beneficially owns, more than 20%, or has beneficially owned more than 20% at any
time within the two-year period immediately preceding the time in question, of
the Corporation's outstanding voting power; provided, however, that the term
"Interested Shareholder" shall not include the Corporation, any Subsidiary, or
any of their respective employee benefit plans (or trustees or fiduciaries
thereof), any Continuing Director or Group that includes a Continuing Director,
or any Affiliate or Associate of a Continuing Director.
The term "Beneficial Owner", "beneficial ownership" and derivations thereof
shall have the same meaning given thereto under Rule 13d-3 under the Exchange
Act.
The term "Subsidiary" means an Affiliate controlled by the Corporation
directly or indirectly through one or more intermediaries.
The term "Stock Repurchase" means any repurchase, directly or indirectly,
by the Corporation or any Subsidiary of any shares of Class A Common Stock at a
price greater than the then Fair Market Value for such shares.
The term "Fair Market Value" means the closing price for the Class A Common
Stock on its principal trading market on the trading day immediately preceding
the day in question, or, absent such closing price or with respect to property
other than Class A Common Stock, the Fair Market Value of the Class A Common
Stock or other property determined in good faith by a majority of the Continuing
Directors. The term "closing price" on a trading day shall mean the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system of the
principal trading market. The term "principal trading market" means the American
Stock Exchange; or, if shares of Class A Common Stock are not listed or admitted
to trading on the American Stock Exchange, the principal national securities
exchange on which shares of Class A Common Stock are listed or admitted to
trading; or, if shares of Class A Common Stock are not listed or admitted to
trading on any national securities exchange, the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use; or, if shares of
Class A Common Stock are not quoted by any such organization, any professional
market maker making a market in the Class A Common Stock selected by the
Continuing Directors of the Corporation. The term "trading day" means a day on
which the principal trading market is open for the transaction of business.
SECTION 2. A Stock Repurchase shall be made from an Interested Shareholder
only after one of the following conditions has been satisfied:
(a) The Stock Repurchase has been approved by the affirmative vote of
the holders of shares having 80% of the then outstanding voting power of
the Corporation; or
(b) The Stock Repurchase is made as part of a tender or exchange
offer by the Corporation or any Subsidiary to purchase shares of Class A
Common Stock made on the same terms to all holders of Class A Common Stock
and complying with the Exchange Act and all rules thereunder then in
effect; or
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(c) The Stock Repurchase is made pursuant to an open market purchase
program by the Corporation or any Subsidiary, approved by a majority of the
Continuing Directors, provided that such purchase is effected on the open
market and is not the result of a privately negotiated transaction.
ARTICLE VIII
SECTION 1. The following terms, when used in this Certificate of
Incorporation, shall have the meanings indicated below:
The term "Business Transaction" means any of the following transactions:
(a) Any merger or consolidation of the Corporation or any Subsidiary
with an Interested Shareholder;
(b) Any sale, lease or other disposition of all or any Substantial
Portion of the assets or securities of the Corporation or a Subsidiary, to
or with an Interested Shareholder;
(c) The issuance of any security of an Interested Shareholder in
exchange for any security of the Corporation or any Subsidiary;
(d) The issuance of any security of the Corporation or a Subsidiary to
an Interested Shareholder, other than in connection with a dividend or
distribution pursuant to Section 2(B) of Article VI or a conversion of
Class B Common Stock to Class A Common Stock pursuant to Sections 2(D) or
2(E) of Article VI of this Certificate of Incorporation;
(e) Any recapitalization of the Corporation, the effect of which would
be to increase the relative voting power of an Interested Shareholder;
(f) The adoption of any plan for liquidation or dissolution of the
Corporation proposed by or on behalf of an Interested Shareholder; or
(g) Any agreement, contract or other arrangement providing for any one
or more of the actions specified in the foregoing clauses (a) to (f)
inclusive.
The term "Substantial Portion" of the assets of the Corporation or a
Subsidiary means a portion of the assets of the Corporation or the Subsidiary
having a Fair Market Value of one-third or more of the Fair Market Value of the
total assets of the Corporation or the Subsidiary.
SECTION 2. Any Business Transaction of the Corporation or a Subsidiary with
an Interested Shareholder shall be made only after one of the following
conditions is satisfied:
(a) The Business Transaction has been approved by the affirmative vote
of the holders of shares having 80% of the then outstanding voting power of
the Corporation; or
(b) The Business Transaction is a Stock Repurchase governed by the
provisions of Article VII hereof.
ARTICLE IX
The election of directors need not be by ballot unless the by-laws shall so
require.
ARTICLE X
In furtherance and not in limitation of the power conferred upon the board
of directors by law, the board of directors shall have the power to make, adopt,
alter, amend and repeal from time to time by-laws of this corporation, subject
to the right of the shareholders entitled to vote with respect thereto to alter
and repeal by-laws made by the board of directors.
