SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
FORM 10-Q/A
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
_________________________________________________________________
For Quarter Ended Commission File Number 0-17536
June 30, 1998
SEVENSON ENVIRONMENTAL SERVICES, INC.
_____________________________________
(Exact name of registrant as specified in its charter)
New York 16-1091535
______________________________ ____________________
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
2749 Lockport Road
P.O. Box 396
Niagara Falls, NY 14302-0396
______________________________
(Address of principal executive offices)
(716) 284-0431
____________________________
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
Number of common shares outstanding as of the close of the period
covered by this report: 2,619,689 shares of Common Stock and
7,438,600 shares of Class B Common Stock
<PAGE>
PART II
OTHER INFORMATION
Item 2 CHANGES IN SECURITIES
Effective May 19, 1998, the Company changed its state of
incorporation from Delaware to New York ("Reincorporation"). The
reincorporation was accomplished through a merger ("Merger") of
Sevenson Environmental Services, Inc., a Delaware Corporation
("Sevenson-Delaware") into its wholly-owned subsidiary, Sevenson
Environmental Services of New York, Inc., a New York corporation
("Sevenson-New York"). As a result of the Merger, each
outstanding share of Sevenson-Delaware Common Stock, par value
$.10 per share was automatically converted into one share of
Sevenson-New York Common Stock, par value $.01 per share and each
outstanding share of Sevenson-Delaware Class B Common Stock, par
value $.10 per share was automatically converted into one share
of Sevenson-New York Class B Common Stock, par value $.01 per
share. Except with respect to the change in par value, the
Common Stock and Class B Common Stock of Sevenson-New York are
identical to the Common Stock and Class B Common Stock of
Sevenson-Delaware. The Reincorporation and Merger do not result
in any change in the name, business, management, location of the
Company's principal executive offices, assets, liabilities, net
worth or accounting practices. The Reincorporation was approved
by the Company's shareholders at the annual meeting of
shareholders on May 19, 1998.
Item 6 EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
2 Plan of Merger of Sevenson Environmental Services,
Inc. (a Delaware corporation) and Sevenson
Environmental Services of New York, Inc. (a New
York corporation).
3(a) Certificate of Incorporation.
3(b) By-laws.
(b) Reports on Form 8-K: None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
SEVENSON ENVIRONMENTAL SERVICES INC.
(Registrant)
Date: October 22, 1998
By /s/William J. McDermott
William J. McDermott
Vice President, Secretary and
Chief Financial Officer
<PAGE>
PLAN OF MERGER Exhibit 2
OF
SEVENSON ENVIRONMENTAL SERVICES, INC.
(a Delaware corporation)
AND
SEVENSON ENVIRONMENTAL SERVICES OF NEW YORK, INC.
(a New York corporation)
THIS PLAN OF MERGER dated as of March 17, 1998 (the "Plan")
is between Sevenson Environmental Services, Inc., a Delaware
corporation ("Sevenson-Delaware"), and Sevenson Environmental
Services of New York, Inc., a New York corporation ("Sevenson-New
York"). Sevenson-Delaware and Sevenson-New York are sometimes
referred to herein as the "Constituent Corporations."
RECITALS
A. Sevenson-Delaware is a corporation duly organized
and existing under the laws of the State of Delaware and has an
authorized capital of 21,000,000 shares, 12,000,000 of which are
designated "Common Stock," par value $.10 per share, 8,000,000 of
which are designated "Class B Common Stock," par value $.10 per
share and 1,000,000 of which are designated "Preferred Stock,"
par value $.10 per share. The Preferred Stock of Sevenson-
Delaware is undesignated as to series, powers, designations,
preferences, rights, and restrictions. As of the date hereof,
2,640,785 shares of Common Stock and 7,486,440 shares of Class B
Common Stock were issued and outstanding, and no shares of
Preferred Stock were issued and outstanding.
B. Sevenson-New York is a corporation duly organized
and existing under the laws of the State of New York and has an
authorized capital of 21,000,000 shares, 12,000,000 of which are
designated "Common Stock," par value $.01 per share, 8,000,000 of
which are designated "Class B Common Stock", par value $.01 per
share, and 1,000,000 of which are designated "Preferred Stock,"
par value $.01 per share. The Preferred Stock of Sevenson-New
York is undesignated as to series, rights, preferences and
limitations. As of the date hereof, 1998, 1 share of Common
Stock, which is held by Sevenson-Delaware, and no shares of Class
B Common Stock or Preferred Stock were issued and outstanding.
C. The Board of Directors of Sevenson-Delaware has
determined that, for the purpose of effecting the reincorporation
of Sevenson-Delaware in the State of New York, it is advisable
and in the best interest of Sevenson-Delaware and its
stockholders that Sevenson-Delaware merge with and into Sevenson-
New York upon the terms and conditions herein provided.
D. The Board of Directors of Sevenson-Delaware has
approved this Plan and has directed that this Plan be submitted
to a vote of its stockholders and executed by the undersigned
officers.
<PAGE>
NOW, THEREFORE, Sevenson-Delaware hereby adopts this
Plan subject to the terms and conditions hereinafter set forth.
