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Exhibit 3.1(a)
CERTIFICATE OF INCORPORATION
of
PSF GROUP HOLDINGS, INC.
The undersigned incorporator, in order to for a corporation under the
General Corporation Law of the State of Delaware, certifies as follows:
ARTICLE I
NAME
The name of the corporation is PSF Group Holdings, Inc. (the "Corporation").
ARTICLE II
ADDRESS; AGENT
The address of the Corporation's registered office is 9 East Loockerman
Street, Kent County, Dover, Delaware 19901; and its registered agent at such
address is National Corporate Research, Ltd.
ARTICLE III
NAME AND ADDRESS OF INCORPORATOR
The name and mailing address of the incorporator are: Mary E. Reidy,
1285 Avenue of the Americas, New York, NY 10019.
ARTICLE IV
PURPOSES
The purpose of the Corporation is to engage in, carry on and conduct
any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
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ARTICLE V
NUMBER OF SHARES
The total number of shares of all classes of stock that the Corporation
shall have authority to issue is 56,000,000, consisting of the following three
classes of stock:
(a) 25,000,000 shares of Class A Common Stock, par value $.01 per share
(the "Class A Common Stock");
(b) 30,000,000 shares of Class B Common Stock, par value $.01 per share
(the "Class B Common Stock");
(c) 1,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock").
ARTICLE VI
DESIGNATION OF CLASSES; RELATIVE RIGHTS
The designation, relative rights, preferences and limitations of the
shares of each class of stock are as follows:
6.1 Common Stock.
6.1.1 Voting. The holders of record of Class A Common Stock
shall have the sole right to vote in the election or for the removal without
cause of Class A Directors, and the holders of record of Class B Common Stock
shall have the sole right to vote in the election or for the removal without
cause of Class B Directors, in each case as defined in and subject to Article
VII. Except as provided in and subject to Article VII and except as otherwise
required by law, the holders of record of Common Stock, voting together as a
single class, shall have full voting rights on all other matters submitted to a
vote of Stockholders. Subject to the foregoing provisions, each share of Class A
Common Stock and Class B Common Stock shall entitle the holder therof to one
vote in person or by proxy on all matters submitted to a vote of the
stockholders of the corporation.
6.1.2 Distributions.
(a) Subject to Section 6.1.2(b), no Distribution shall be
declared or paid on any class of Common Stock unless a per share Distribution of
like kind and amount is concurrently declared and paid on all other classes of
Common Stock.
(b) No dividend shall be declared or paid on any class of
Common Stock payable in any other class of Common Stock. No dividend payable in
shares of a class of Common Stock shall be declared or paid on the same class of
Common Stock, nor shall the
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shares of any class of Common Stock be subdivided or combined into a different
number of shares, unless concurrently therewith a dividend of equal
proportionate amount is declared and paid on each other class of Common Stock in
shares of such class, or the shares of each other class of Common Stock are
similarly subdivided or combined, so that the proportion which the number of
issued and outstanding shares of each class of Common Stock bears to the total
number of issued and outstanding shares of Common Stock will not change as a
result of such dividend, subdivision or combination.
6.2 Preferred Stock. The shares of Preferred Stock may be issued from
time to time in one or more series with each such series being comprised of such
number of shares and having such powers, preferences and rights and
designations, all as shall hereafter be stated and expressed in the resolution
or resolutions providing for the issue of such shares of Preferred Stock from
time to time adopted by the Board of Directors pursuant to authority so to do
which is hereby vested in the Board of Directors. Each series of shares of
Preferred Stock: (a) may have such voting rights or powers, full or limited, or
may be without voting rights or powers; (b) may be subject to redemption at such
time or times and at such prices; (c) may be entitled to receive dividends
(which may be cumulative or non-cumulative) at such rate or rates, on such
conditions and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or series of stock; (d)
may have such rights upon the voluntary or involuntary liquidation, winding up
or dissolution of, or upon any distribution of the assets of, the Corporation;
(e) may be made convertible into or exchangeable for, shares of any other class
or classes or of any other series of the same or any other class or classes of
stock of the Corporation at such price or prices or at such rates of exchange
and with such adjustments; (f) may be entitled to the benefit of a sinking fund
to be applied to the purchase or redemption of shares of such series in such
amount or amounts; (g) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or any
Subsidiary, upon the issue of any additional shares (including additional shares
of such series or of any other series) and upon the payment of dividends or the
making of other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any Subsidiary of, any outstanding shares of
the Corporation; and (h) may have such other relative, participating, optional
or other special rights, qualifications, limitations or restrictions thereof;
all as shall be stated in said resolution or resolutions providing for the issue
of such shares of Preferred Stock. Shares of Preferred Stock of any series that
have been redeemed (whether through the operation of a sinking fund or
otherwise) or that if convertible or exchangeable, have been converted into or
exchanged for shares of any other series or class or classes shall have the
status of authorized and unissued shares of Preferred Stock undesignated as to
series and may be reissued as a part of the series of which they were originally
a part or as part of a new series of shares of Preferred Stock to be created by
resolution or resolutions of the Board of Directors or as part of any other
series of shares of Preferred Stock, all subject to the conditions or
restrictions on issuance set forth in the resolution or resolutions adopted by
the Board of Directors providing for the issue of any series of shares of
Preferred Stock.