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<PAGE> 10
ARTICLE XI
Any and all right, title, interest and claim in or to any dividends
declared by the Corporation which are unclaimed by the shareholder entitled
thereto for a period of six years after the close of business on the payment
date, shall be and is deemed to be extinguished and abandoned; and such
unclaimed dividends in the possession of the Corporation, its transfer agents or
other agents or depositories shall at such time become the absolute property of
the Corporation, free and clear of any and all claims of any persons whatsoever.
ARTICLE XII
A director of the Corporation shall not in the absence of fraud be
disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise, nor in the absence of fraud shall a
director of the Corporation be liable to account to the Corporation for any
profit realized by him from or through any transaction or contract of the
Corporation by reason of the fact that he, or any firm of which he is a member
or any corporation of which he is an officer, director or shareholder, was
interested in such transaction or contract if such transaction or contract has
been authorized, approved or ratified in the manner provided in the General
Corporation Law of the State of Delaware for authorization, approval or
ratification of transactions or contracts between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest.
ARTICLE XIII
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
shareholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or shareholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the shareholders or class of
shareholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
shareholders or class of shareholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the shareholders or class of
shareholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE XIV
No director of the Corporation shall have any personal liability to the
Corporation or any shareholder for monetary damages for a breach of fiduciary
duty as a director, except that this Article shall not eliminate or limit the
liability of each director (i) for any breach of the director's duty of loyalty
to the corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of Delaware,
as the same exists or hereafter may be amended, or (iv) for any transaction from
which the director derived an improper personal benefit. If the General
Corporation Law of the State of Delaware hereafter is
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<PAGE> 11
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in addition to
the limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended General Corporation Law of the State of
Delaware. Any repeal or modification of this Article XIV by the shareholders of
the Corporation or otherwise shall be prospective only, and shall not adversely
affect any limitation on the liability of a director of the Corporation existing
at the time of such repeal or modification.
ARTICLE XV
SECTION 1. Right to Indemnification. Each person who was or is a party or
is threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or any Subsidiary of the Corporation
(either before or after it became a Subsidiary of the Corporation) or is or was
serving at the request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans (a "director or
officer"), whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving as a
director or officer, shall be indemnified and held harmless by the Corporation
to the fullest extent authorized by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs, executors,
administrators and assignees; provided, however, that, except as provided in
Section 2 of this Article XV, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article XV shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition: provided,
however, that, if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article XV or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to any employees and agents of the Corporation with the same
scope and effect as the foregoing indemnification of directors and officers.
SECTION 2. Right of Claimant to Bring Suit. If a claim under paragraph 1 of
this Article XV is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the
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<PAGE> 12
standards of conduct which make it permissible under the General Corporation Law
of the State of Delaware for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or 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 the General Corporation Law of the
State of Delaware, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel, or 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.
SECTION 3. Non-Exclusivity of Rights. The rights conferred in this Article
XV to any person shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of this Certificate of
Incorporation, By-laws, agreement, or vote of the shareholders, Board of
Directors or disinterested directors or otherwise.
SECTION 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under this Article XV, the By-laws or the General Corporation
Law of the State of Delaware.
SECTION 5. Continuation of Indemnity. As used in this Certificate of
Incorporation, reference to "the Corporation" shall include, in addition to the
resulting or surviving corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors and officers, so that any person who is or was a
director or officer of such constituent corporation, or is or was serving at the
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 with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
SECTION 6. Severability. If this Certificate of Incorporation or any
portion hereof shall be invalidated or held to be unenforceable on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer of the Corporation as to 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 a grand jury proceeding and an action by the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated or held unenforceable or by any
other applicable law.
ARTICLE XVI
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon shareholders
herein are granted subject to this reservation.
ARTICLE XVII
The books of the Corporation may (subject to any statutory requirement) be
kept outside the State of Delaware as may be designated by the Board of
Directors or in the By-laws of this Corporation.
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IN WITNESS WHEREOF, Riser Foods, Inc. has caused this Restated Certificate
to be signed and attested by its duly authorized officers, this 18th day of
March, 1988.
RISER FOODS, INC.
By: /s/ Anthony C. Rego
-------------------------------
Anthony C. Rego,
Co-Chairman and Joint Chief
Executive Officer
By: /s/ Michael L. Borstein
--------------------------------
Michael L. Borstein,
Co-Chairman and Joint Chief
Executive Officer
Attest:
/s/ Kurt N. Schacht
- ------------------------------------
Kurt N. Schacht
Assistant Secretary
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<PAGE> 1
EXHIBIT 3.2
BY-LAWS
OF
RISER FOODS, INC.
SECTION 1. LAW, CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1 These by-laws are subject to the certificate of incorporation of the
corporation. In these by-laws, references to law, the certificate of
incorporation and by-laws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect.
