-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CEHYLP4p0vMjkLBxPA6rNSA0YFc7YsToNW2RHi6oSP6p63H7qqNiAmjLOR/AxQwO 9hZhLUCM8ocpbKOzve+AvA== 0001026018-05-000004.txt : 20050120 0001026018-05-000004.hdr.sgml : 20050120 20050120124601 ACCESSION NUMBER: 0001026018-05-000004 CONFORMED SUBMISSION TYPE: PRE 14C PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20050120 FILED AS OF DATE: 20050120 DATE AS OF CHANGE: 20050120 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYNERGY BRANDS INC CENTRAL INDEX KEY: 0000870228 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-GROCERIES & GENERAL LINE [5141] IRS NUMBER: 222993066 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: PRE 14C SEC ACT: 1934 Act SEC FILE NUMBER: 000-19409 FILM NUMBER: 05538158 BUSINESS ADDRESS: STREET 1: 40 UNDERHILL BLVD CITY: SYOSSET STATE: NY ZIP: 11791 BUSINESS PHONE: 5166821980 MAIL ADDRESS: STREET 1: 40 UNDERHILL BLVD CITY: SYOSSET STATE: NY ZIP: 11791 FORMER COMPANY: FORMER CONFORMED NAME: KRANTOR CORP DATE OF NAME CHANGE: 19930328 FORMER COMPANY: FORMER CONFORMED NAME: DELTA VENTURES INC DATE OF NAME CHANGE: 19600201 PRE 14C 1 file001.txt SCHEDULE 14C INFORMATION INFORMATION STATEMENT PURSUANT TO SECTION 14(C) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. ) Check the appropriate box: [ X ] Preliminary Information Statement [ ] Confidential, For Use Of The Commission Only (as permitted by Rule 14c-5(d)(2)) [ ] Definitive Information Statement SYNERGY BRANDS INC. (Name of Registrant as Specified In Its Charter) PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX): [X] No fee required. [ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11. 1) Title of each class of securities to which transaction applies: 2) Aggregate number of securities to which transaction applies: 3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): 4) Proposed maximum aggregate value of transaction: 5) Total fee paid: [ ] Fee paid previously with preliminary materials. [ ] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. 1) Amount Previously Paid: 2) Form, Schedule or Registration Statement No.: 3) Filing Party: 4) Date Filed: SYNERGY BRANDS INC. 1175 WALT WHITMAN ROAD MELVILLE, NY 11747 (516) 714-8200 Information Statement Relating To Action By Written Consent Of Majority Stockholders ------------------------ Dear Stockholder: On or about January 20, 2005 the Board of Directors of this corporation resolved and shareholders holding a majority of the votes on general matters regarding Synergy Brands Inc. (the "Company") subject to shareholder vote approved appropriate action including filing with the Delaware Secretary of State appropriate documentation to retroactively correct the Company's prior filings with the Delaware Secretary of State as determined appropriate and necessary by the CEO and corporate counsel to the Company to implement a reverse split of the authorized capital stock the Company shall have available to issue (including that issued to date) similar in amount to the 1 for 4 share reverse split of outstanding stock of the Company implemented as previously authorized in February 2003 such that the authorized stock structure shall be 15,000,000 shares of which 14,000,000 are common stock, 100,000 Class A Preferred, and 900,000 Class B Preferred of which 500,000 shall be designated Series A Class B Preferred, the preferences, rights and limitations thereof not to change, and further approved and confirmed approval of a further Amendment to the Certificate of Incorporation of the Company to reduce its authorized stock to a total of 6,000,000 shares, 5,000,000 of those being Common Stock and the balance of 1,000,000 shares being Preferred Stock, such Preferred Stock being further designated as 100,000 Class A Preferred and 900,000 Class B Preferred with 500,000 of such Class B Preferred continuing to be designated as Series A Class B Preferred. The designations, relative rights, preferences, and other terms of the securities are not changed from such as exist currently; just a change in the number of authorized shares. The number of such shares presently outstanding is also not changing. Any relevant inquiries may be made to the Secretary of the corporation, Mitchell Gerstein. Your consent is not required and is not being solicited in connection with these actions. Pursuant to Section 228 of the Delaware General Corporation Law, you are hereby being provided with notice of the approval by less than the unanimous written consent of the eligible voting stockholders of the Company. Pursuant to the Securities Exchange Act of 1934, you are hereby being furnished with an Information Statement relating to the Company's actions in which the referenced Certificates of Correction and Amendment documents to be filed with the Delaware Secretary of State are included as Exhibits. WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. THE ATTACHED INFORMATION STATEMENT IS BEING SENT TO YOU FOR INFORMATION PURPOSES ONLY. Sincerely, /S/Mair Faibish --------------- Mair Faibish Chief Executive Officer -2- SYNERGY BRANDS INC. 1175 WALT WHITMAN ROAD MELVILLE, NY 11747 (516) 714-8200 ------------------------ WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. THE ATTACHED INFORMATION STATEMENT IS BEING SENT TO YOU FOR INFORMATION PURPOSES ONLY. The Approximate Date of Mailing of this Information Statement is January 30, 2005. This Information Statement is being furnished by Synergy Brands Inc. (the "Company") in connection with actions taken by consent of holders of a majority of the outstanding voting rights regarding outstanding stock of the Company (the "Written Consent"), a copy of which is annexed hereto as Exhibit "1". By January 30, 2005, the Company's stockholders holding a majority of voting rights regarding the Company's outstanding stock had returned consents approving the transactions generally described below: 1. Authorizing appropriate action including filing with the Delaware Secretary of State appropriate documentation to retroactively correct the Company's prior filings with the Delaware Secretary of State as determined appropriate and necessary by the CEO and corporate counsel to the Company to implement a reverse split of the authorized capital stock the Company shall have available to issue (including that issued to date) similar in amount to the 1 for 4 share reverse split of outstanding stock of the Company implemented as previously authorized in February 2003 such that the authorized stock structure shall be 15,000,000 shares of which 14,000,000 are common stock, 100,000 Class A Preferred, and 900,000 Class B Preferred of which 500,000 shall be designated Series A Class B Preferred, the preferences, rights and limitations thereof not to change. 