6.3 Liquidation. In the event of any liquidation, dissolution, or
winding up of the Corporation, whether voluntary or involuntary, after payment
shall have been made to the holders of shares of Preferred Stock of the full
preferential amount to which they shall be entitled, if any, pursuant to the
resolution or resolutions providing for the issue of such series of
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shares of Preferred Stock, the holders of shares of Common Stock shall be
entitled, subject to the rights, if any, of the holders of shares of any series
of Preferred Stock to participate therein pursuant to the resolution or
resolutions providing for the issuance of such Preferred Stock, to share,
ratably according to the number of shares of Common Stock held by them, in all
remaining assets of the Corporation available for distribution to its
Stockholders.
6.4 Issues. Subject to the provisions of this Certificate of
Incorporation and except as otherwise provided by law, the Common Stock of the
Corporation, regardless of class, may be issued for such consideration and for
such corporate purposes as the Board of Directors may from time to time
determine.
ARTICLE VII
BOARD OF DIRECTORS
7.1 Number, Election, Terms of Office and Classes of the Board of
Directors. Except to the extent otherwise provided in this Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors, which shall consist of nine
(9) directors. Election of directors need not be by written ballot unless the
By-laws so provide. Subject to Section 7.5, the Board shall be divided into two
classes as follows:
(a) Four (4) Class A Directors (collectively, the "Class A Directors")
who shall be elected by a plurality of the votes cast by the holders of the
issued and outstanding shares of Class A Common Stock and who may be removed
without cause by the affirmative vote of the holders of a majority of the issued
and outstanding shares of Class A Common Stock; and
(b) Five (5) Class B Directors (collectively, the "Class B Directors")
who shall be elected by a plurality of the votes cast by the holders of the
issued and outstanding shares of Class B Common Stock and who may be removed
without cause by the affirmative vote of the holders of a majority of the issued
and outstanding shares of Class B Common Stock.
7.1.1 Tenure. Each Director shall be elected to serve until
the next annual meeting of Stockholders or until his or her successor is duly
elected and qualified, subject to his earlier death, resignation or removal.
7.1.2 Vacancies. Vacancies in the Class A Directors may be
filled by the affirmative vote of a majority of the remaining Class A Directors
then in office or by the affirmative vote of a plurality of the votes cast by
the holders of the issued and outstanding shares of Class A Common Stock.
Vacancies in the Class B Directors may be filled by the affirmative vote of a
majority of the remaining Class B Directors then in office or by the affirmative
vote of a plurality of the votes cast by the holders of the issued and
outstanding shares of Class B Common Stock. Directors so chosen shall hold
office for a term expiring at the next annual meeting of Stockholders or until
their respective successors are duly elected and qualified, subject to earlier
death, resignation or removal.
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7.2 Quorum and Acts of Directors.
7.2.1 Directors comprising at least a majority of the Board of
Directors must be present, in person or by telephone, at every meeting of the
Board of Directors to constitute a quorum. Subject to Section 7.2.2, the act of
a majority of the directors present, voting as a single class, at a meeting at
which a quorum is present shall be the act of the Board of Directors unless
otherwise provided by law, this Certificate of Incorporation or the By-Laws.
References in this Certificate of Incorporation to an action, request, approval
or ratification of directors means either the affirmative vote of a majority of
the directors present, voting as a single class, at a duly called and held
meeting of the Board or the unanimous consent of the directors.