SECTION 2. SHAREHOLDERS
2.1 Annual Meeting. The annual meeting of shareholders shall be held at
10:00 a.m. on the second Tuesday of November in each year (unless that day be a
legal holiday at the place where the meeting is to be held, in which case the
meeting shall be held at the same hour on the next succeeding day not a
Saturday, Sunday or legal holiday) or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect a board of directors and transact such
other business as may be required by law or these by-laws or as may properly
come before the meeting.
2.2 Special Meetings. Unless otherwise provided in the certificate of
incorporation, a special meeting of the shareholders may be called at any time
by the chairman of the board or a co-chairman of the board, if any, the
president or the secretary, or pursuant to a resolution of the board of
directors, or by shareholders who hold twenty-five percent (25%) of the voting
power of all shares of stock of all classes outstanding and voting as a single
class. A special meeting of the shareholders shall be called by the secretary,
or in the case of the death, absence, incapacity or refusal of the secretary, by
an assistant secretary or some other officer, upon application of the person or
persons entitled to call the meeting or as otherwise provided in the certificate
of incorporation. Any such application shall state the purpose or purposes of
the proposed meeting. Any such call shall state the place, date, hour, and
purposes of the meeting.
2.3 Place of Meeting. All meetings of the shareholders for the election of
directors or for any other purpose shall be held at such place within or without
the State of Delaware as may be determined from time to time by the chairman of
the board or both co-chairmen of the board, if any, the president or the board
of directors. Any adjourned session of any meeting of the shareholders shall be
held at the place of the session at which the adjournment was taken unless
another place is designated in the vote of adjournment.
2.4 Notice of Meetings. Except as otherwise provided by law, a written
notice of each meeting of shareholders stating the place, day and hour thereof
and, in the case of a special meeting, the purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
meeting, to each shareholder entitled to vote thereat, and to each shareholder
who, by law, by the certificate of incorporation or by these by-laws, is
entitled to notice, by leaving such notice with him or at his residence or usual
place of business, or by depositing it in the United States mail, postage
prepaid, and addressed to such shareholder at his address as it appears in the
records of the corporation. Such notice shall be given by the secretary, or by
an officer or person designated by the board of directors, or in the case of a
special meeting by the officer calling the meeting. As to any adjourned session
of any meeting of shareholders, notice of the adjourned meeting need not be
given if the time and place thereof are announced at the meeting at which the
adjournment was taken except that if the adjournment is for more than thirty
days or if after the adjournment a new record date is set for the adjourned
session, notice of any such adjourned session of the meeting shall be given in
the manner
<PAGE> 2
heretofore described. No notice of any meeting of shareholders or any adjourned
session thereof need be given to a shareholder if a written waiver of notice,
executed before or after the meeting or such adjourned session by such
shareholder, is filed with the records of the meeting or if the shareholder
attends such meeting without objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the shareholders or any adjourned session thereof need be specified
in any written waiver of notice.
2.5 Quorum of Shareholders. At any meeting of the shareholders, a quorum as
to any matter shall consist of a majority of the votes entitled to be cast on
the matter, except where a larger quorum is required by law, by the certificate
of incorporation or by these by-laws. Any meeting may be adjourned from time to
time by a majority of the votes properly cast upon the question, whether or not
a quorum is present. If a quorum is present at an original meeting, a quorum
need not be present at an adjourned session of that meeting. Shares of its own
stock belonging to the corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of any corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
2.6 Action by Vote. Unless otherwise provided in the certificate of
incorporation, when a quorum is present at any meeting, a plurality of the votes
properly cast for election to any office shall elect to such office and a
majority of the votes properly cast upon any question other than an election to
an office shall decide the question, except when a larger vote is required by
law, by the certificate of incorporation or by these by-laws. No ballot shall be
required for any election unless requested by a shareholder present or
represented at the meeting and entitled to vote in the election.
Except as may be otherwise required by law or the certificate of
incorporation, the shareholders shall not, without approval by the affirmative
vote of at least 80% of the total voting power of the outstanding shares of
stock of the corporation of all classes, voting as a single class:
(1) Increase or decrease the number of directors which shall
constitute the entire board of directors;
(2) Remove from the board of directors any director, except "for
cause" (as defined in Section 3.10 hereof); or
(3) Amend, modify or repeal, or adopt any provision inconsistent with,
any provision of this Section 2.6 or of Section 3, "BOARD OF DIRECTORS", of
these by-laws, or any provision of Article VI, Article VII or Article VIII
of the certificate of incorporation.
2.7 Action without Meetings. Unless otherwise provided in the certificate
of incorporation, any action required or permitted to be taken by shareholders
for or in connection with any corporate action may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted.
If action is taken by unanimous consent of shareholders, the writing or
writings comprising such unanimous consent shall be filed with the records of
the meetings of shareholders.