I. MERGER
1.1 Merger. In accordance with the provisions of
this Plan , the Delaware General Corporation Law and the New York
Business Corporation Law, Sevenson-Delaware shall be merged with
and into Sevenson-New York (the "Merger"), the separate existence
of Sevenson-Delaware shall cease and Sevenson-New York shall
survive the Merger and shall continue to be governed by the laws
of the State of New York. Sevenson-New York shall be, and is
herein sometimes referred to as, the "Surviving Corporation."
Upon completion of the Merger, the name of the Surviving
Corporation shall be changed to "Sevenson Environmental
Services, Inc."
1.2 Filing and Effectiveness. The Merger shall become
effective when the following actions shall have been completed:
(a) This Plan shall have been adopted and approved by
the stockholders of Sevenson-Delaware in accordance with the
requirements of the Delaware General Corporation Law and the New
York Business Corporation Law;
(b) An executed Certificate of Ownership and Merger
meeting the requirements of the Delaware General Corporation Law
shall have been filed with the Secretary of State of the State of
Delaware; and
(c) An executed Certificate of Merger meeting the
requirements of the New York Business Corporation Law shall have
been filed with the Department of State of the State of New York.
The date and time when the Merger shall become
effective, as aforesaid, is herein called the "Effective Date of
the Merger."
1.3 Effect of the Merger. Upon the Effective Date of
the Merger, the separate existence of Sevenson-Delaware shall
cease and Sevenson-New York, as the Surviving Corporation: (i)
shall continue to possess all of its assets, rights, powers and
property as constituted immediately prior to the Effective Date
of the Merger, (ii) shall succeed, without other transfer, to all
of the assets, rights, powers and property of Sevenson-Delaware,
(iii) shall continue to be subject to all of the debts,
liabilities and obligations of Sevenson-New York as constituted
immediately prior to the Effective Date of the Merger, (iv) shall
succeed, without other transfer, to all of the debts, liabilities
and obligations of Sevenson-Delaware in the same manner as if
Sevenson-New York had itself incurred them, and (v) shall be
subject to all actions previously taken by its and Sevenson-
Delaware's Board of Directors, all as more fully provided under
the applicable provisions of the Delaware General Corporation Law
and the New York Business Corporation Law.
<PAGE>
II. CHARTER DOCUMENTS , DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. Subject to the
change of name of the Surviving Corporation contemplated by
Section 1.1 hereof, the Certificate of Incorporation of Sevenson-
New York as in effect immediately prior to the Effective Date of
the Merger shall continue in full force and effect as the
Certificate of Incorporation of the Surviving Corporation until
duly amended in accordance with the provisions thereof and
applicable law.
2.2 Bylaws. The Bylaws of Sevenson-New York as in
effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the Bylaws of the
Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
2.3 Directors and Officers. The directors and
officers of Sevenson-Delaware immediately prior to the Effective
Date of the Merger shall be the directors and officers of the
Surviving Corporation until their successors shall have been duly
elected and qualified or until as otherwise provided by law, or
the Certificate of Incorporation of the Surviving Corporation or
the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 Sevenson-Delaware Common Stock. Upon the
Effective Date of the Merger: (i) each share of Sevenson-Delaware
Common Stock issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other
person, be converted into and exchanged for one (1) fully paid
and nonassessable share of Common Stock, par value $.01 per
share, of the Surviving Corporation; and (ii) each share of
Sevenson-Delaware Class B Common Stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and
without any action by the Constituent Corporations, the holder of
such share or any other person, be converted into and exchanged
for one (1) fully paid and non-assessable share of Class B Common
Stock, par value $.01 per share, of the Surviving Corporation.
3.2 Sevenson-Delaware Options, Stock Purchase Rights
and Convertible Securities.
(a) Upon the Effective Date of the Merger, the
Surviving Corporation shall assume and continue the stock option
plans and all other employee benefit plans of Sevenson-Delaware.
Each outstanding and unexercised option or other right to
purchase or security convertible into the Surviving Corporation's
Common Stock shall become an option or right to purchase or a
security convertible into the Surviving Corporation's Common
Stock on the basis of one (1) share of the Surviving
Corporation's Common Stock for each share of Sevenson-Delaware
Common Stock issuable pursuant to any such option, stock purchase
right or convertible security, on the same terms and conditions
and at an exercise price per share equal to the exercise price
<PAGE>
applicable to any such Sevenson-Delaware option, stock purchase
right or convertible security at the Effective Date of the
Merger. There are no outstanding options, purchase rights for or
securities convertible into Class B Common Stock or Preferred
Stock of Sevenson-Delaware.
(b) A number of shares of the Surviving Corporation's
Common Stock shall be reserved for issuance upon the exercise of
options, stock purchase rights and convertible securities equal
to the number of shares of Sevenson-Delaware Common Stock so
reserved immediately prior to the Effective Date of the Merger.
3.3 Sevenson-New York Common Stock. Upon the
Effective Date of the Merger, each share of Common Stock, par
value $0.01 per share, of Sevenson-New York issued and
outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by the Constituent Corporations,
the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
3.4 Exchange of Certificates. After the Effective
Date of the Merger, each holder of an outstanding certificate
representing shares of Sevenson-Delaware Common Stock or Class B
Common Stock may, at such stockholder's option, surrender the
same for cancellation to [American Stock Transfer & Trust
Company], as exchange agent (the "Exchange Agent"), and each such
holder shall be entitled to receive therefor a certificate or
certificates representing the number of shares of the Surviving
Corporation's Common Stock or Class B Common Stock, as the case
may be, into which the surrendered shares were converted as
herein provided. Unless and until so surrendered, each
outstanding certificate theretofore representing shares of
Sevenson-Delaware Common Stock or Class B Common Stock shall be
deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock or Class B Common Stock, as
the case may be, into which such shares of Sevenson-Delaware
Common Stock or Class B Common Stock were converted in the
Merger.
