EXHIBIT (3)(i)
Unofficial Restated
CERTIFICATE OF INCORPORATION OF
THE MIDDLEBY CORPORATION
(AS AMENDED TO AUGUST 23, 1996)
1. The name of the Corporation is The Middleby Corporation.
2. The address of the registered agent of the Corporation is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County
of New Castle.
The registered agent at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
4. The Corporation shall have authority to issue 2,000,000 shares of
Preferred Stock, par value $.01 per share ("Preferred Stock") and 20,000,000
shares of Common Stock, par value $.01 per share ("Common Stock"). The
Preferred Stock shall be issuable in series with such designations, relative
rights, preferences and limitations as may be fixed from time to time by the
Board of Directors.
The designations, preferences and relative, participating, optional
and other special rights of the Preferred Stock (unless otherwise fixed by the
Board of Directors) and the qualifications, limitations and restrictions
thereof, are as follows:
(a) The shares of Preferred Stock may be divided into and issued in one or
more series, and each series shall be so designated so as to distinguish the
shares thereof from the shares of all other series. All shares of Preferred
Stock shall be identical except in respect of particulars which may be fixed by
the Board of Directors. Each share of a series shall be identical in all
respects with all other shares of such series, except as to the date from which
dividends thereon shall be cumulative on any series as to which dividends are
cumulative. Shares of Preferred Stock of any series which have been retired in
any manner, including shares redeemed or reacquired by the Corporation and
shares which have been converted into or exchanged for shares of any other
class, or any series of the same or any other class, shall have the status of
authorized but unissued shares of Preferred Stock and may be reissued as shares
of the series of which they were originally a part.
(b) Before any shares of Preferred Stock of any series shall be issued,
the Board of Directors, pursuant to authority hereby expressly vested in it,
shall fix by resolution or resolutions the following provisions in respect of
the shares of each such series so far as the same are not inconsistent with the
provisions herein applicable to all series of Preferred Stock:
(i) the distinctive designations of each series and the number of
shares which shall constitute such series, which number may be increased
(except where otherwise provided by the Board of Directors in creating such
series) from time to time by like action of the Board of Directors;
(ii) the annual rate or amount of dividends payable on shares of such
series, whether such dividends shall be cumulative or non-cumulative, the
conditions upon which and/or the dates when such dividends shall be payable
and the date from which dividends on cumulative series shall accrue and be
cumulative on all shares of such series issued prior to the payment date
for the first dividend of such series;
(iii) whether such series shall be redeemable and, if so, the terms
and conditions of such redemption, including the time or times when and the
price or prices at which shares of such series shall be redeemable;
(iv) the amount payable on shares of such series in the event of
liquidation, dissolution or winding up of the affairs of the Corporation;
(v) whether such series shall be convertible into or exchangeable for
shares of any other class, or any series of the same or any other class,
and if so, the terms and conditions thereof, including the date or dates
when such shares shall be convertible into or exchangeable for shares of
any other class, or any series of the same or any other class, the price or
prices or the rate or rates at which shares of such series shall be so
convertible or exchangeable, and any adjustments which shall be made in
such conversion or exchange prices or rates;
(vi) whether such series shall have any voting rights in addition to
those prescribed by law and, if so, the terms and conditions of exercise of
such voting rights; and
(vii) any other designations, preferences and relative, participating,
optional or other special rights, and any qualifications, limitations and
restrictions thereof.
5. (a) So long as any shares of Preferred Stock of any series shall
be outstanding, the Corporation will not declare
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or pay any dividends on the Common Stock (other than dividends payable solely in
shares of Common Stock) or make any distributions of any kind, either directly
or indirectly, in respect of shares of Common Stock, or make any payment on
account of the purchase, redemption or other acquisition of Common Stock, unless
on the payment, distribution or redemption date, as the case may be, all
dividends on the then outstanding shares of Preferred Stock of all series of
Preferred Stock then outstanding have been paid.
(b) In case the Corporation shall not pay in full all dividends required
to be paid on all shares of all series of Preferred Stock at the time
outstanding to the full extent of the preference, if any, to which each such
series is entitled, all series which are of equal rank with respect to such
dividends, including accumulations thereof, if any, shall be entitled to such
dividends in proportion to the amounts that would be payable on such series if
all dividends were paid in full. Accumulations of dividends shall not bear
interest.
(c) In case the Corporation shall not pay in full all amounts required to
be paid on all shares of all series of Preferred Stock at the time outstanding
in the event of the liquidation, dissolution or winding up of the affairs of the
Corporation, the shares of all series of Preferred Stock shall share ratably in
the payment of all amounts payable in the event of such liquidation, dissolution
or winding up in accordance with the sums which would be payable on such shares
if all amounts payable on such liquidation, dissolution or winding up were paid
in full.
(d) When dividends shall have been paid (or declared and set aside for
payment) on the Preferred Stock to the full extent of the preference, if any, to
which the Preferred Stock is entitled, dividends on the remaining class or
classes of stock may then be paid out of the funds of the Corporation which are
legally available therefor.
6. The property, affairs and business of the corporation shall be
managed by its Board of Directors consisting of not fewer than three (3) nor
more than eleven (11) persons. The exact number of directors within the maximum
and minimum limitation specified herein shall be fixed from time to time by
resolution adopted by the majority of the Board of Directors. The directors
shall be elected and shall hold office for such term and be subject to removal
as provided in the By-Laws of the Corporation.
7. No agreement or plan providing for the dissolution, liquidation,
merger or consolidation of the Corporation or the sale, lease, or transfer of
substantially all of its assets, shall be effective, unless approved by the
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affirmative vote of not less than two-thirds of the votes of all the shares of
stock outstanding and entitled to vote thereon.
8. Directors, officers, employees and other agents of the
Corporation, and persons who serve at its request as Directors, officers,
employees, or other agents of another organization in which the Corporation
directly or indirectly owns shares or of which it is a creditor, shall be
indemnified by the Corporation to the fullest extent permitted by law, which
indemnification shall include, but not be limited to, payment by the Corporation
of expenses incurred in defending a civil or criminal action or proceeding in
advance of the final disposition of such action or proceeding, upon receipt of
an undertaking by the person indemnified to repay such payments if he shall be
adjudicated to be not entitled to indemnification under the law. Any such
indemnification shall be provided although the person to be indemnified is no
longer an officer, director, employee, or agent of the Corporation or of such
other organization. No indemnification shall be provided for any person with
respect to any matter as to which he shall have been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the Corporation.
9. The name and mailing address of the incorporator is:
Christopher C. King
Schwartz Klink & Schreiber, P.C.
666 Third Avenue
New York, New York 10017
10. No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article 10
shall not eliminate or limit the liability of a director (except to the extent
provided by applicable law) (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of Delaware,
or (iv) for any transaction from which the director derived an improper personal
benefit. This Article 10 shall not apply to or have any effect on the liability
or alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to the date this Article
10 becomes effective. No amendment to or repeal of this Article 10 shall apply
to or have any effect on the liability or alleged liability of any director of
the Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
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11. All holders of the 7-1/2% Convertible Notes due 1997 (the
"Subordinated Notes") of this Corporation, which may be issued in exchange for
the Cumulative Redeemable Convertible Exchangeable Voting Preferred Stock of
this Corporation, shall be deemed to be stockholders of this Corporation, and
the Subordinated Notes shall be deemed to be shares of stock for the purpose of
any provision of the General Corporation Law of the State of Delaware or of this
Certificate which requires the vote of the stockholders as a prerequisite to any
corporate action.
CHRISTOPHER C. KING
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Christopher C. King
Incorporator