2. Authorizing Amendment to the Certificate of Incorporation of the Company to reduce its authorized stock to a total of 6,000,000 shares, 5,000,000 of those being Common Stock and the balance of 1,000,000 shares being Preferred Stock, such Preferred Stock being further designated as 100,000 Class A Preferred and 900,000 Class B Preferred with 500,000 of such Class B Preferred continuing to be designated as Series A Class B Preferred. 3. Approving such other actions as the directors of the Company deem necessary and appropriate to carry out the intent and purposes of the foregoing resolutions. The designations, relative rights, preferences, and other terms of the securities are not changed from such as existed prior to such corrections and Amendment; just a change in the number of authorized shares. The number of such shares outstanding also did not change. The actions taken by the Written Consent are expected to be effective within twenty-one (21) days (approximately February 20, 2005) after this Notice and attached Information Statement are mailed to all stockholders of the Company. All necessary corporate Shareholder and Director approvals in connection with the matters referred to herein have been obtained, and the implementation of the approved action is subject only to the filing of the appropriate Certificates of Correction and Amendment to the Company's Certificate of Incorporation in the format as included herewith as Exhibits. The accompanying Information Statement is furnished to all stockholders of record of the Company pursuant to Section 14 (c) of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder solely for the purpose of informing the stockholders of these corporate actions before they take effect. Pursuant to Section 228 of the Delaware General Corporation Law, stockholders of record of the Company as of January 20, 2005, the date on or about which the Written Consent was signed by the holders of not less than a majority of the votes represented by the Company's issued and outstanding Stock and eligible to be cast regarding the corporate action taken as described herein, are entitled to receive this Information Statement and Notice of Taking of Corporate Action Without a Meeting by Written Consent. The Company has asked brokers and other custodians and fiduciaries to forward this Information Statement to the beneficial owners of the Shares held of record by such persons and will reimburse such persons for out-of-pocket expenses incurred in forwarding such materials. The executive offices of the Company may be contacted at 1175 Walt Whitman Road, Melville, NY 11747. All holders of record of the shares at the close of business on January 20, 2005, will receive this Information Statement. -3- REVERSE SPLIT OF AUTHORIZED STOCK GENERAL Stockholders owning of record a majority of the votes represented by the outstanding stock of the Company and entitled to vote on all matters submitted for approval by shareholders of the Company, and the Company's Board of Directors have considered and voted upon and adopted a proposals providing for (i) appropriate action including filing with the Delaware Secretary of State appropriate documentation to retroactively correct the Company's prior filings with the Delaware Secretary of State as determined appropriate and necessary by the CEO and corporate counsel to the Company to implement a reverse split of the authorized capital stock the Company shall have available to issue (including that issued to date) similar in amount to the 1 for 4 share reverse split of outstanding stock of the Company implemented as previously authorized in February 2003 such that the authorized stock structure shall be 15,000,000 shares of which 14,000,000 are common stock, 100,000 Class A Preferred, and 900,000 Class B Preferred of which 500,000 shall be designated Series A Class B Preferred, the preferences, rights and limitations thereof not to change and (ii) Amendment of the Certificate of Incorporation of the Company to reduce its authorized stock to a total of 6,000,000 shares, 5,000,000 of those being Common Stock and the balance of 1,000,000 shares being Preferred Stock, such Preferred Stock being further designated as 100,000 Class A Preferred and 900,000 Class B Preferred with 500,000 of such Class B Preferred continuing to be designated as Series A Class B Preferred of Synergy Brands Inc. (the "Company").Copies of the Certificates of Correction and Amendment are included herewith as Exhibits. The Certificates of Correction and Amendment will become effective no earlier than twenty one days subsequent to the approximated date of mailing this Information Statement as stated at the outset hereof and upon their being filed with the Secretary of State of Delaware (the "Effective Date"). VOTE NEEDED FOR APPROVAL The proposed Certificates of Correction and Amendment to the Company's Certificate of Incorporation must be and were approved by the holders of at least a majority of the votes represented by all outstanding shares of the Company's Stock entitled to vote on the matter. The stockholders of the Company approved pursuant to the Written Consent annexed hereto as Exhibit 2 and incorporated herein by reference. THE BOARD OF DIRECTORS HAS APPROVED IMPLEMENTATION OF THE ACTIONS DESCRIBED HEREIN BY ADOPTING A RESOLUTION SETTING FORTH THE PROPOSED ACTIONS IN THE FORM ATTACHED HERETO AS EXHIBIT 3 AND INCORPORATED HEREIN BY REFERENCE, AND RECOMMENDED THAT THE STOCKHOLDERS OF THE COMPANY VOTE FOR IMPLEMENTATION OF SUCH ACTIONS, INCLUDING EXECUTION AND FILING OF THE PROPOSED CERTIFICATES OF CORRECTION AND AMENDMENT. -4- REASONS FOR THE PROPOSED ACTIONS TO IMPLEMENT BY APPROPRIATE ACTION THE MATTER DESCRIBED IN THE REFERENCED CERTIFICATES OF CORRECTION AND AMENDMENT The Company has determined that a significant cost savings in lessened Delaware State taxes would occur if the authorized stock available for issuance by the Company were reduced. When the Company reverse split its stock in February 2003 it inadvertently split only its outstanding stock and not comparably its authorized stock and the Company has determined that procedure is available to retroactively correct such oversight by amending its prior filings with the Delaware Secretary of State office made since the date of the referenced reverse split wherein reference to its authorized stock in its status prior to such reverse split still remains listed therein. Therefor, retroactive to February 2003 the Company has filed to decrease its authorized stock available for issuance from 60,000,000 shares divided into 49,900,000 common stock, 100,000 Class A Preferred and 10,000,000 Class B Preferred, of which latter stock 500,000 have been designated Series A Class B Preferred, to 15,000,000 shares divided into 14,000,000 common shares, 100,000 Class A Preferred, and 900,000 Class B Preferred of which 500,000 shares are designated Series A Class B Preferred. Such retroactive reduction does not reduce or