The registered owner on the books and records of the
Surviving Corporation or the Exchange Agent of any shares of
stock represented by such outstanding certificate shall, until
such certificate shall have been surrendered for transfer or
conversion or otherwise accounted for to the Surviving
Corporation or the Exchange Agent, have and be entitled to
exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of
Common Stock or Class B Common Stock of the Surviving Corporation
represented by such outstanding certificate as provided above.
Each certificate representing Common Stock or Class B
Common Stock of the Surviving Corporation so issued in the Merger
shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Sevenson-
Delaware so converted and given in exchange therefore, unless
otherwise determined by the Board of Directors of the Surviving
Corporation in compliance with applicable laws, or other such
additional legends as agreed upon by the holder and the Surviving
Corporation.
<PAGE>
If any certificate for shares of Sevenson-New York
Common Stock or Class B Common Stock is to be issued in a name
other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of issuance
thereof that the certificate so surrendered shall be properly
endorsed and otherwise in proper form for transfer, that such
transfer otherwise be proper and comply with applicable
securities law and that the person requesting such transfer pay
to Sevenson-New York or the Exchange Agent any transfer or other
taxes payable by reason of issuance of such new certificate in a
name other than that of the registered holder of the certificate
surrendered or establish to the satisfaction of Sevenson-New York
that such tax has been paid or is not payable.
IV. GENERAL
4.1 Further Assurances. From time to time, as and when
required by Sevenson-New York or by its successors or assigns,
there shall be executed and delivered on behalf of Sevenson-
Delaware such deeds and other instruments, and there shall be
taken or caused to be taken by Sevenson-New York and Sevenson-
Delaware such further and other actions as shall be appropriate
or necessary in order to vest or perfect in or conform of record
or otherwise by Sevenson-New York the title to and possession of
all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Sevenson-Delaware
and otherwise to carry out the purposes of this Plan, and the
officers and directors of Sevenson-New York are fully authorized
in the name and on behalf of Sevenson-Delaware or otherwise to
take any and all such action and to execute and deliver any and
all such deeds and other instruments.
4.2 Abandonment. At any time before the Effective
Date of the Merger, this Plan may be terminated and the Merger
may be abandoned for any reason whatsoever by the Board of
Directors of Sevenson-Delaware, notwithstanding the approval of
this Plan by the stockholders of Sevenson-Delaware.
4.3 Amendment. The Board of Directors of Sevenson-
Delaware may amend this Plan at any time prior to the Effective
Date of the Merger, provided that an amendment made subsequent to
the adoption of this Plan by the stockholders of Sevenson-
Delaware shall not: (a) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received
in exchange for or on conversion of all or any of the shares of
any class or series thereof of either Constituent Corporation;
(b) alter or change any term of the Certificate of Incorporation
of the Surviving Corporation to be effected by the Merger; or (c)
alter or change any of the terms and conditions of this Plan if
such alteration or change would adversely affect the holders of
any class or series of capital stock of any Constituent
Corporation.
4.4 Availability of Plan. Executed copies of this
Plan will be on file at the principal place of business of the
Surviving Corporation at 2749 Lockport Road, Niagara Falls, New
York 14302 and copies thereof will be furnished to any
stockholder of Sevenson-Delaware, upon request and without cost.
<PAGE>
4.5 Governing Law. This Plan shall in all respects be
construed, interpreted and enforced in accordance with and
governed by the laws of the State of New York and, so far as
applicable, the provisions of the Delaware General Corporation
Law.
IN WITNESS WHEREOF, this Plan having first been
approved by the resolutions of the Board of Directors of Sevenson
Environmental Services, Inc., a Delaware corporation, is hereby
executed on behalf of such corporation and attested by its
respective officers thereunto duly authorized.
SEVENSON ENVIRONMENTAL SERVICES, INC.
a Delaware corporation
By: /s/ Laurence A. Elia
Laurence A. Elia
Vice President
ATTEST:
/s/ William J. McDermott
William J. McDermott
Secretary
<PAGE>
CERTIFICATE OF INCORPORATION Exhibit 3(a)
OF
SEVENSON ENVIRONMENTAL SERVICES OF NEW YORK, INC.
Under Section 402 of the Business Corporation Law
For the purposes of forming a corporation under the
Business Corporation Law of the State of New York, the
undersigned hereby certifies:
FIRST. The name of the corporation shall be Sevenson
Environmental Services of New York, Inc.
SECOND. The purpose of the corporation is to engage
in any lawful act or activity for which corporations may be
organized under the New York Business Corporation Law, provided
that it is not formed to engage in any act or activity requiring
the consent or approval of any state official, department, board,
agency or other body without such consent or approval first being
obtained.
THIRD. The office of the corporation is to be
located in the County of Niagara, New York.