7.2.2 Notwithstanding that no vote may be required or that a
lesser percentage vote may be specified by law, by the provisions of this
Certificate of Incorporation or the By-Laws or otherwise, the Corporation shall
not take, and shall not cause or permit PSF to take, any of the actions
specified in clauses (a) through (n) (collectively, "Supermajority Actions"), in
a single transaction or a series of related transactions, without the approval
of a majority of the Board of Directors then in office, including at least one
Class A Director and at least one Class B Director (herein, a "Supermajority
Vote"), unless, to the extent permitted by law, such action is approved by a
committee of the Board of Directors created pursuant to Section 141 of the
General Corporation Law of the State of Delaware of which at least one Class A
Director and one Class B Director are members and at least one Class A Director
and one Class B Director have approved such Supermajority Action:
(a) any Extraordinary Transaction other than an Extraordinary
Transaction pursuant to Section 7.3 of the Certificate of Incorporation a
Drag-Along Merger pursuant to Section 7.4 or a Cash-Out Option pursuant to
Section 7.5 of the Certificate of Incorporation.
(b) any engagement by a Restricted Company in any business
other than any business or businesses then being conducted by the Restricted
Companies, as such business(es) may from time to time develop, and any business
related thereto; provided that such related business or development does not
constitute a material change in the nature of the business(es) of the Restricted
Companies being conducted immediately following the Effective Time;
(c) the commencement by a Restricted Company of a voluntary
proceeding under title 11 of the United States Code, 11 U.S.C. Sections 101 et
seq. (the "Federal Bankruptcy Act") or any other similar federal or state law or
of any other proceeding to be adjudicated a bankrupt or insolvent, or the
consent (whether by action or inaction) by such Restricted Company to the entry
of a decree or order for relief in respect of such Restricted Company in an
involuntary proceeding under the Federal Bankruptcy Act or any other similar
federal or state law or to the commencement of any bankruptcy or insolvency
proceeding against such Restricted Company, or the filing by such Restricted
Company of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by such Restricted
Company to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of such Restricted Company or of any substantial part of the
property of such Restricted Company, or the
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making by such Restricted Company of an assignment for the benefit of creditors,
or the admission by such Restricted Company in writing of its inability to pay
its debts generally as they become due;
(d) any transaction between a Restricted Company, on the one
hand, and any Stockholder or any Affiliate of a Stockholder (other than the
Corporation and any of its controlled Affiliates), on the other hand, except (i)
an Extraordinary Transaction pursuant to Section 7.3 of the Certificate of
Incorporation, a Drag-Along Merger pursuant to Section 7.4 of the Certificate of
Incorporation or a Cash-Out Option pursuant to Section 7.5 of the Certificate of
Incorporation; (ii) a transaction or arrangement on terms substantially no less
favorable to such Restricted Company than those such Restricted Company could
obtain in a comparable arm's-length transaction with a Person not an Affiliate
of such Restricted Company; or (iii) the Grower Contract and all transactions
contemplated thereby;
(e) any declaration or payment of a dividend or distribution
(in any form, including cash, shares or assets) to the holders of Common Stock;
(f) any approval of any capital expenditure budget for a
Restricted Company or any material capital expenditure not authorized therein;
(g) any direct or indirect purchase or other acquisition by a
Restricted Company of assets constituting a division or business unit of any
Person (other than a wholly-owned Subsidiary of the Corporation), in each case
except for an Extraordinary Transaction pursuant to Section 7.3 of the
Certificate of Incorporation, Drag-Along Merger pursuant to Section 7.4 of the
Certificate of Incorporation or a Cash-Out Option pursuant to Section 7.5 of the
Certificate of Incorporation;
(h) any sale, lease, exchange, transfer or other disposition
(by merger, consolidation or otherwise) of any assets constituting a division or
business unit of a Restricted Company, in each case except for an Extraordinary
Transaction pursuant to Section 7.3 of the Certificate of Incorporation,
provided that this limitation shall not apply to transfers between the
Corporation and any of its controlled Affiliates or between or among any of the
Corporation's controlled Affiliates;
(i) any issuance or sale of any Equity Securities of a
Restricted Company to any Person (other than a Restricted Company) for
consideration below Fair Market Value except for Equity Securities issued to
officers, directors or employees of the Corporation or any of its controlled
Affiliates pursuant to a compensation or employee benefit plan or employment
contract or arrangement approved by a majority of the Board of Directors voting