If action is taken by less than unanimous consent of shareholders and in
accordance with the foregoing, there shall be filed with the records of the
meetings of shareholders the writing or writings comprising such less than
unanimous consent. Prompt notice of the taking of the
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<PAGE> 3
corporate action without a meeting by less than unanimous written consent shall
be given to those who have not consented in writing and a certificate signed and
attested to by the secretary that such notice was given shall be filed with the
records of the meetings of shareholders.
In the event that the action which is consented to is such as would have
required the filing of a certificate under any of the provisions of the General
Corporation Law of Delaware, if such action had been voted upon by the
shareholders at a meeting thereof, the certificate filed under such provision
shall state that written consent has been given under Section 228 of said
General Corporation Law, in lieu of stating that the shareholders have voted
upon the corporate action in question, if such last mentioned statement is
required thereby.
2.8 Proxy Representation. Every shareholder may authorize another person or
persons to act for him by proxy in all matters in which a shareholder is
entitled to participate, whether by waiving notice of any meeting, objecting to
or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the shareholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. The authorization of a proxy may but need
not be limited to specified action, provided, however, that if a proxy limits
its authorization to a meeting or meetings of shareholders, unless otherwise
specifically provided such proxy shall entitle the holder thereof to vote at any
adjourned session but shall not be valid after the final adjournment thereof.
2.9 Inspectors. The directors or the person presiding at the meeting may,
but need not, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any,
shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. On request of the person presiding at
the meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them.
2.10 List of Stockholders. The secretary shall prepare and make, at least
ten days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each shareholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
shareholders entitled to examine such list or to vote in person or by proxy at
such meeting.
SECTION 3. BOARD OF DIRECTORS
3.1 Number. Subject to the provisions of the certificate of incorporation
from time to time in effect, the number of directors which shall constitute the
whole board shall be thirteen. The number of directors which shall constitute
the whole board may be increased or decreased at any time or from time to time
by the board of directors or the shareholders as provided in these by-laws. If
from time to time the holders of any outstanding preferred stock or series
thereof, pursuant to the terms of such preferred stock, receive the right to
elect one or more additional directors to the board due to any default by the
corporation in the payment of dividends thereon, the number of directors which
shall constitute the whole board shall increase by such
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<PAGE> 4
number, and if such right of the preferred shareholders shall terminate, the
number of directors shall reduce by such number. Directors need not be
shareholders. The shareholders at the annual meeting shall elect the number of
directors as determined in accordance with these by-laws.
3.2 Tenure. Except as otherwise provided by law, by the certificate of
incorporation or by these by-laws, each director shall hold office until the
next annual meeting and until his successor is elected and qualified, or until
he sooner dies, resigns, is removed or becomes disqualified.
3.3 Powers. The business and affairs of the corporation shall be managed by
or under the direction of the board of directors who shall have and may exercise
all the powers of the corporation and do all such lawful acts and things as are
not by law, the certificate of incorporation or these by-laws directed or
required to be exercised or done by the shareholders.
3.4 Nominations; Vacancies.
(a) For a period of three years after the "Effective Time" (as such term is
defined in the Prospectus included in the Registration Statement of Form S-4
which the corporation will file with the Securities and Exchange Commission, and
all amendments thereto), the board of directors of the corporation shall consist
of four Seaway Designees, four Rini Designees, three Rego Designees and two
Independent Designees. As of the Effective Time, the Seaway Designees shall be
Michael L. Borstein, Philip M. Sanson, David J. Lombardi and Brian K. Garson,
the Rini Designees shall be Charles A. Rini, Sr., Anthony Rini, Anthony J.
Collura, Jr. and S. Lee Kohrman, the Rego Designees shall be Anthony C. Rego,
Thomas A. Rego and Joseph E. Crimaldi, and the Independent Designees shall be
Robert H. Kanner and William G. Miller.
(b) For a period of three years after the Effective Time, vacancies created
by the death, resignation or removal of a director, if not filled by vote of the
shareholders, shall be filled as follows: a vacancy among the Seaway Designees
shall be filled by vote of a majority of the remaining Seaway Designees; a
vacancy among the Rini Designees shall be filled by vote of a majority of the
remaining Rini Designees; a vacancy among the Rego Designees shall be filled by
vote of a majority of the remaining Rego Designees; and a vacancy among the
Independent Designees shall be filled by not less than a 61% vote of the
remaining directors.
(c) For a period of three years after the Effective Time, in connection
with any election of directors at an annual or special meeting of shareholders
or by written consent of the shareholders, the corporation shall nominate
persons for election to the board of directors as follows: a majority of the
Seaway Designees then in office shall select four nominees to be the Seaway
Designees; a majority of the Rini Designees then in office shall select four
nominees to be the Rini Designees; a majority of the Rego Designees then in
office shall select three nominees to be the Rego Designees; and the nominees to
be the Independent Designees shall be selected by not less than a 61% vote of
the directors then in office.