otherwise affect the rights, preferences and limitations of any stock authorized and/or outstanding. The Company has also further authorized amending its Certificate of Incorporation to further reduce its authorized stock to 6,000,000 shares of which 5,000,000 are designated common stock and the balance Preferred Stock without further change. DISTRIBUTION OF INFORMATION STATEMENT The expenses relating to the distribution of this Information Statement will be borne by the Company. The distribution will be made by mail. WHERE YOU CAN FIND MORE INFORMATION The Company files annual, quarterly and special reports, proxy statements and other information with the SEC. You can read and copy any materials that the Company files with the SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549; the SEC's regional offices located at 233 Broadway, Suite 1300, New York, New York 10279, and at 500 West Madison Street, Chicago, Illinois 60661. You can obtain information about the operation of the SEC's Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a Web site that contains information we file electronically with the SEC, which you can access over the internet at http://www.sec.gov. Copies of these materials may also be obtained by mail from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. INCORPORATION OF DOCUMENTS BY REFERENCE The Company includes and incorporates by reference herein its Annual Report on Form 10-KSB for the 2003 fiscal year and Quarterly Reports on Form 10-QSB for the quarters March 31, 2004, June 30, 2004 and September 30, 2004. The Company does and may "incorporate by reference" the information it files with the SEC, which means that the Company can and does disclose important information without re-printing the information in this Information Statement by referring to prior and future filings with the SEC. The information the Company incorporates by reference is an important part of this Information Statement, and later information that the Company files with the SEC will automatically update and supersede this information. The Company incorporates by reference the following documents filed by the Company pursuant to the Securities Exchange Act of 1934: (i) the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 2003; (ii) the Company's Form 10-QSB for the quarters ended March 31, 2004 June 30, 2004 and September 30, 2004; and (v) any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. -5- You may request a copy of these filings (other than an exhibit to any of these filings unless the Company has specifically incorporated that exhibit by reference into the filing), at a cost of $.25 per page, by writing or telephoning the Company at the following address: Synergy Brands Inc. 1175 Walt Whitman Road Melville, NY 11747 (516)714-8200 You should rely only on the information the Company has provided or incorporated by reference in this Information Statement or any supplement. The Company has not authorized any person to provide information other than that provided here. The Company has not authorized anyone to provide you with different information. You should not assume that the information in this Information Statement or any supplement is accurate as of any date other than the date on the front of the document. FORWARD-LOOKING STATEMENTS AND INFORMATION This Information Statement, including the information incorporated by reference, includes forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act. You can identify forward-looking statements by the words such as "expects," "projects," "believes," "anticipates," "intends," "plans," "budgets," "predicts," "estimates" and similar expressions. The Company has based the forward-looking statements relating to our operations on our current expectations, estimates and projections about the Company. The Company cautions you that these statements are not guarantees of future performance and involve risks, uncertainties and assumptions that it cannot predict. In addition, the Company has based many of these forward-looking statements on assumptions about future events that may prove to be inaccurate. All risk factors stated in the Company's periodic reports incorporated herein by reference should also be reviewed and considered. Accordingly, the Company's actual outcomes and results may differ materially from what it has expressed or forecast in the forward-looking statements. By Order of the Board of Directors, /s/ Mair Faibish - ------------------------------------- Mair Faibish Chief Executive Officer Dated: January 20, 2005 -6- Exhibits Exhibit 1 Certificate of Correction to Certificate of Amendment filed February 11, 2003. Exhibit 2 Certificate of Correction to Restated Certificate of Incorporation filed November 10, 2003. Exhibit 3 Amendment to Certificate of Incorporation filed September 14, 2004. Exhibit 4 Certificate of Correction to Certificate of Amendment filed September 14, 2004. Exhibit 5 Consent of Majority Stockholders Exhibit 5.1 Consent of Board of Directors -7- EX-1 2 file002.txt SYNERGY BRANDS INC. STATE OF DELAWARE CERTIFICATE OF CORRECTION Synergy Brands Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware. DOES HEREBY CERTIFY: 1. The name of the corporation is Synergy Brands Inc. 2. That a Certificate of Amendment to Certificate of Incorporation was filed by the Secretary of State of Delaware on February 11, 2003 and that said Certificate requires correction as permitted by Section 103 of the General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said Certificate to be corrected is as follows: The Amendment correctly stated the reverse split of the outstanding stock of the corporation 1 share for each 4 shares outstanding but neglected to also disclose and implement a similar 1 for 4 reverse split of the amount of stock the corporation is authorized to issue 4. Article FOURTH of the Certificate is corrected to read as follows: Add (iii) The amount of shares the corporation is authorized to issue is also reverse split one for four resulting in the corporation being authorized to issue 15,000,000 shares of stock divided into 14,000,000 common shares, par value $.001 per share, 100,000 shares of Class A Preferred stock, par value $.001 per share, and 900,000 shares of Class B Preferred Stock, par value $.001 per share. IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Mair Faibish, an Authorized Officer, this day of January, A.D. 2005. By: /s/ Mair Faibish -------------------- Name: Mair Faibish Title: Chief Executive Officer EX-2 3 file003.txt SYNERGY BRANDS INC. STATE OF DELAWARE CERTIFICATE OF CORRECTION Synergy Brands Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware. DOES HEREBY CERTIFY: 1. The name of the corporation is Synergy Brands Inc. 2. That a Restated Certificate of Incorporation was filed by the Secretary of State of Delaware on November 10, 2003 and that