together as a single class or a duly authorized committee thereof;
(j) any amendment to this Certificate of Incorporation or the
By-Laws of the Corporation in each case if such amendment would
disproportionately and adversely affect the Class A Stockholders in relation to
the Class B Stockholders;
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(k) any repurchase by the Corporation of shares of Common
Stock, other than (i) open market purchases, (ii) subject to Section 7.2.2(d) of
the Certificate of Incorporation, purchases of shares of Common Stock from
officers or directors of the Corporation, (iii) pursuant to arrangements
otherwise agreed to by a Supermajority Vote or (iv) any repurchase of shares of
Common Stock offered on the same terms and at the same price to all Class A
Stockholders in proportion to their respective holdings;
(l) any incurrence by a Restricted Company of indebtedness for
borrowed money (or guarantee of such indebtedness) in excess of $382,500,000 in
principal amount outstanding at any time;
(m) the formation of any subsidiary, unless the certificate of
incorporation, partnership agreement or other constituent document of such
subsidiary provides for at least one director, member or similar position to be
held by a designee of the Class A Directors and at least on director, member or
similar position to be held by a designee of the Class B Directors and that no
action that would require a Supermajority Vote pursuant to this Section 7.2.2 of
the Certificate of Incorporation, if taken by the Company, could be taken by
such Subsidiary without the approval of both such designees; or
(n) the entry into any agreement or arrangement to any of the
foregoing.
7.3 Extraordinary Transactions. Notwithstanding anything to the
contrary contained herein, the provisions of Section 7.2.2 shall not apply to
any Extraordinary Transaction if (a) the Board of Directors (i) by a majority
vote of the entire board, voting together as a single class, approves the terms
and conditions of such Extraordinary Transaction and (ii) receives a written
opinion from a nationally recognized investment banking firm, substantially to
the effect that the consideration to be received by the Stockholders (other than
any Significant Stockholder) in the Extraordinary Transaction is fair to them
from a financial point of view; and (b) the holders of a majority of the then
outstanding shares of Class A Common Stock shall have approved or adopted such
Extraordinary Transaction or the agreement relating thereto.
7.4 Drag-Along Merger. Notwithstanding anything to the contrary herein,
the provisions of Section 7.2.2 shall not apply to any Drag-Along Merger and the
Class A Stockholders shall not have the power to vote with respect to the
approval or adoption of a Drag-Along Merger or the merger agreement providing
therefor.
7.5 Cash-Out Option. Notwithstanding anything to the contrary herein,
the provisions of Section 7.2.2 shall not apply to any Cash-Out Option and Class
A Stockholders shall not have the power to vote with respect to the approval or
adoption of a Cash-Out Option or the merger agreement providing therefor.
ARTICLE VII
CREDITORS; STOCKHOLDERS
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Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its Stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or any creditor or Stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the Stockholders or class of Stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the Stockholders or class of Stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all
Stockholders or class of Stockholders of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE IX
DIRECTOR LIABILITY
No director of the Corporation shall be personally liable to the
Corporation or its Stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (a) for any breach of the director's
duty of loyalty to the Corporation or its Stockholders, (b) for acts or
omissions not in good faith or which involve fraud or intentional misconduct or
a knowing violation of law, (c) under Section 174 of the Delaware General
Corporation Law or (d) for any transaction from which the director derived any
improper personal benefits. If the Delaware General Corporation Law is hereafter
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
Stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation in respect of any action or omission
occurring prior to the time of such repeal or modification.
ARTICLE X
INDEMNIFICATION
10.1 Directors and Officers. To the extent not prohibited by law, the
Corporation shall indemnify any person who is or was made, or threatened to be
made, a party to any threatened, pending or completed Proceeding, including,
without limitation, an action by or in the right of
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the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a director or officer of the Corporation, or any constituent corporation or
limited liability company which was absorbed in a consolidation or merger by the
Corporation, or while a director or officer of the Corporation is or was serving
in any capacity at the request of the Corporation for any other Person, against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees and disbursements).