(d) Except as provided in paragraph (b) of this Section, subject to the
provisions of the certificate of incorporation, vacancies and any newly created
directorships resulting from any increase in the number of directors may be
filled by vote of the shareholders at a meeting called for that purpose, or by
not less than a 61% vote of the directors then in office.
(e) Except as provided in paragraph (b) of this Section, subject to the
provisions of the certificate of incorporation, when one or more directors shall
resign from the board, effective at a future date, not less than 61% of the
directors then in office, including those who have resigned, shall have power to
fill such vacancy or vacancies, the vote or action by writing thereon to take
effect when such resignation or resignations shall become effective. The
directors shall have and may exercise all their powers notwithstanding the
existence of one or more vacancies in their number, subject to any requirements
of law or of the certificate of incorpora-
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tion or of these by-laws as to the number of directors required for a quorum or
for any vote or other actions or of these by-laws as to the number of directors
required.
3.5 Committees. The board of directors may, by vote of a majority of the
whole board, (a) designate, change the membership of or terminate the existence
of any committee or committees, each committee to consist of one or more of the
directors; (b) designate one or more directors as alternate members of any such
committee who may replace any absent or disqualified member at any meeting of
the committee; and (c) determine the extent to which each such committee shall
have and may exercise the powers of the board of directors in the management of
the business and affairs of the corporation, including the power to authorize
the seal of the corporation to be affixed to all papers which require it and the
power and authority to declare dividends or to authorize the issuance of stock;
excepting, however, such powers which by law, by the certificate of
incorporation or by these by-laws they are prohibited from so delegating. In the
absence or disqualification of any member of such committee and his alternate,
if any, the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member. Except as the board of
directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the board or such rules, its
business shall be conducted as nearly as may be in the same manner as is
provided by these by-laws for the conduct of business by the board of directors.
Each committee shall keep regular minutes of its meetings and report the same to
the board of directors upon request.
3.6 Regular Meetings. Regular meetings of the board of directors may be
held without call or notice at such places within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of shareholders.
3.7 Special Meetings. Special meetings of the board of directors may be
held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board or a co-chairman of the board, if any, the president, or by one-third or
more in number of the directors, reasonable notice thereof being given to each
director by the secretary or by the chairman of the board, if any, the president
or any one of the directors calling the meeting.
3.8 Notice. It shall be reasonable and sufficient notice to a director to
send notice by mail at least forty-eight hours or by telegram at least
twenty-four hours before the meeting addressed to him at his usual or last known
business or residence address or to give notice to him in person or by telephone
at least twenty-four hours before the meeting. Notice of a meeting need not be
given to any director if a written waiver of notice, executed by him before or
after the meeting, is filed with the records of the meeting, or to any director
who attends the meeting without protesting prior thereto or at its commencement
the lack of notice to him. Neither notice of a meeting nor a waiver of a notice
need specify the purposes of the meeting.
3.9 Quorum. Except as may be otherwise provided by law, by the certificate
of incorporation or by these by-laws, at any meeting of the directors, at least
61% of the directors then in office shall constitute a quorum. Any meeting may
be adjourned from time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
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3.10 Action by Vote. Except as may be otherwise provided by law, by the
certificate of incorporation or by these bylaws, when a quorum is present at any
meeting the vote of not less than 61% of the directors then in office shall be
the act of the board of directors.
For a period of three years after the Effective Time (as such term is
defined in the Prospectus included in the Registration Statement on Form S-4
which the corporation will file with the Securities and Exchange Commission, and
all amendments thereto), except as may be otherwise required by law or the
certificate of incorporation, the board of directors shall not, without approval
by the affirmative vote of not less than 76% of the directors then in office:
(1) Increase or decrease the number of directors which shall
constitute the entire board of directors;
(2) Remove from the board of directors any of the directors who are
not Independent Designees (the "Initial Directors"), except for cause;
(3) Terminate the employment of any of the executive officers of the
corporation as of the Effective Time (the "Initial Executive Officers"),
except for cause;
(4) Increase or decrease the salary, fringe benefits or other
compensation, or award any bonus, to any Initial Director or Initial
Executive Officer of the corporation;
(5) Authorize the issuance of any Class B Common Stock except in
connection with a Stock Dividend (as defined in the certificate of
incorporation); or
(6) Amend, modify or repeal, or adopt any provision inconsistent with,
any provision of this Section 3, "BOARD OF DIRECTORS," or of Section 2.6 of
these by-laws.
If the percentage of directors required by these by-laws to take any action
is not a whole number of directors, then the number of directors required to
take such action shall be the next highest whole number of directors in excess
of such percentage.