FOURTH. The aggregate number of shares which the
corporation has authority to issue is 21,000,000, consisting of
1,000,000 shares of Preferred Stock with a par value of $.01 per
share ("Preferred Stock"), 12,000,000 shares of Common Stock with
a par value of $.01 per share ("Common Stock"), and 8,000,000
shares of Class B Common Stock with a par value of $.01 per share
("Class B Common Stock").
The relative rights, preferences and limitations of the
shares of each class and the authority of the Board of Directors
of the corporation to establish and to designate series of the
Preferred Stock and to fix the variations in the relative rights,
preferences and limitations as between such series, shall be as
follows:
1. Preferred Stock. The Board of Directors of the
corporation is authorized, subject to limitations prescribed by
law and the provisions of this Article FOURTH, to provide for the
issuance of shares of Preferred Stock in series, and by filing a
Certificate of Amendment of this Certificate of Incorporation
pursuant to Section 502(d) of the New York Business Corporation Law, to
establish from time to time the number of shares to be included
in each such series, and to fix the designation, relative rights,
preferences and limitations of the shares.
2. Common Stock.
(a) Common Stock and Class B Common Stock shall
be identical in all respects and shall have equal rights and
privileges, except as otherwise provided in this Article FOURTH.
<PAGE>
(b) Cash or Property Dividends. Subject to all
of the rights of any Preferred Stock outstanding from time to
time, no cash or property dividend shall be declared or paid to
the holders of Class B Common Stock unless the corporation shall
at the same time also declare and pay to the holders of Common
Stock a cash or property dividend per share at least 110% of the
dividend per share paid to the holders of the Class B Common
Stock. The corporation may pay cash or property dividends to
holders of Common Stock in excess of cash or property dividends
paid, or without paying cash or property dividends, to holders of
Class B Common Stock.
(c) Stock Dividends. If at any time a stock
dividend is to be paid in Class B Common Stock or Common Stock,
such stock dividend may be declared and paid only as follows:
(i) So long as no Common Stock is issued and
outstanding, Common Stock may be paid to holders of Class B
Common Stock;
(ii) So long as shares of both classes of
common stock are issued and outstanding, Common Stock shall be
paid only to holders of Common Stock and Class B Common Stock
shall be paid only to holders of Class B Common Stock, and
whenever a stock dividend is paid, the same number of shares
shall be paid in respect of each outstanding share of Common
Stock or Class B Common Stock.
(d) Stock Subdivisions and Combinations. The
corporation shall not subdivide or combine shares of either class
of common stock without at the same time making a proportionate
subdivision or combination of the other class of common stock.
(e) Voting. Subject to the rights of the holders
of any Preferred Stock outstanding from time to time, voting
power shall be divided between the Common Stock and the Class B
Common Stock as follows:
(i) With respect to the election of
directors, holders of Common Stock voting as a separate class
shall be entitled, subject to subparagraph 2(e)(v) of this
Article FOURTH, to elect that number of directors which
constitutes 25% of the authorized number of members of the Board
of Directors and, if such 25% is not a whole number, then the
holders of Common Stock shall be entitled to elect the nearest
whole number of directors that is at least 25% of such
membership. Holders of Class B Common Stock, voting as a
separate class, shall be entitled, subject to subpara-
graph 2(e)(vi) of this Article FOURTH, to elect the remaining
directors. Directors elected by the holders of Common Stock,
voting as a separate class, and directors elected by one or more
other directors to fill vacancies created by the death,
resignation or removal of directors elected by such class, shall
be designated as "Class A Directors." Directors elected by the
holders of Class B Common Stock, voting as a separate class, and
directors elected by one or more other directors to fill
vacancies created by the death, resignation or removal of
<PAGE>
directors elected by such class, shall be designated as "Class B
Directors." Directors elected by the holders of Common Stock and
Class B Common Stock, voting together as a single class pursuant
to subparagraph 2(e)(v) or subparagraph 2(e)(vi) of this Article
FOURTH, and directors elected by one or more other directors to
fill vacancies created by death, resignation or removal of
directors so elected, shall be designated as "Joint Directors."
(ii) Holders of Common Stock shall be
entitled to vote as a separate class on the removal, with or
without cause, of any Class A Director. Holders of Class B
Common Stock shall be entitled to vote as a separate class on the
removal, with or without cause, of any Class B Director. Holders
of Common Stock and Class B Common Stock shall be entitled to
vote together as a single class, as provided for in subparagraph
2(e)(vii) of this Article FOURTH, on the removal, with or without
cause, of any Joint Director.
(iii) The holders of the Common Stock and the
holders of the Class B Common Stock shall be entitled to vote as
separate classes only (A) when required by law to do so
irrespective of the limitations placed herein on the voting
rights of such shareholders, or (B) where a separate class vote
is required by specific provision therefor in this Certificate of
Incorporation.