10.2 Reimbursement. The Corporation shall, from time to time, reimburse
or advance to any current or former director or officer entitled to
indemnification hereunder the funds necessary for payment of expenses, including
attorneys' fees and disbursements, incurred in connection with any Proceeding,
in advance of the final disposition of such Proceeding; provided, however, that,
if required by the General Corporation Law, such expenses incurred by or on
behalf of any current director or officer may be paid in advance of the final
disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such director or officer, to repay any such
amount so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right of appeal that such director or
officer is not entitled to be indemnified for such expenses.
10.3 Other Indemnification Rights. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article X shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses may
have or hereafter be entitled under any statute, this Certificate of
Incorporation, the By-laws of the Corporation, any agreement, any vote of
Stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
10.4 Coverage. The provisions of this Article X shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Article X is in effect, and any
former director, officer or member of a corporation or a limited liability
company which was absorbed by the corporation in a consolidation or merger, on
the other hand, pursuant to which the Corporation and each such director or
officer intend to be legally bound. No repeal or modification of this Article X
shall affect any rights or obligations with respect to any state of facts then
or theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts. The rights to indemnification and reimbursement or advancement of
expenses provided by, or granted pursuant to, this Article X shall continue as
to a person who has ceased to be a director or officer and shall inure to the
benefit of the executors, administrators, legatees and distributees of such
person. Any director or officer of the Corporation serving in any capacity (i)
another corporation of which a majority of the shares entitled to vote in the
election of its directors is held, directly or indirectly, by the Corporation or
(ii) any employee benefit plan of the Corporation or any corporation referred to
in clause (i) shall be deemed to be doing so at the request of the Corporation
10.5 Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the
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Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of any other Person, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of this Article X, the By-laws or under Section 145 of the Delaware
General Corporation Law or any other provision of law.
10.6 Enforcement. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article X
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
The burden of proving that such indemnification or reimbursement or advancement
of expenses is not appropriate shall be on the Corporation. Neither the failure
of the Corporation (including its disinterested directors, its independent legal
counsel and its Stockholders) to have made a determination that such
indemnification or reimbursement or advancement of expenses is proper in the
circumstances nor an actual determination by the Corporation (including its
disinterested directors, its independent legal counsel and its Stockholders)
that such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such proceeding.
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10.7 Governing Law. Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to this
Article X may elect to have the right to indemnification or reimbursement or
advancement of expenses interpreted on the basis of the applicable law in effect
at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time such indemnification or reimbursement or
advancement of expenses is sought. Such election shall be made, by a notice in
writing to the Corporation, at the time indemnification or reimbursement or
advancement of expenses is sought; provided, however, that if no such notice is
given, the right to indemnification or reimbursement or advancement of expenses
shall be determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.
ARTICLE XI
RESTRICTIONS ON OWNERSHIP OF SHARES BY NO-U.S. CITIZENS;
RESTRICTIONS ON TRANSFER
11.1 Restrictions on Ownership. No Person who acquires Shares after the
Effective Time and whose ownership of Shares would cause the Corporation to
become a Foreign Business shall at any time acquire or own, beneficially or of
record, any Shares. Without limiting the foregoing, and as a protective measure
intended to ensure that the Corporation does not become a Foreign Business, no
Person who is (i) an Alien or (ii) a Foreign Business shall at any time directly
or indirectly acquire or own in the aggregate more than 5% of the outstanding
Shares without the prior written approval of the Corporation.
11.2 Restrictions on Shares. If any Person acquires or owns Shares in
violation of Section 11.1, such Person shall forthwith dispose of such number of
Shares as will reduce its ownership of Shares to 5% or less of the outstanding
Shares or such lesser percentage as is required for the Corporation not to be a
Foreign Business. Such disposition shall be consummated within thirty days (or
such earlier date as the Corporation determines) of the date that the
Corporation notifies such Person that it is in violation of Section 11.1. If
such Shares are not disposed of within such period, (i) the Corporation shall
not be required or permitted to pay any distribution with respect to such Shares
held by such Person and (ii) such Person shall not be entitled to vote on any
matter, or otherwise participate in the management of the Corporation, with
respect to any Shares owned by it. In addition, the Corporation may, at any time
and in its sole discretion, redeem such Shares at their Fair Market Value. To
the extent permissible under the law, the redemption price for such Shares may
be paid in cash, property or rights, including securities of the Corporation or
other Person.