The board of directors may remove an Initial Director or terminate an
Initial Executive Officer "for cause" only if the board of directors reasonably
determines that (i) there has been on the part of such person gross negligence,
substantial and continuing non-performance or a substantial and continuing
inability to perform his duties to the corporation, (ii) such person has
committed an act of willful misconduct or fraud related to the performance of
his duties to the corporation; (iii) such person has commited a felony under any
federal or state law while serving as a director or executive officer of the
corporation, or (iv) such person is bankrupt or insolvent.
In the event the employment of an Initial Executive Officer is terminated
by the board of directors pursuant to this Section 3.10, other than for cause,
such person shall continue to receive the salary and other compensation which
such person was entitled to receive prior to such termination for the remainder
of the period ending three years after the Effective Time, as hereinabove
defined.
3.11 Action Without a Meeting. Any action required or permitted to be taken
at any meeting of the board of directors or a committee thereof may be taken
without a meeting if all the members of the board or of such committee, as the
case may be, consent thereto in writing, and such writing or writings are filed
with the records of the meetings of the board or of such committee. Such consent
shall be treated for all purposes as the act of the board or of such committee,
as the case may be.
3.12 Participation in Meetings by Conference Telephone. Members of the
board of directors, or any committee designated by such board, may participate
in a meeting of such board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other or by any other means permitted by law. Such
participation shall constitute presence in person at such meeting.
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3.13 Compensation. In the discretion of the board of directors, each
director may be paid such fees for his services as director and be reimbursed
for his reasonable expenses incurred in the performance of his duties as
director as the board of directors from time to time may determine. Nothing
contained in this section shall be construed to preclude any director from
serving the corporation in any other capacity and receiving reasonable
compensation therefor.
3.14 Interested Directors and Officers.
(a) No contract or transaction between the corporation and one or more of
its directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of the
corporation's directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the board of directors,
a committee thereof, or the shareholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
3.15 Director Liability, Indemnification and Insurance.
(a) Limitation of Liability of Directors. No director shall have any
personal liability to the corporation or any shareholder for monetary damages
for breach of fiduciary duty as a director, except that this Section shall not
eliminate or limit the liability of each director (i) for any breach of the
director's duty of loyalty to the corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware General Corporation Law. Any repeal or modification of this Section
shall be prospective only, and shall not adversely affect any limitation on the
liability of a director of the Corporation existing at the time of such repeal
or modification.
(b) Indemnification and Insurance.
(1) Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of
the fact that he or she, or a person of whom he or she is the legal
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<PAGE> 8
representative, is or was a director or officer of the Corporation or any
Subsidiary of the corporation (as defined in the certificate of
incorporation) (either before or after it became a Subsidiary of the
corporation) or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans (a "director or officer"), whether the basis of such
proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the corporation to provide
broader indemnification rights than said law permitted the corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of his or her heirs, executors,
administrators and assignees; provided, however, that, except as provided
in paragraph (b)(2) hereof, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the corporation. The right to
indemnification conferred in this Section shall be a contract right and
shall include the right to be paid by the corporation the expenses incurred
in defending any such proceeding in advance of its final disposition;
provided, however, that, if the Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in his or
her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding shall be made
only upon delivery to the corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to
be indemnified under this Section or otherwise. The corporation may, by
action of its board of directors, provide indemnification to any employees
and agents of the corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(2) Right of Claimant to Bring Suit. If a claim under paragraph (b)(l)
of this Section is not paid in full by the corporation within thirty (30)
days after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct which
make it permissible under the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the corporation (including its board of directors, independent
legal counsel, or 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 the Delaware General Corporation Law, nor
an actual determination by the corporation (including its board of
directors, independent legal counsel, or 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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(3) Non-Exclusivity of Rights. The rights conferred in this Section to
any person shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the certificate
of incorporation, by-law, agreement, or vote of the shareholders, board of
directors or disinterested directors or otherwise.
(4) Insurance. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or
not the corporation would have the power to indemnify such person against
such expense, liability or loss under this Section, the certificate of
incorporation or the Delaware General Corporation Law.
(5) Continuation of Indemnity. As used in these bylaws, reference to
"the corporation" shall include, in addition to the resulting or surviving
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify
its directors and officers, so that any person who is or was a director or
officer of such constituent corporation, or is or was serving at the
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 Section with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(6) Severability. If these by-laws or any portion hereof shall be
invalidated or held to be unenforceable on any ground by any court of
competent jurisdiction, then the corporation shall nevertheless indemnify
each director and officer of the corporation as to 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 a grand jury proceeding and an
action by the corporation, to the fullest extent permitted by any
applicable portion of this Section that shall not have been invalidated or
held unenforceable by any other applicable law.
SECTION 4. OFFICERS AND AGENTS
4.1 Enumeration; Qualification. The officers of the corporation shall be a
president, a treasurer, a secretary and such other officers, if any, as the
board of directors from time to time may in its discretion elect or appoint
including without limitation one or more co-chairmen of the board, one or more
vice presidents and a controller. The corporation may also have such agents, if
any, as the board of directors from time to time may in its discretion choose.