(iv) Any vacancy in the office of a Class A
Director may be filled by a vote of holders of Common Stock
voting as a separate class. Any vacancy in the office of a
Class B Director may be filled by a vote of holders of Class B
Common Stock voting as a separate class. Any vacancy in the
office of a Joint Director may be filled by a vote of holders of
Common Stock and Class B Common Stock, voting together as a
single class as provided for in subparagraph 2(e)(vii) of this
Article FOURTH. Notwithstanding anything in this paragraph 2(e)
of this Article FOURTH to the contrary, any vacancy in the office
of a director of any class may be filled by the vote of the
majority of the directors in such class, by the sole remaining
director in such class or, in the event that there are no
remaining directors in such class, by the vote of the majority of
the other directors or by the sole remaining director,
regardless, in each instance, of any quorum requirements, set out
in the By-laws. Any director elected by some or all of the
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 permitted by the By-laws, the
Board of Directors may increase the number of directors and any
vacancy so created may be filled by the Board of Directors;
provided, that, so long as the holders of Common Stock have the
rights provided in subparagraph 2(e)(i) and 2(e)(iv) of this
Article FOURTH in respect of the last preceding annual meeting of
shareholders, the Board of Directors may be so enlarged by the
Board of Directors only to the extent that at least 25% of the
enlarged Board consists of Class A Directors.
<PAGE>
(v) Holders of Common Stock will not have the
rights to elect directors set forth in subparagraphs 2(e)(i) and
2(e)(iv) of this Article FOURTH if, on the record date for the
shareholder meeting at which such directors are to be elected, or
on the record date for any written consent of shareholders
pursuant to which directors are elected, the number of issued and
outstanding shares of Common Stock is less than 10% of the
aggregate number of issued and outstanding shares of Common Stock
and Class B Common Stock. In such case, all directors to be
elected shall be elected by holders of Common Stock and Class B
Common Stock voting together as a single class, provided that,
with respect to said election, the holders of Common Stock shall
have one vote per share and holders of Class B Common Stock shall
have ten votes per share.
(vi) Holders of Class B Common Stock will not
have the rights to elect directors set forth in subparagraphs
2(e)(i) and 2(e)(iv) of this Article FOURTH if, on the record
date for the shareholder meeting at which such directors are to
be elected, or on the record date for any written consent of
shareholders pursuant to which directors are elected, the number
of issued and outstanding shares of Class B Common Stock is less
than 12.5% of the aggregate number of issued and outstanding
shares of Common Stock and Class B Common Stock. In such case,
holders of Common Stock, voting as a separate class, shall have
the right to elect 25% of the members of the Board of Directors
as provided in subparagraph 2(e)(i) of this Article FOURTH, and
holders of Common Stock and holders of Class B Common Stock
voting together as a single class shall be entitled to elect the
remaining directors, provided that, with respect to said
election, the holders of Common Stock shall have one vote per
share and holders of Class B Common Stock shall have ten votes
per share.
(vii) Holders of Common Stock and Class B Common
Stock shall in all matters not otherwise specified in this
paragraph 2(e) of this Article FOURTH vote together as a single
class provided that in connection with such matters the holders
of Common Stock shall have one vote per share and the holders of
Class B Common Stock shall have ten votes per share.
(viii) Subject to the rights of the holders of
any Preferred Stock outstanding from time to time and
notwithstanding anything in this paragraph 2(e) of this Article
FOURTH to the contrary, the holders of Common Stock shall have
exclusive voting power on all matters at any time when no Class B
Common Stock is issued and outstanding, and the holders of
Class B Common Stock shall have exclusive voting power on all
matters at any time when no Common Stock is issued and
outstanding.
(f) Conversion. Each holder of record of Class B
Common Stock may at any time or from time to time, in such
holder's sole discretion and at such holder's option, convert any
whole number or all of such holder's shares of Class B Common
Stock into fully paid and non-assessable shares of Common Stock
at the rate of one share of Common Stock for each share of
<PAGE>
Class B Common Stock surrendered for conversion. Any such
conversion may be effected by any holder of Class B Common Stock
surrendering such holder's certificate or certificates for the
Class B Common Stock to be converted, duly endorsed, at the
office of the corporation or any transfer agent for the Class B
Common Stock, together with a written notice to the corporation
at such office that such holder elects to convert all or a
specified number of shares of Class B Common Stock and stating
the name or names in which such holder desires the certificate or
certificates for such Common Stock to be issued. Promptly
thereafter, the corporation shall issue and deliver to such
holder, or such holder's nominee or nominees, a certificate or
certificates for the number of shares of Common Stock to which
such holder shall be entitled as aforesaid. Such conversion
shall be deemed to have been made at the close of business at the
date of such surrender and the person or persons entitled to
receive the Common Stock issuable on such conversion shall be
treated for all purposes as the record holder or holders of such
Common Stock on that date.
Authorized but unissued Common Stock, to the extent
that such stock may be necessary to meet any exercise of the
conversion privilege of issued and outstanding Class B Common
Stock, shall be held by the corporation without the necessity of
a declaration by the Board of Directors, in reserve, to be issued
only in satisfaction of the conversion privilege of the issued
and outstanding Class B Common Stock. No Class B Common Stock
may be issued unless the authorized but unissued and unreserved
shares of Common Stock are sufficient to satisfy the conversion
privilege which will exist with respect to such Class B Common
Stock when issued.
(g) Liquidation. In the event of any liquidation,
dissolution or winding up of the corporation, the holders of the
Common Stock and the holders of the Class B Common Stock shall
participate equally per share in any distribution to
shareholders, if any, after payment in full to the holders of
Preferred Stock of the preferential amounts, if any, to which
they are entitled.