11.3 Tag-Along.
(a) Subject to Section 7.4, if prior to the Drag-Along Expiration Date,
a Class B Stockholder shall receive a bona fide offer from a Person that is not
an Affiliate of such Class B Stockholder (a "Third Party Purchaser") (or shall
have entered into a bona fide written agreement with such Person or Persons) to
purchase shares of Class B Common Stock (the "Offered
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Shares") that represent in excess of 50% of the shares of Class B Common Stock
held by such Class B Stockholder, then, as a condition to effecting a sale of
such Offered Shares to the Third Party Purchase, such Class B Stockholder shall
send written notice (the "Tag-Along Notice") to the Corporation and to each
holder of record of Class A Common Stock which shall state (i) the proposed
purchase price (the "Third Party Price") to be paid by the Third Party Purchaser
for the Offered Shares and the terms and conditions of such transaction, (ii)
the name of the Third Party Purchaser, and (iii) that the Class B Stockholder
shall sell the Offered Shares subject to the rights of each Class A Stockholder
contained in this Section 11.3.
(b) The Tag-Along Notice shall offer each Class A Stockholder the right
to include in such Class B Stockholder's sale to the Third Party Purchaser a pro
rata portion of the shares of Class A Common Stock held of record by such Class
A Stockholder (based on the proportion that such shares of Class A Common Stock
bears to the total number of issued and outstanding shares of Common Stock) for
a pro rata portion of the Third Party Price described in the Tag-Along Notice
and on the other terms and conditions described therein.
(c) The rights of each Class A Stockholder under this Section 11.3
shall be exercisable by written notice to such Class B Stockholder with a copy
to the Corporation given within 10 Business Days after delivery of the Tag-Along
Notice. The failure of any Class A Stockholder to so respond within such period
shall be deemed to be a waiver of its rights under this Section 11.3.
11.4 Restrictions on Transfer. Prior to the Transfer Restriction
Expiration Date, no Stockholder may sell or otherwise transfer shares of common
stock of the corporation, if after giving effect to such sale or other transfer,
any class of Equity Securities of the Corporation which is subject to Section
12(g) or Section 15(d) of the Act is held of record by 300 or more Persons. Any
such sale or transfer will be void ab initio and shall not be recognized by the
Corporation.
11.5 Legend. In accordance with Section 202 of the Delaware General
Corporation Law, the restrictions on ownership and transfer contained in this
Article XI shall be noted conspicuously on each certificate representing a share
of Common Stock.
ARTICLE XII
MEETING
Meetings of Stockholders may be held at such place or places within or
without the State of Delaware as the By-laws of the Corporation may provide.
ARTICLE XIII
BY-LAWS
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In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is hereby authorized, subject to Section
7.2.2(j), to make, alter or repeal the By-laws of the Corporation.
ARTICLE XIV
AMENDMENTS
Subject to Section 7.2.2(j), the Corporation reserves the right to
amend, alter or repeal any provision contained in this Certificate of
Incorporation in the manner now or hereafter prescribed by the Delaware General
Corporation Law; provided that any such amendment, alteration or repeal is
approved by the holders of a majority of the shares of issued and outstanding
Common Stock voting together as a single class; provided, further, that any
amendment to Section 7.2.2 shall have been approved by a Supermajority Vote of
the Board of Directors. All rights at any time conferred upon the Stockholders
of the Corporation by this Certificate of Incorporation are granted subject to
the provisions of this Article XIV.
ARTICLE XV
MISCELLANEOUS
15.1 Opt-out of Provision Regarding Business Combination with
Interested Stockholders. This Corporation elects not to be governed by Section
203 of the Delaware General Corporation Law.
15.2 Notices. All notices referred to herein shall be in writing, shall
be delivered personally or by first class mail, postage prepaid, and shall be
deemed to have been given when so delivered or mailed to this Corporation at its
principal executive offices and to any Stockholder at such Stockholders's
address as it appears in the stock records of this Corporation (unless otherwise
specified in a written notice to this Corporation by such Stockholder).
ARTICLE XVI
DURATION
The duration of the Corporation is to be perpetual.
ARTICLE XVII
DEFINITIONS
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Capitalized terms used herein, but otherwise defined herein, shall have
the following meanings:
17.1 "Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under direct or indirect common control with such
Person. For the purposes of this definition "control," when used with respect to
any Person, shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" shall
have means correlative to the foregoing; provided, however, that solely for
purposes of Section 7.5 and 17.8 hereof, "Affiliate" shall not include any
Person that would otherwise qualify as an Affiliate of CGC if, after giving
effect to the consummation of a Cash-Out Option with such Person, CGC shall not
have, directly or indirectly, materially greater control (in the aggregate) over
the entity surviving such Cash-Out Option than it had over the Corporation
immediately prior to the effective time of such Cash-Out Option.