said Certificate requires correction as permitted by Section 103 of the General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said Certificate to be corrected is as follows: Article Fourth incorrectly listed the number of shares the corporation shall have authority to issue as sixty million (60,000,000) and such divided into 49,900,000 common shares and 10,000,000 Class B Preferred Stock (along with 100,000 shares of Class A Preferred Stock) when in fact the corporation should have had as of the date of the filing of such document 15,000,000 shares of stock divided into 14,000,000 common shares and 900,000 Class B Preferred Shares (along with 100,000 shares of Class A Preferred Shares) 4. Article FOURTH of the Certificate is corrected to read as follows: The 15,000,000 authorized shares shall be divided into 14,000,000 common shares, par value $.001 per share, 100,000 shares of Class A Preferred Stock, par value $.001 per share, and 900,000 shares of Class B Preferred Stock par value $.001 per share. The number of voting and other powers, preferences and relative, participating, optional or other rights and the qualifications, limitations and restrictions of the designated Class A Preferred Stock, par value $.001 per share of the Corporation are as follows unless and until such provisions shall be changed by further resolution of this corporation's Board of Directors as to any stock of the class remaining authorized but unissued: Class A Preferred Stock 1. Designation and Amount. There shall be a series of Preferred Stock designated as "Class A Preferred Stock" and the number of shares constituting such series of Class A Preferred Stock shall be 100,000. 2. Par Value. The par value of each share of Class A Preferred Stock shall be $.001. 3. Rank. All shares of Class A Preferred Stock shall rank prior, both as to payment of dividends and as to distributions of assets upon liquidation, dissolut1on or winding up of the Corporation. whether voluntary or involuntary, to all of the Corporation's now or hereafter issued common stock, par value $.001 per share (the "Common Stock"). 4. Dividends. Class A Preferred Stock shall not be entitled to any dividends beyond those given to common stock. 5. Liquidation Preference. In the event of a liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of Class A Preferred Stock shall be entitled to receive out of the assets of the Corporation, whether such assets are stated capital or surplus of any nature, an amount equal to the dividends accumulated thereon to the date of final distribution to such holders whether or not declared, without interest, and a sum equal to $10.50 per share, before any payment shall be made or any assets distributed to the holders of Common Stock. All of the remaining net assets shall belong to and be distributed among the holders of the Common Stock and/or any other class or series of the Corporation's capital stock as may be provided in the corporation's Certificate of Incorporation and applicable law realizing thereof an applying whatever other priorities are therein provided. Neither a consolidation or merger of the Corporation with another corporation nor a sale or transfer of all or part of the Corporation's assets for cash, securities or other property will be considered a liquidation, dissolution or winding up of the Corporation. 6. Redemption at Option of the Corporation. The Corporation may, at its option, at any time redeem in whole, or from time to time in part, out of the earned funds of the Corporation, the Class A Preferred Stock on any date set by the Board of Directors, at $10.50 per share plus, in each case, an amount in cash equal to all dividends on the Class A Preferred Stock accrued and unpaid thereon whether or not declared, pro rata to the date fixed for redemption (such sum being hereinafter referred to as the "Redemption Price"). In case of the redemption of less than all of the then outstanding Class A Preferred Stock, the Corporation shall designate by lot, or in such other manner as the Board of Directors may determine, the shares to be redeemed or shall effect such redemption pro rata. Notwithstanding the foregoing, the Corporation shall not redeem less than all of the Class A Preferred Stock at any time outstanding until all dividends accrued and in arrears upon all Class A Preferred Stock then outstanding shall have been paid for all past dividend periods. Not less than thirty (30) days prior to the redemption date, notice by first class mail, postage prepaid, shall be given to the holders of record of the Class A Preferred Stock to be redeemed. addressed to such stockholder at their last addresses as shown on the books of the Corporation. Each such notice of redemption shall specify the date fixed for redemption, the Redemption Price, the place or places of payment, that payment will be made upon presentation and surrender of the shares of Class A Preferred Stock and that on and after the redemption date, dividends will cease to accumulate on such shares. Any notice which is mailed as herein provided shall be conclusively presumed to have been duly given, whether or not the holder of the Class A Preferred Stock receives such notice and failure to give such notice by mail, or any defect in such notice, to the holders of any shares designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Class A Preferred Stock. On or after the date fixed for redemption as stated in such notice, each holder of the shares called for redemption shall surrender the certificate evidencing such shares to the Corporation at the place designated in such notice and shall thereupon be entitled to receive payment of the Redemption Price. If less than all the shares represented by any such surrendered certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. If, on the date fixed for redemption, funds necessary for the redemption shall be available therefor and shall have been irrevocably deposited or set aside, then, notwithstanding that the certificates evidencing any shares so called for redemption shall not have been surrendered, the dividends with respect to the shares so called shall cease to accrue after the date fixed for redemption, the shares shall no longer be deemed outstanding, the holders thereof shall cease to be stockholders, and all rights whatsoever with respect to the shares so called for redemption (except the right of the holders to receive the Redemption Price without interest upon surrender of their certificates therefor) shall terminate. The shares of Class A Preferred Stock shall not be subject to the operation of any purchase, retirement or sinking fund. 7. Conversion. The shares of Class A Preferred Stock shall not be convertible at the option of the holder thereof. 