FIFTH. The Secretary of State of the State of New
York is designated as the agent of the corporation, upon whom
process against it may be served, and the post office address to
which the Secretary of State shall mail a copy of any such
process served upon him or her is c/o Phillips, Lytle, Hitchcock,
Blaine & Huber LLP, 3400 Marine Midland Center, Buffalo, New York
14203.
SIXTH. Subject to any limitation provided in any
statute of the State of New York, the corporation in furtherance
of its corporate purposes shall have all the powers now or
hereafter conferred by statute upon, or otherwise legally
attributable to, corporations formed under the New York Business
Corporation Law.
<PAGE>
SEVENTH. To the fullest extent that the New York
Business Corporation Law, as the same exists or may hereafter be
amended, permits elimination or limitation of the liability of
directors, no director of the corporation shall be liable to the
corporation or its shareholders for damages for any breach of
duty in such capacity. Any repeal or modification of this
Article by the shareholders of the corporation shall be
prospective only and shall not adversely affect any elimination
or limitation of the personal liability of a director of the
corporation for acts or omissions occurring prior to the
effective date of such repeal or modification.
IN WITNESS WHEREOF, the undersigned has made and signed
this Certificate of Incorporation this 13th day of May, 1998 and
the undersigned affirms the statements contained herein as true
under penalties of perjury.
/s/ Mary K. Mahoney
Mary K. Mahoney, Incorporator
3400 Marine Midland Center
Buffalo, New York 14203
<PAGE>
BY-LAWS Exhibit 3(b)
OF
SEVENSON ENVIRONMENTAL SERVICES, INC.
ARTICLE I
OFFICES
Section 1. The Corporation's principal office shall be
in the City of Niagara Falls, County of Niagara, State of New
York or such other location within or outside of the State of New
York as the board of directors of the Corporation (the "Board")
shall determine.
Section 2. The Corporation may also have offices at
such other places both within and outside of the State of New
York as the Board may from time to time determine or the business
of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. The annual meeting of the shareholders for
the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held at
such time and place, either within or outside of the State of New
York, as shall be determined by the Board and stated in the
notice of the meeting. The meeting may be adjourned from time to
time and place to place until its business is completed.
Section 2. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute
or by the Certificate of Incorporation, may be called by the
President or the Chairman of the Board, and shall be called by
the President or Secretary at the request in writing of a
majority of the entire Board. Such request shall state the
purpose or purposes of the proposed meeting. Business transacted
at any special meeting of shareholders shall be limited to the
purposes stated in the notice.
Section 3. Notice of every meeting of the shareholders
stating the place, date and hour of the meeting shall be given to
each shareholder entitled to vote at such meeting not less than
ten or more than fifty days before the date of the meeting.
Notice of a special meeting shall also state the purpose or
purposes for which it is called and the person or persons at
whose direction it is being called.
Section 4. The officer or agent who has charge of the
stock ledger or transfer book of the Corporation shall prepare
and make, at least ten days before every meeting of shareholders,
a complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address
<PAGE>
of each shareholder and the number of shares registered in the
name of each shareholder. Such list shall be open to the
examination of any shareholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any shareholder who is
present.
Section 5. Each outstanding share of common stock
shall be entitled to vote in accordance with the provisions for
voting specified in the Certificate of Incorporation or required
by law. In determining the number of shares of stock required by
law, by the Certificate of Incorporation or by these by-laws to
be represented for any purpose, or to determine the outcome of
any matter submitted to shareholders for approval or consent, the
number of shares represented or voted shall be weighted in
accordance with the provisions of the Certificate of
Incorporation regarding voting powers of each class of stock.
Any reference in these by-laws to a specific fraction or
percentage of the voting stock shall be deemed to refer to a
fraction or percentage of the voting power of such stock. Issues
shall be determined by a class vote only when a class vote is
required by law or by the Certificate of Incorporation.
Section 6. The holders of a majority of the voting
stock issued and outstanding, present in person or represented by
proxy, shall constitute a quorum at all meetings of the
shareholders for the transaction of business except as otherwise
provided by law or by the Certificate of Incorporation. If a
quorum shall fail to attend any meeting of the shareholders, the
shareholders present at such meeting may adjourn the meeting to
another place, date or time, without notice other than
announcement at the meeting. At such adjourned meeting at which
a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be
given to each shareholder of record entitled to vote at the
meeting. If a notice of any adjourned special meeting of
shareholders is sent to all shareholders entitled to vote
thereat, stating that it will be held with those present
constituting a quorum, then, except as otherwise required by law,
those present or represented at such adjourned meeting shall
constitute a quorum if they are the holders of at least one-third
of the voting stock issued and outstanding.
Section 7. When a quorum is present at any meeting,
any question brought before that meeting shall be determined by
the vote of a majority of the stock voting on such question,
present in person or represented by proxy, unless the question is
one upon which, by express provision of law or of the Certificate
of Incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of
such question.
<PAGE>
Section 8. The order of business and all other matters
of procedure at every meeting of the shareholders shall be
determined by the presiding officer. The Board shall appoint two
or more inspectors of election to serve at every meeting of the
shareholders at which directors are to be elected.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall
constitute the entire Board shall be eight. The term "entire
Board" as used in these By-Laws means the total number of
directors which the Corporation would have if there were no
vacancies. Each director elected shall hold office until his
successor is elected and qualified.