17.2 "Alien" has the meaning ascribed thereto in Missouri Revised
Statutes 442.560-442.591 and any regulations promulgated thereunder.
17.3 "Beneficial Ownership" has the meaning ascribed to such term in
Rule 13d-3, as in effect at the Effective Time, promulgated under the Exchange
Act; "beneficially owns" and "beneficially owned" and like terms shall have
correlative meanings.
17.4 "Board of Directors" means the Board of Directors of the
Corporation as constituted from time to time.
17.5 "Business Day" means any day other than a Saturday, Sunday, or a
day when banks in New York City are authorized or required by law to be closed.
17.6 "By-Laws" means the by-laws of the Corporation, as amended from
time to time.
17.7 "Certificate of Incorporation" means the certificate of
incorporation of the Corporation, as amended from time to time.
17.8 "Cash-Out Option" means a merger of the Corporation with any
Person (other than CGC or any of its Affiliates) following receipt of a written
offer (a "Cash-Out Offer") at any time prior to November 9, 1998 from any Person
(other than CGC and any of its Affiliates); provided, that pursuant to the terms
of the agreement and plan of merger relating to such merger, each share of Class
A Common Stock outstanding immediately prior to the effective time of such
merger shall in such merger (subject to any appraisal rights under the General
Corporation Law of the State of Delaware) be converted into the right to receive
the Per Share Price.
17.9 "Class A Common Stock" has the meaning ascribed thereto in Article
V.
17.10 "Class B Common Stock" has the meaning ascribed thereto in
Article V.
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17.11 "Class A Stockholder" means, at any time, a holder of record of
any shares of Class A Common Stock at such time, as reflected in the
Corporation's records.
17.12 "Class B Stockholder" means, at any time, a holder of record of
any shares of Class B Common Stock at such time, as reflected in the
Corporation's records.
17.13 "Common Stock" means the Class A Common Stock and the Class B
Common Stock collectively.
17.14 "Distributions" means any dividend or distribution declared and
paid on the Common Stock or any class thereof in cash or property other than
shares of Common Stock.
17.15 "Drag-Along Expiration Date" means the earliest to occur of (i)
the date upon which the shares of Class A Common Stock of the Corporation are
authorized for listing or admitted for trading on a national securities exchange
registered under the Exchange Act or are quoted on NMS or (ii) the second
anniversary of the Effective Time.
17.16 "Drag-Along Merger" means a merger of the Corporation with any
Person following receipt of a written offer to effect such a merger received by
the Corporation prior to the Drag-Along Expiration Date; provided that each
share of Common Stock outstanding immediately prior to the effective time of
such merger converts into the right to receive case; and provided, further, that
each share of Common Stock converts into the same price per share.
17.17 "Effective Time" has the meaning ascribed thereto in the Merger
Agreement.
17.18 "Equity Securities" has the meaning ascribed to such term in Rule
405 promulgated under the Securities Act, and in any event including any
security having the attendant right to vote for directors or similar
representatives.
17.19 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
17.20 "Extraordinary Transaction" means (a) any merger (other than
pursuant to Section 253 of the General Corporation Law of the State of
Delaware), of a Restricted Company with or into any Person that is not a
wholly-owned Subsidiary of the Corporation other than any merger in which such
Restricted Company survives the merger and the Equity Securities of such
Restricted Company, that were outstanding immediately prior to such merger
remain outstanding after giving effect to such merger and no additional Equity
Securities shall be issued and outstanding after giving effect to such merger,
(b) any sale, lease or exchange of all or substantially all of the assets of a
Restricted Company to a Person that is not a direct or indirect wholly-owned
Subsidiary of the Corporation, (c) any liquidation of a Restricted Company into
a Person that is not a direct or indirect wholly-owned Subsidiary of the
Corporation or (d) any dissolution of a Restricted Company other than a
dissolution effected under Section 275(c) of the General Corporation Law of the
State of Delaware.