8. Voting Rights. a. General. Each holder of Class A Preferred Stock will have thirteen (13) votes on all matters for which the holders of Common Stock may vote for every one (1) share of Class A Preferred Stock held. b. Class Voting Rights. In addition to voting rights provided above, so long as the Class A Preferred Stock is outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least one half (1/2) of all outstanding Class A Preferred Stock voting separately as a class, (i) amend, alter or repeal (by merger or otherwise) any provision of the Certificate of Incorporation or the By-laws of the Corporation, as amended, so as adversely to affect the relative rights, preferences, qualifications, limitations or restrictions of the Class A Preferred Stock, (ii) authorize or issue any additional class or ser1es of preferred stock or any security convertible into preferred stock, or (iii) effect any reclassification or additional issuance of the Class A Preferred Stock. 9. Outstanding Shares. For purposes of this Certificate of Designation, all shares of Class A Preferred Stock shall be deemed outstanding except (i) from the date fixed for redemption pursuant to Section 6 hereof, all shares of Class A Preferred Stock that have been so called for redemption under Section 6 hereof; and (ii) from the date of registration of transfer, all shares of Class A Preferred Stock held of record by the Corporation. 10. Partial Payments. Upon an optional redemption by the Corporation, if at any time the Corporation does not pay amounts sufficient to redeem all Class A Preferred Stock, then such funds which are paid shall be applied to redeem such Class A Preferred Stock as the Corporation may designate by lot. 11. Preemptive Rights. The Class A Preferred Stock is not entitled to any preemptive or subscription rights in respect of any securities of the Corporation. 12. Severability of Provisions. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended or shortened or a particular percentage were increased or decreased, then such court may make such change as shall be necessary to render the provision in question effective and valid under applicable law. Class B Preferred Stock 1,000,000 shares of the stock authorized to be issued by this corporation as Class B Preferred Stock shall have the following provisions applicable there to, unless and until such provisions shall be changed by further resolution of this corporation's Board of Directors as to any stock of the class remaining authorized but unissued: The Class B Preferred Stock shall be issued in one or more series. The Board of Directors is hereby expressly authorized to issue the shares of Preferred Stock in such series and to fix from time to time before issuance the number of shares to be included in any series and the designation, relative rights, preferences and limitations of all shares of such series. The authority of the Board of Directors with respect to each series shall include, without limitation thereto, the determination of any or all of the following and the shares of each series may vary from the shares of any other series in the following respects: a. The number of shares constituting such series and the designation thereof to distinguish the shares of such series from the shares of all other series; b. The annual dividend rate on the shares of that series and whether such dividends shall be cumulative and, if cumulative, the date from which dividends shall accumulate; c. The redemption price or prices for the particular series, if redeemable, and the terms and conditions of such redemption; d. The preference, if any, of shares of such series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; e. The voting rights, if any, in addition to the voting rights prescribed by law and the terms of exercise of such voting rights; f. The right, if any, of shares of such series to be converted into shares of any other series or class and the terms and conditions of such conversion; and g. Any other relative rights, preferences and limitations of that series. Pursuant to the authority conferred on the Board of Directors of this Corporation by the Certificate of Incorporation, the number of voting and other powers, preferences and relative, participating, optional or other rights and the qualifications, limitations and restrictions of 100,000 shares of the previously designated Class B Preferred stock. par value $.001 per share of the Corporation now to be designated Series A of Class B Preferred Stock are as follows: Series A of Class B Preferred Stock 1. Designation and Amount. There shall be a series of Class B Preferred Stock designated as "Series A of Class B Preferred Stock" and the number of shares constituting such series of Class B Preferred Stock shall be 100,000. 2. Par Value. The par value of each such share of Series A of Class B Preferred Stock shall be $.001. 3.Rank.All shares of Series A of Class B Preferred Stock shall rank prior, both as to payment of dividends and as to distributions of assets upon liquidation. dissolution or winding up of the Corporation, whether voluntary or involuntary, to all of the Corporation's now or hereafter issued Class A Preferred Stock $.001 par value ("Class A Preferred Stock") and its common stock. par value $.001 per share (the "Common Stock"). 4. Dividends. The holders of Series A of Class B Preferred Stock shall be entitled to receive, out of the net profits of the Corporation, dividends at the annual rate of $.90 per share per annum payable monthly by the 15th day of the month and accruing until paid starting and assessed beginning the first full month following issuance. The amount of dividends payable shall be computed on the basis of a 360 day year of twelve 30 day months. The Common Stock is entitled to all remaining profits which the Board of Directors may determine to distribute to the holders of Common Stock as dividends, Class A Preferred Stock not being entitled to any dividends but only liquidation preferences where applicable, subject to any future designations regarding the remainder of the unissued Class B Preferred Stock. No dividends or other distributions, other than dividends payable solely in shares of Common Stock of the Corporation ranking junior as to dividends and as to liquidation rights to the Series A of Class B Preferred Stock shall be declared, paid or set apart for payment on any shares of Common Stock and/or Class A Preferred Stock of the Corporation ranking junior as to dividends to Series A of Class B Preferred Stock unless and until all accrued and unpaid dividends of Series A of Class B Preferred Stock shall have been paid and/or set apart for payment. Any reference to "distribution" contained in this Section 4 shall not be deemed to include any distribution made in connection with any liquidation, dissolution or winding up of the Corporation whether voluntary or involuntary. 