Section 2. Vacancies and newly created directorships
shall be filled in accordance with the provisions of the
Certificate of Incorporation.
Section 3. The business and affairs of the Corporation
shall be managed by or under the direction of the Board.
Section 4. Regular meetings of the Board may be held
without notice at such times and at such places as shall from
time to time be determined by the Board.
Section 5. Special meetings of the Board may be called
by the Chairman of the Board, the President, or by any officer of
the Corporation upon the request of a majority of the entire
Board. Notice of every special meeting of the Board shall be
given to each director at his regular place of business, or at
such other address as shall have been furnished by him for that
purpose. Such notice shall be given at least twenty-four hours
before the meeting by telephone or by being personally delivered
or telegraphed, or shall be given at least four business days
before the meeting by mail. Notice is complete when sent. Such
notice need not include a statement of the business to be
transacted at, or the purpose of, any such meeting.
Section 6. Except as otherwise provided by statute or
in these by-laws, the presence of a majority of the entire Board
shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall
be deemed the act of the Board. Less than a quorum may adjourn
any meeting of the Board from time to time, without notice other
than announcement at the meeting.
Section 7. UnLess otherwise restricted by the
Certificate of Incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board or
of any committee thereof may be taken without a meeting if all
members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
<PAGE>
Section 8. Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, members of the
Board or any committee thereof may participate in a meeting of
the Board or any committee by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting.
Section 9. The Board may, by resolution passed by a
majority of the entire Board, designate one or more committees,
each committee to consist of one or more of the directors. The
Board may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member
at any meeting of the committee. Any such committee, to the
extent provided in the resolution of the Board, shall have and
may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers
which may require it; but no such committee shall have any power
or authority the exercise of which by such committee is
proscribed by law. Such committee or committees shall have such
names or names as may be determined from time to time by
resolution adopted by the Board.
Section 10. Unless otherwise provided by the Board, a
majority of the members of any committee appointed by the Board
shall constitute a quorum at any meeting thereof and the act of a
majority of the members present at a meeting at which a quorum is
present shall be the act of such committee. Any such committee
shall, subject to any rules prescribed by the Board, prescribe
its own rules for calling, giving notice of and holding meetings
and its method of procedure at such meetings. Each committee
shall keep regular minutes of its meetings and report the same to
the Board when required by the Board.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the
applicable law, the Certificate of Incorporation or of these
bylaws, notice is required to be given to any director or
shareholder, it shall not be construed to exclusively mean
personal notice, but such notice may also be given in writing, by
mail, addressed to such director or shareholder at his address as
it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States
mail. Notice to directors may also be given telegram, telex or
similar means, in which case it shall be deemed to have been
given when transmitted.
Section 2. Whenever any notice is required to be given
under the provisions of applicable law, the Certificate of
Incorporation or of these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto.
<PAGE>
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be
appointed or elected by the Board. The officers shall be a
President, such number of Vice-Presidents as the Board may from
time to time determine, a Secretary, and a Treasurer and, if the
Board so determines, a Chairman of the Board and a Vice Chairman
of the Board. Any person may hold two or more offices. The
Board may also appoint such other officers and agents as it shall
deem appropriate.
Section 2. If appointed or elected by the Board, the
Chairman of the Board shall have the general powers and duties of
supervision and management of the business of the Corporation
which usually pertain to his office.
Section 3. The President shall be the chief executive
officer of the Corporation. He shall have the general powers and
duties of supervision and management of the business and affairs
of the Corporation which normally pertain to his office and shall
perform such other duties and have such other powers as the Board
may from time to time prescribe. He shall see that all orders
and resolutions of the Board are carried into effect. The
President shall preside at all meetings of the shareholders and
of the Board.
Section 4. In the absence of the President or in the
event of his inability or refusal to act, the Vice-President (or
in the event there be more than one Vice-President, the Vice
Presidents in the order designated by the Board, or, in the
absence of any designation, then in the order of their election)
shall perform the duties of the President and, when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President.
Section 5. The officers, agents and employees of the
Corporation shall perform the duties and exercise the powers
usually incident to the offices or positions held by them
respectively and/or such other duties and powers as may be
assigned to them from time to time by the Board or the President.
Section 6. The salaries of all officers of the
Corporation shall be fixed by the Board.
Section 7. The officers shall hold office until their
successors are chosen and qualify. Any officer elected or
appointed by the Board may be removed at any time by the Board
with or without cause. Any vacancy occurring in any office of
the Corporation shall be filled by the Board.
Section 8. Except as otherwise provided by the Board,
any one of the following officers, viz.: the Chairman of the
Board, the President, Vice-president and Secretary, shall have
the power in the name of or on behalf of the Corporation to
execute proxies for the voting of stock owned by the Corporation
in any other corporation for use at any meeting of shareholders
of such other corporation.