17.21 "Fair Market Value" means, with respect to any Equity Securities,
(i) the average closing sale price during the 20 trading days immediately
preceding the date in question of a
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share of such stock on the principal national securities exchange registered
under the Exchange Act on which such stock is listed or admitted to trading or,
if such stock is not listed on any such exchange, the average closing sale price
of a share of such Equity Securities during the 20 trading days immediately
preceding the date in question on the NMS or if not quoted on NMS, the average
of the bid and asked price per share on NASDAQ or, (ii) if no such quotations
are available, the fair market value on the date in question of a share of such
Equity Security as determined in good faith by a Supermajority Vote of the Board
of Directors.
17.22 "Federal Bankruptcy Act" has the meaning ascribed thereto in
Section 7.2.2(c).
17.23 "Foreign Business" means a foreign business as defined under
Missouri Revised Statutes Sections 442.560-442.591 and any regulations
thereunder.
17.24 "Grower Contract" means the Market Hog Contract Grower Agreement
dated as of May 13, 1998 between Continental Grain Company and the Corporation.
17.25 "Holdings" means PSF Holdings, L.L.C., a Delaware limited
liability company.
17.26 "Merger Agreement" means the Agreement and Plan of Merger dated
as of May 13, 1998 between the Corporation and Holdings.
17.27 "NASDAQ" means the Nasdaq Stock Market.
17.28 "NMS" means the National Market System of the NASDAQ.
17.29 "Per Share Price" is the amount equal to the Total Price divided
by the number of issued and outstanding shares of Class A Common Stock
immediately prior to the effective time of the Cash-Out Option, rounded to the
nearest whole cent.
17.30 "Person" means an individual, partnership, joint venture,
association, corporation, trust, estate, limited liability company, limited
partnership or any other legal entity.
17.31 "Preferred Stock" has the meaning ascribed thereto in Article V.
17.32 "Proceeding" means any and all action, suit or proceeding whether
civil, criminal, administrative or investigative other than any such action,
suit or proceeding against the Corporation or any of its Subsidiaries or
Affiliates commenced by a Person otherwise entitled to indemnification pursuant
to Article X (except an action, suit or proceeding brought to enforce such
Persons rights pursuant to Section 10.6 hereof).
17.33 "PSF" means Premium Standard Farms, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Corporation.
17.34 "Restricted Company" means the Corporation or any of its
Subsidiaries and "Restricted Companies" means the Corporation and its
Subsidiaries, collectively.
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17.35 "SEC" means the Securities and Exchange Commission.
17.36 "Securities Act" means the Securities Act of 1933, as amended.
17.37 "Shares" means (a) all classes of stock designated in the
Certificate of Incorporation as the Common Stock, par value $.01 per share, or
(b) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
17.38 "Significant Stockholder" means with respect to the Corporation
at any time, a Stockholder that, together with its controlled Affiliates,
beneficially owns more than 40% of the then issued and outstanding shares of
Common Stock.
17.39 "Stockholder" means the holder of record of any Common Stock.
17.40 "Subsidiary" means any corporation or other business entity
directly or indirectly controlled by the Corporation.
17.41 "Supermajority Actions" has the meaning ascribed thereto in
Section 7.2.2.
17.42 "Supermajority Vote" has the meaning ascribed thereto in Section
7.2.2.
17.43 "Total Price" means an amount equal to the sum of $175,175,000
plus the product of $17,517,500 multiplied by a fraction, the numerator of which
equals the number of days between the Effective Time and the effective time of
the Cash-Out Option and the denominator of which is 365.
17.44 "Transfer Restriction Expiration Date" means the first Business
Day following the Cash-Out Expiration Date, unless the Corporation shall have
received a Cash-Out Offer on or prior to such date, but a Cash-Out Option shall
not have been consummated on or prior to such date, in which case Transfer
Restriction Expiration Date means the earliest of (i) the date upon which the
Cash-Out Option is consummated, (ii) the date upon which a majority of the Class
B Directors rejects such Cash-Out Offer or (iii) the date upon which the
definitive agreement between the Corporation and the Person making the Cash-Out
Offer with respect to the Cash-Out Option shall have terminated without a
closing thereunder; provided that if none of the foregoing shall have
theretofore occurred, the Transfer Restriction Expiration Date shall mean May
14, 1999.
IN WITNESS WHEREOF, the undersigned incorporator has caused this
certificate to be executed this 8th day of May, 1998.
/s/ Mary E. Reidy
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Mary E. Reidy
Incorporator
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