Any officer may be but none need be a director or shareholder. Any two or more
offices may be held by the same person. Any officer may be required by the board
of directors to secure the faithful performance of his duties to the corporation
by giving bond in such amount and with sureties or otherwise as the board of
directors may determine.
4.2 Powers. Subject to law, to the certificate of incorporation and to the
other provisions of these by-laws, each officer shall have, in addition to the
duties and powers herein set forth, such duties and powers as are commonly
incident to his office and such additional duties and powers as the board of
directors may from time to time designate.
4.3 Elections. The officers may be elected by the board of directors at
their first meeting following the annual meeting of the shareholders or at any
other time. At any time or from time to time the directors may delegate to any
officer their power to elect or appoint any other officer or any agents.
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4.4 Tenure. Each officer shall hold office until the first meeting of the
board of directors following the next annual meeting of the shareholders and
until his respective successor is chosen and qualified unless a shorter period
shall have been specified by the terms of his election or appointment, or in
each case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
4.5 Chairman of the Board of Directors, President and Vice President. The
chairman of the board or a co-chairman of the board, if any, shall have such
duties and powers as shall be designated from time to time by the board of
directors. Unless the board of directors otherwise specifies, the chairman of
the board or a co-chairman of the board, or if there is none the chief operating
officer, shall preside, or designate the person who shall preside, at all
meetings of the shareholders and of the board of directors.
Unless the board of directors otherwise specifies, the president shall be
the chief operating officer and shall have direct charge of all business
operations of the corporation and, subject to the control of the directors,
shall have general charge and supervision of the business of the corporation.
Any vice presidents shall have such duties and powers as shall be set forth
in these by-laws or as shall be designated from time to time by the board of
directors or by the president.
4.6 Treasurer and Assistant Treasurers. The treasurer shall be the chief
financial officer of the corporation and shall be in charge of its funds and
valuable papers, and shall have such other duties and powers as may be
designated from time to time by the board of directors or by the president. If
no controller is elected, the treasurer shall also have the duties and powers of
the controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
treasurer.
4.7 Controller and Assistant Controllers. If a controller is elected, he
shall be the chief accounting officer of the corporation and shall be in charge
of its books of account and accounting records, and of its accounting
procedures. He shall have such other duties and powers as may be designated from
time to time by the board of directors, the president or the treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the board of directors, the president, the
treasurer or the controller.
4.8 Secretary and Assistant Secretaries. The secretary shall record all
proceedings of the shareholders, of the board of directors and of committees of
the board of directors in a book or series of books to be kept therefor and
shall file therein all actions by written consent of shareholders or directors.
In the absence of the secretary from any meeting, an assistant secretary, or if
there be none or he is absent, a temporary secretary chosen at the meeting,
shall record the proceedings thereof. Unless a transfer agent has been appointed
the secretary shall keep or cause to be kept the stock and transfer records of
the corporation, which shall contain the names and record addresses of all
shareholders and the number of shares registered in the name of each
shareholder. He shall have such other duties and powers as may from time to time
be designated by the board of directors or the president.
Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
secretary.
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SECTION 5. RESIGNATIONS AND REMOVALS
5.1 Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, if any, the president, or
the secretary or to a meeting of the board of directors. Such resignation shall
be effective upon receipt unless specified to be effective at some other time,
and without in either case the necessity of its being accepted unless the
resignation shall so state. A director may be removed from office as provided in
these by-laws. Except as otherwise required by these by-laws, the board of
directors may at any time remove any officer either with or without cause.
Except as otherwise required by these by-laws, the board of directors may at any
time terminate or modify the authority of any agent. Except as otherwise
required by these by-laws, no director or officer resigning and (except where a
right to receive compensation shall be expressly provided in a duly authorized
written agreement with the corporation) no director or officer removed shall
have any right to any compensation as such director or officer for any period
following his resignation or removal, or any right to damages on account of such
removal, whether his compensation be by the month or by the year or otherwise;
unless, in the case of a resignation, the directors, or, in the case of removal,
the body acting on the removal, shall in their or its discretion provide for
compensation.
SECTION 6. VACANCIES
6.1 If the office of the president, the treasurer or the secretary becomes
vacant, the directors may elect a successor by a vote as provided by these
by-laws. If the office of any other officer becomes vacant, any person or body
empowered to elect or appoint that officer may choose a successor. Each such
successor shall hold office for the unexpired term, and in the case of the
president, the treasurer and the secretary until his successor is chosen and
qualified or in each case until he sooner dies, resigns, is removed or becomes
disqualified. Any vacancy of a directorship shall be filled as specified in
Section 3.4 of these by-laws.