<PAGE>
ARTICLE VI
INDEMNIFICATION
Section 1. The Corporation shall, to the fullest
extent permitted by applicable law, as amended from time to time,
indemnify each person made, or threatened to be made, a party to
any action or proceeding, whether civil, criminal, administrative
or investigative ("Proceeding") by reason of the fact that such
person, such person's testator or intestate, is or was a director
or officer of the Corporation, or, while a director or officer,
serves or served, at the request of the Corporation, any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity, against judgments,
fines, penalties, amounts paid in settlement and reasonable
expenses (including attorneys' fees, costs and charges) incurred
in connection with such threatened or pending Proceeding, or any
appeal therein; provided that no such indemnification shall be
made if a judgment or other final adjudication adverse to such
person establishes that (i) his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and
were material to the cause of action so adjudicated, or (ii) he
or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled, and
provided further that no such indemnification shall be required
with respect to any settlement or other nonadjudicated
disposition of any threatened or pending Proceeding unless the
Corporation has given its prior consent to such settlement or
other disposition.
Section 2. The Corporation shall, from time to time,
advance or promptly reimburse upon request any director or
officer seeking indemnification hereunder the funds necessary for
payment of expenses (including attorneys' fees, costs and
charges) reasonably incurred in connection with any threatened or
pending Proceeding in advance of the final disposition thereof
upon receipt of a written undertaking by or on behalf of such
person to repay such amount if such person is ultimately found
not to be entitled to indemnification or, where indemnification
is granted, to the extent the expenses so advanced or reimbursed
exceed the amount to which such person is entitled.
Section 3. Nothing herein shall limit or affect any
right of any person otherwise than hereunder to indemnification
or to advancement of expenses (including attorneys' fees, costs
and charges) under any statute, rule, regulation, certificate of
incorporation, by-law, resolution of directors or shareholders,
insurance policy, contract or otherwise.
Section 4. The Corporation is authorized to enter into
agreements with any of its directors or officers to reflect or
confirm the rights and benefits contained in this Article and to
extend other additional rights to indemnification and to
advancement of expenses to any such person to the fullest extent
permitted by applicable law, and to set forth procedures for any
such person to obtain advancement of expenses and
indemnification, but the existence of any such agreement or the
failure to enter into any such agreement shall not adversely
affect or limit the rights of any such person pursuant to this
Article or otherwise.
<PAGE>
Section 5. For the purposes of this Article, the
Corporation shall be deemed to have requested a person to serve
an employee benefit plan where the performance by such person of
his or her duties to the Corporation also imposes duties on, or
otherwise involves services by, such person to the plan or
participants or beneficiaries of the plan, and excise taxes
assessed on a person with respect to an employee benefit plan
pursuant to applicable law shall be considered indemnifiable
expenses.
Section 6. If a request to be indemnified or for the
advancement of expenses pursuant to this Article is not paid in
full by the Corporation within 30 days after a written claim has
been received by the Corporation, the person seeking
indemnification or advancement of expenses 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 person seeking indemnification or advancement of
expenses shall be entitled also to be paid the expenses of
prosecuting such claim. In any such judicial proceeding, the
Corporation shall have the burden of proving by the preponderance
of the evidence that the person seeking indemnification or
advancement of expenses is not entitled to indemnification or
advances hereunder. Neither the failure of the Corporation
(including the Board, independent legal counsel or shareholders)
to have made a determination that the person seeking
indemnification or advancement of expenses is entitled to
indemnification or advancement of expenses in the circumstances
nor an actual determination by the Corporation (including the
Board, independent legal counsel or shareholders) that the person
seeking indemnification or advancement of expenses is not so
entitled shall be a defense to an action or create a presumption
that the person seeking indemnification or advancement of
expenses is not so entitled.
Section 7. Nothing in this Article shall restrict the
power and the authority of the Corporation to indemnify or
advance expenses to, make indemnification agreements and
arrangements with, or maintain insurance on behalf of, any
employee or agent of the Corporation or any person (whether or
not a director, officer, employee or agent of the corporation)
who serves at the request of the Corporation in any capacity with
any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise.
Section 8. If this Article or any part hereof shall be
held unenforceable in any respect by a court of competent
jurisdiction, it shall be deemed modified to the minimum extent
necessary to make it enforceable, and the remainder of this
Article shall remain fully enforceable.
Section 9. This Article shall be given retroactive
effect and the full benefits hereof shall be available in respect
of any alleged or actual occurrences, acts or failures to act
prior to the date of the adoption of this Article. The right to
indemnification or advancement of expenses under this Article
shall be a contract right.
<PAGE>
ARTICLE VII
REGISTERED SHAREHOLDERS
Section 1. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such
owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be
bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as
otherwise provided by applicable law.
ARTICLE VIII
DIVIDENDS
Section 1. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board at any
regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for
dividends such sum or sums as the Board from time to time, in its
absolute discretion, thinks proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing
or maintaining any property of the Corporation, or for such other
purpose as the Board shall think conducive to the interests of
the Corporation, and the Board may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE IX
SEAL
Section 1. The seal of the Corporation shall in such
form as the directors shall determine.
ARTICLE X
AMENDMENTS
Section 1. These by-laws may be added to, amended or
repealed either by the shareholders or the Board. Any by-law
adopted by the Board may be amended or repealed by the
Shareholders.
<PAGE>
The undersigned Secretary of Sevenson Environmental
Services, Inc., a corporation of the State of New York, HEREBY
CERTIFIED that the foregoing is a true and complete copy of the
By-Laws of said corporation, as at present in force and effect.
WITNESS, the hand of the undersigned and the seal of
the said corporation, this 22nd day of October, 1998.
/s/ William J. McDermott
Secretary
<PAGE>