5. Liquidation Preference. In the event of a liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of Series A of Class B Preferred Stock shall be entitled to receive out of the assets of the Corporation, whether such assets are stated capital or surplus of any nature, an amount equal to the dividends accumulated thereon to the date of final distribution to such holders which have not prior thereto been paid without interest, and a sum equal to $10.00 per share, before any payment shall be made or any assets distributed to the holders of Class A Preferred Stock and/or Common Stock, or any other class or series of the Corporation's capital stock. All of the remaining net assets shall belong to and be distributed among the holders of the Class A Preferred Stock and/or Common Stock in proportion to rights designated for each, subject to any future designations regarding the remainder of the unissued Class B Preferred Stock. Neither a consolidation or merger of the Corporation with another corporation nor a sale or transfer of all or part of the Corporation's assets for cash, securities or other property will be considered a liquidation, dissolution or winding up of. the Corporation. 6. Redemption at Option of the Corporation. The Corporation may, at its option, at any time redeem in whole, or from time to time in part, out of the earned funds of the Corporation, the Series A of Class B Preferred Stock on any date set by the Board of Directors, at $10.00 per share plus, in each case, an amount in cash equal to all dividends on the Series A of Class B Preferred Stock accrued and unpaid thereon, pro rata to the date fixed for redemption (such sum being hereinafter referred to as the "Redemption Price"). In case of the redemption of less than all of the then outstanding Series A of Class B Preferred Stock, the Corporation shall designate by lot, or in such other manner as the Board of Directors may determine, the shares to be redeemed or shall effect such redemption pro rata. Notwithstanding the foregoing, the Corporation shall not redeem less than all of the Series A of Class B Preferred Stock at any time outstanding until all dividends accrued and in arrears upon all Series A of Class B Preferred Stock then outstanding shall have been paid for all past dividend periods. Not less than thirty (30) days prior to the redemption date notice by first class mail, postage prepaid, shall be given to the holders of record of the Series A of Class B Preferred Stock to be redeemed, addressed to such stockholders at their last addresses as shown on the books of the Corporation. Each such notice of redemption shall specify the date fixed for redemption, the Redemption Price, the place or p1aces of payment, that payment will be made upon presentation and surrender of the shares of the Series A of Class B Preferred Stock and that on and after the redemption date, dividends will cease to accumu1ate on such shares. Any notice which is mailed as herein provided shall be conclusively presumed to have been duly given, whether or not the holder of the Series A of Class B Preferred Stock receives such notice; and failure to give such notice by mail, or any defect in such notice, to the holders of any shares designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of the Series A of Class B Preferred stock. On or after the date fixed for redemption as stated in such notice, each holder of the shares called for redemption shall surrender the certificate evidencing such shares to the Corporation at the place designated in such notice and shall thereupon be entitled to receive payment of the Redemption Price. If less than all the shares represented by any such surrendered certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. If, on the date fixed for redemption, funds necessary for the redemption shall be available therefor and shall have been irrevocably deposited or set aside, then, notwithstanding that the certificates evidencing any shares so called for redemption shall not have been surrendered, the dividends with respect to the shares so called shall cease to accrue after the date fixed for redemption, the shares shall no longer be deemed outstanding, the holders thereof shall cease to be stockholders, and all rights whatsoever with respect to the shares so called for redemption (except the right of the holders to receive the Redemption Price without interest upon surrender of their certificates therefor) shall terminate. The shares of Series A of Class B Preferred Stock shall not be subject to the operation of any purchase, retirement or sinking fund. 7. Conversion. The shares of Series A of Class B Preferred Stock shall not be convertible at the option of the holder thereof. 8. Voting Rights. a. General. The shares of Series A of Class B Preferred Stock shall not have any voting rights regarding any corporation business except that solely and directly affecting the existence and rights and obligations of such Series A of Class B Preferred Stock. b. Class Voting Rights. In addition to voting rights provided above, so long as the Series A of Class B Preferred Stock is outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least one half (1/2) of all outstanding Series A of Class B Preferred Stock voting separately as a class, amend, alter or repeal (by merger or otherwise) any provision of the Certificate of Incorporation or the By-Laws of the Corporation, as amended, so as adversely to affect the relative rights. preferences, qualifications, limitations or restrictions of the Series A of Class B Preferred Stock. 9. Outstanding Shares. For purposes of this Certificate of Designation, all shares of the Series A of Class B Preferred Stock issued shall be deemed outstanding except (i) from the date fixed for redemption pursuant to Section 6 hereof, all shares of Series A of Class B Preferred Stock that have been so called for redemption under Section 6 hereof; and (ii) from the date of registration of transfer, all shares of the Series A of Class B Preferred Stock held of record by the Corporation. 10. Partial Payments. Upon an optional redemption by the Corporation, if at any time the Corporation does not pay amounts sufficient to redeem all Series A of Class B Preferred Stock, then such funds which are paid shall be applied to redeem such Series A of Class B Preferred Stock as the Corporation may designate by lot. 11. Preemptive Rights. The Series A of Class B Preferred Stock is not entitled to any preemptive or subscription rights in respect of any securities of the Corporation. 12. Severability of Provisions. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be val1d or enforceable if a period of time were extended or shortened or a particular percentage were increased or decreased, then such court may make such change as shall be necessary to render the provision in question effective and valid under applicable jaw. To the extent not otherwise designated and until issued the shares of stock may be issued from time to time in one or more classes or one or more series within any class thereof, in any manner permitted by law, as determined from time to time by the board of directors, and stated in the resolution or resolutions providing for the issuance of such shares adopted by the board of directors pursuant to authority hereby vested in it, each class or series to be appropriately designated, prior to the issuance of any shares thereof, by some distinguishing letter, number, designation or title. All shares of stock in such classes or series may be issued for such consideration and have such voting powers, full or limited, or no voting powers, and shall have such designations preferences and relative, participating, optional, or other special rights, and qualifications, limitations or restrictions thereof, permitted by law, as shall be stated and expressed in the resolution or resolutions, providing for the issuance of such shares adopted by the board of directors pursuant to authority hereby vested in it. The number of shares of stock of any class or series within any class, so set forth in such resolution or resolutions may be increased (but not above the total number of authorized shares of the class) or decreased (but not below the number of shares thereof then outstanding) by further resolution or resolutions adopted by the board of directors pursuant to authority hereby vested in it. IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Mair Faibish, an Authorized Officer, this day of January, A.D. 2005. By: /s/ Mair Faibish - ------------------------ Name: Mair Faibish Title: Chief Executive Officer EX-3 4 file004.txt CERTIFICATE OF AMENDMENT to CERTIFICATE OF INCORPORATION of SYNERGY BRANDS INC. Synergy Brands Inc. a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware. DOES HEREBY CERTIFY: FIRST: by consent of the Board of Directors of Synergy Brands Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable. The resolution setting forth the proposed amendment is as follows: RESOLVED: that this corporation shall and is hereby authorized to amend its Certificate of Incorporation to decrease the amount of authorized stock available to be issued by this corporation from 60,000,000 shares of stock to 6,000,000 shares of stock divided into 5,000,000 shares of Common Stock, 100,000 shares of Class A Preferred Stock and 900,000 shares of Class B Preferred Stock of which Class B Preferred Stock 500,000 shares shall continue to be designated Series A Class B Preferred, the designations, relative rights, preferences, and other terms of such securities not to change (except for the amount of authorized shares thereof) from that in existence at the date hereof, the intended purpose of such amendment being to allow a more manageable tax structure for this Corporation. The Certificate of Incorporation of this corporation shall be amended by: 1. Changing the first Paragraph of Article FOURTH therein, first sentence therein to read as follows. "The total number of shares of stock which the corporation shall have authority to issue is six million (6,000,000)." 2. Changing the paragraph in article numbered FOURTH which now reads. "The 60,000,000 authorized shares shall be divided into 49,900,000 common shares, par value $.001 per share, 100,000 Class A Preferred Stock, par value $.001 per share and 10,000,000 Class B Preferred Stock par value $.001 per share" so that, as amended, said paragraph shall be and read as follows: "The 6,000,000 authorized shares shall be divided into 5,000,000 common shares, par value $.001 per share, 100,000 Class A Preferred Stock, par value $.001 per share and 900,000 Class B Preferred Stock, par value $.001 per share." 3. Changing the subsection in Article Fourth captioned as Class B Preferred Stock to reduce the designation of the number of shares therein included from 10,000,000 to 900,000 and the amount of shares authorized thereof being designated Series A Class B Preferred to remain at 500,000 shares. RESOLVED: that the consent of shareholders of this corporation be requested to adopt the above resolutions, where necessary in accord with the General Corporation Law of the State of Delaware. SECOND: That said amendment was duly adopted in accordance with the provision of Section 242 of the General Corporation of Law of the State of Delaware (the "GCL"), by written consent of a majority of the votes represented by outstanding stock entitled to vote thereon with written notice to all remaining applicable shareholders in compliance with Section 228 of the GCL. THIRD: That the capital of said corporation shall not be reduced under or by reason of said amendment. IN WITNESS OF, said corporation has caused this certificate to be signed by Mair Faibish, its CEO, and Mitchell Gerstein, its secretary, this day of September, 2004. By: /s/ Mair Faibish - ---------------------- Mair Faibish CEO By: /s/ Mitchell Gerstein - -------------------------- Mitchell Gerstein Secretary EX-4 5 file005.txt SYNERGY BRANDS INC. STATE OF DELAWARE CERTIFICATE OF CORRECTION Synergy Brands Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware. DOES HEREBY CERTIFY: 1. The name of the corporation is Synergy Brands Inc. 2. That a Certificate of Amendment to Certificate of Incorporation was filed by the Secretary of State of Delaware on September 14, 2004 and that said Certificate requires correction as permitted by Section 103 of the General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said Certificate to be corrected is as follows: The Amendment remains unchanged as to the number of shares of stock the corporation is authorized to issue and into what amounts as between common stock, Class A Preferred Stock and Class B Preferred Stock such authorized shares are divided but the reference to the status of the corporation's authorized stock prior to this amendment lowering the number of shares was incorrectly stated. Otherwise the referenced amendment reducing the number of shares the corporation has authority to issue to 6,000,000 shares divided into 5,000,000 shares of common stock, par value $.001, 100,000 stares of Class A Preferred Stock, par value $.001 per share and 900,000 shares of Class B Preferred Stock par value $.001 per share of which Class B Preferred Stock 500,000 shares are designated as Series A Class A Preferred, with preferences, rights and limitations as previously filed has been and is hereby confirmed. 