SECTION 7. CAPITAL STOCK
7.1 Stock Certificates. Each shareholder shall be entitled to a certificate
stating the number and the class and the designation of the series, if any, of
the shares held by him, in such form as shall, in conformity to law, the
certificate of incorporation and the by-laws, be prescribed from time to time by
the board of directors. Such certificate shall be signed by the chairman or vice
chairman of the board, if any, or the president or a vice president and by the
treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of or all the signatures on the certificate may be a facsimile.
In case an officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed on such certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent, or registrar at the time of its issue.
7.2 Loss of Certificates. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof, as
the board of directors may prescribe.
SECTION 8. TRANSFER OF SHARES OF STOCK
8.1 Transfer on Books. Subject to the restrictions, if any, stated or noted
on the stock certificate, shares of stock may be transferred on the books of the
corporation by the surrender to the corporation or its transfer agent of the
certificate therefor properly endorsed or accompanied by a written assignment
and power of attorney properly executed, with necessary transfer stamps affixed,
and with such proof of the authenticity of signature as the board of directors
or the transfer agent of the corporation may reasonably require. Except as may
be otherwise required by law, by the certificate of incorporation or by these
by-laws, the corpora-
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tion shall be entitled to treat the record holder of stock as shown on its books
as the owner of such stock for all purposes, including the payment of dividends
and the right to receive notice and to vote or to give any consent with respect
thereto and to be held liable for such calls and assessments, if any, as may
lawfully be made thereon, regardless of any transfer, pledge or other
disposition of such stock until the shares have been properly transferred on the
books of the corporation.
It shall be the duty of each shareholder to notify the corporation of his
post office address.
8.2 Record Date and Closing Transfer Books. In order that the corporation
may determine the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty days nor less than
ten days (or such longer period as may be required by law) before the date of
such meeting, nor more than sixty days prior to any other action.
If no record date is fixed:
(a) The record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
(b) The record date for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
(c) The record date for determining shareholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
SECTION 9. CORPORATE SEAL
9.1 Subject to alteration by the directors, the seal of the corporation
shall consist of a flat-faced circular die with the word "Delaware" and the name
of the corporation cut or engraved thereon, together with such other words,
dates or images as may be approved from time to time by the directors.
SECTION 10. EXECUTION OF PAPERS
10.1 Except as the board of directors may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts or other obligations made,
accepted or endorsed by the corporation shall be signed by the chairman of the
board or any co-chairman of the board, if any, the president, a vice president
or the treasurer.
SECTION 11. FISCAL YEAR
11.1 The fiscal year of the corporation shall end on the 30th day of June
in each year.
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SECTION 12. AMENDMENTS
12.1 These by-laws may be adopted, amended or repealed by the board of
directors or by vote of the shareholders as provided in these by-laws. Subject
to the previous sentence, any by-law, whether adopted, amended or repealed by
the shareholders or directors, may be amended or reinstated by the shareholders
or the directors.
SECTION 13. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
13.1 Section 203 of the General Corporation Law of Delaware does not apply
to "business combinations with interested stockholders" of the corporation; for
the purpose of this section, the definition of the term "business combinations
with interested stockholders" is found in Section 203 of the General Corporation
Law of Delaware.
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EXHIBIT 5
KOHRMAN JACKSON & KRANTZ
ATTORNEYS AT LAW
20th FLOOR, ONE CLEVELAND CENTER
CLEVELAND, OHIO 44114
------
216-696-8700
TELECOPIER
216-621-6536
May 9, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8 of Riser Foods, Inc.
Gentlemen:
We have acted as counsel for Riser Fods, Inc. (the "Company") in
connection with the filing with the Securities and Exchange Commission of the
Registration Statement on Form S-8, including the exhibits thereto (the
"Registration Statement"), relating to the registration under the Securities
Act of 1933, as amended, of 226,500 shares of the Company's Class A Common
Stock, $.01 par value (the "Shares").
As counsel for the Company, we have examined the Registration Statement
and such other documents as we have deemed necessary to examine as a basis for
rendering our opinion.
Based upon the foregoing, we are of the opinion that:
(a) The Company has been incorporated and is validly existing as a
corporation under the laws of the State of Delaware.
(b) The Shares have been duly authorized and, when (1) the pertinent
provisions of the Securities Act of 1933, as amended, and of such securities
laws of such jurisdiction as may be applicable, have been complied with, and
(2) the Shares have been duly delivered against payment therefor in accordance
with the terms of the Riser Foods, Inc. Stock Incentive Plan for Key Emplyees,
the Shares will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
KOHRMAN JACKSON & KRANTZ
F:\CORP\6000\6045\53.PAM
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EXHIBIT 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As indpendent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated September 12, 1994
included in Riser Food, Inc.'s Form 10-K for the year ended July 2, 1994 and to
all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Cleveland, Ohio,
May 10, 1995