4. Article FIRST of the Certificate is corrected to read as follows: (i) Amend the second paragraph therein to read as follows: RESOLVED: that this corporation shall and is hereby authorized to amend its Certificate of Incorporation to decrease the amount of authorized stock available to be issued by this corporation from 15,000,000 shares of stock to 6,000,000 shares of stock divided into 5,000,000 shares of Common Stock, 100,000 shares of Class A Preferred Stock and 900,000 shares of Class B Preferred Stock of which Class B Preferred Stock 500,000 shares shall continue to be designated Series A Class B Preferred, the designations, relative rights, preferences, and other terms of such securities not to change (except for the amount of authorized shares thereof) from that in existence at the date hereof, the intended purpose of such amendment being to allow a more manageable tax structure for this Corporation. (ii) Amend reference to prior Article FOURTH in sub paragraph 2 to read as follows: 2. Changing the paragraph in article numbered FOURTH which now reads. "The 15,000,000 authorized shares shall be divided into 14,000,000 common shares, par value $.001 per share, 100,000 Class A Preferred Stock, par value $.001 per share and 900,000 Class B Preferred Stock par value $.001 per share" (iii) eliminate sub paragraph 3 as now unnecessary IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by Mair Faibish, an Authorized Officer, this day of January, A.D. 2005. By: /s/ Mair Faibish - ------------------------ Name: Mair Faibish Title: Chief Executive Officer EX-5 6 file006.txt SYNERGY BRANDS INC. CONSENT OF MAJORITY SHAREHOLDERS IN LIEU OF MEETING January 20, 2005 The undersigned being the holders of record as of the date hereof of a majority of votes represented by all of the issued and outstanding stock of Synergy Brands Inc, and authorized to vote such securities, do hereby consent to and adopt the actions as set forth in the following resolutions: RESOLVED, that this corporation is and be authorized to retroactively correct its prior filings with the Delaware Secretary of State as determined appropriate and necessary by the CEO and corporate counsel to implement a reverse split of the authorized capital stock this corporation shall have available to issue (including that issued to date) similar in amount to the 1 for 4 share reverse split of outstanding stock of this corporation implemented as previously authorized in February 2003 such that the authorized stock structure shall be 15,000,000 shares of which 14,000,000 are common stock, 100,000 Class A Preferred, and 900,000 Class B Preferred of which 500,000 shall be designated Series A Class B Preferred, the preferences, rights and limitations thereof not to change, and further that it be and is hereby confirmed and ratified that this corporation is and has previously been authorized to further amend its certificate of incorporation to decrease its authorized stock to 5,000,000 shares of common stock and 1,000,000 shares of preferred stock further which preferred stock be divided into 100,000 shares of Class A Preferred and 900,000 Class B Preferred of which latter preferred 500,000 shares shall continue to be designated Series A Class B Preferred, the designations, preferences, terms and condition of all such stock (excepting the number of shares thereof authorized for issuance) not being changed from its present status at the date of this consent, and such corrections and amendment may be filed in the form attached to and made a part of this consent, copies of which have been reviewed and approved by each of the undersigned, such actions to take effect on the filing of an information statement with the SEC and such other measures as shall be appropriate and necessary to comply with applicable regulation. IMPLEMENTATION RESOLVED, that the proper officers of this corporation be and they are hereby authorized and directed to do or cause to be done any and all such acts and things and to execute and deliver any and all such further documents and papers as they may deem necessary or appropriate to carry into effect the full intent and purpose of the foregoing resolutions and all referenced resolutions of this corporation's Board of Directors applicable thereto. ________________________ ________________________ ________________________ ________________________ EX-5.1 7 file007.txt SYNERGY BRANDS INC. Unanimous Consent of Directors Janaury 20, 2005 The undersigned, being all of the directors of Synergy Brands Inc., hereby consent to, authorize, approve, ratify and adopt the following resolutions as though done at a formal meeting: RESOLVED, that this corporation is and be authorized to retroactively correct its prior filings with the Delaware Secretary of State as determined appropriate and necessary by the CEO and corporate counsel to implement a reverse split of the authorized capital stock this corporation shall have available to issue (including that issued to date) similar in amount to the 1 for 4 share reverse split of outstanding stock of this corporation implemented as previously authorized in February 2003 such that the authorized stock structure shall be 15,000,000 shares of which 14,000,000 are common stock, 100,000 Class A Preferred, and 900,000 Class B Preferred of which 500,000 shall be designated Series A Class B Preferred, the preferences, rights and limitations thereof not to change, and further that it be and is hereby confirmed and ratified that this corporation is and has previously been authorized to further amend its certificate of incorporation to decrease its authorized stock to 5,000,000 shares of common stock and 1,000,000 shares of preferred stock further which preferred stock be divided into 100,000 shares of Class A Preferred and 900,000 Class B Preferred of which latter preferred 500,000 shares shall continue to be designated Series A Class B Preferred, the designations, preferences, terms and condition of all such stock (excepting the number of shares thereof authorized for issuance) not being changed from its present status at the date of this consent, and such corrections and amendment may be filed in the form attached to and made a part of this consent, copies of which have been reviewed and approved by each of the undersigned, such actions to take effect on the filing of an information statement with the SEC and such other measures as shall be appropriate and necessary to comply with applicable regulation. IMPLEMENTATION. Resolved, that the proper officers of this corporation be and hereby are authorized and directed to do or cause to be done any and all such acts and things and to execute and deliver any and all such further documents and papers as they may deem necessary or appropriate to carry into effect the full intent and purpose of the foregoing resolutions. --------------------------- Mair Faibish --------------------------- Mitchell Gerstein --------------------------- Dominick Marsicovetere --------------------------- Randall J. Perry --------------------------- William Rancic --------------------------- Frank A. Bellis Jr. --------------------------- Lloyd Miller --------------------------- Joel Sebastain -----END PRIVACY-ENHANCED MESSAGE-----