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EXHIBIT 3.3
FORM OF
SECOND RESTATED
CERTIFICATE OF INCORPORATION
OF
ALL AMERICAN FOOD GROUP, INC.
Pursuant to the provisions of Section 14A:9-5(3) of the New Jersey
Business Corporation Act, All American Food Group, Inc. hereby executes the
following Restated Certificate of Incorporation.
FIRST: The name of the corporation is All American Food Group, Inc.
(the "Corporation").
SECOND: The purpose for which the Corporation is organized is to
engage in any activity within the purposes for which corporations may be
organized under the New Jersey Business Corporation Act, as the same currently
is in effect or may be amended from time to time, or under any successor
statute thereto.
THIRD: (a) The total number of shares which the Corporation shall
have authority to issue is Twenty-Four Million (24,000,000), consisting of
Twenty Million (20,000,000) shares of Common Stock, without par value, and Four
Million (4,000,000) shares of Preferred Stock without par value.
(b) The Board of Directors of the Corporation is authorized,
subject to any limitations prescribed by law to (a) divide the authorized
Preferred Stock in series, (b) determine the designation and number of shares
constituting each series so designated (and to decrease, but to not less than
the number of shares of such series then outstanding, or to increase, subject
to the availability of sufficient authorized shares, the number of shares of
any such series), and (c) determine the relative rights, preferences and
limitations of the shares of any series. Any and all such divisions and
determinations may be accomplished by amendment of this Second Restated
Certificate of Incorporation authorized and approved solely by the Board of
Directors. The Board of Directors is authorized to change the designation and
the relative rights, preferences and limitations of shares of any series
theretofore established, no shares of which have theretofore been issued;
provided, however, that the Board of Directors shall retain no authority,
absent an affirmative vote of the requisite majority of holders of Common Stock
and holders of the requisite majority of other classes of stock of the
Corporation, if any, entitled to vote
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thereon, to redesignate the Four Million (4,000,000) shares of Preferred Stock,
or any portion thereof, as stock of an undesignated class or as a class of
Common Stock.
FOURTH: To the fullest extent permitted by the New Jersey Business
Corporation Act as the same currently is in effect or may be amended from time
to time (but, with respect to any such amendment, only to the extent that such
amendment further limits the liability of officers and directors), or by any
successor statute thereto or other applicable law presently or hereafter in
effect, no director or officer of the Corporation shall be personally liable to
the Corporation or its shareholders for damages for breach of any duty owed to
the Corporation or its shareholders; provided, however, that, to the extent
required by applicable law, this ARTICLE FOURTH shall not relieve any person
from liability for any breach of duty based upon an act or omission (a) in
breach of such person's duty of loyalty to the Corporation or its shareholders,
(b) not in good faith or involving a knowing violation of law, or (c) resulting
in receipt by such person of an improper personal benefit. No amendment to or
repeal of this ARTICLE FOURTH, and no amendment, repeal or termination of
effectiveness of any law authorizing this ARTICLE FOURTH, shall apply to or
affect adversely any right or protection of any director or officer for or with
respect to any acts or omissions of such director or officer occurring prior to
the effectiveness of any such amendment, repeal or termination of
effectiveness.
FIFTH: Each person who (a) is, was, or agrees to become a director,
officer or trustee of the Corporation or any constituent corporation absorbed
by the Corporation in a consolidation or merger, (b) is or was serving or
agrees to serve, at the request of the Corporation or any such constituent
corporation, as a director, trustee, officer, employee or agent of any other
enterprise (including, without limitation, any employee benefit plan), or (c)
is or was the legal representative of any of the foregoing persons, shall be
entitled to be indemnified and to have paid by the Corporation on his behalf,
or to be reimbursed by the Corporation for, reasonable expenses in advance of
final disposition of a proceeding, in accordance with the By-Laws of the
Corporation, to the fullest extent permitted, and subject to such conditions as
may be imposed, from time to time, by the New Jersey Business Corporation Act
as the same currently is in effect or may be amended from time to time (but,
with respect to any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than were
available prior to such amendment), or by any successor statute thereto or
other applicable law presently or hereafter in effect. The Corporation shall
have the authority, with the approval of the Board of Directors, but shall not
be required, to provide indemnification and advancement of expenses to any
other "corporate agent" of the Corporation, as that term is defined in Section
14A:3-5(1)(a) of the New Jersey Business Corporation Act, as the same currently
is in effect or may be amended from time to time,
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or by any successor statute thereto or other applicable law, in accordance with
the By-Laws of the Corporation and the requirements of applicable law. Without
limiting the generality or the effect of the foregoing, the Corporation may
enter into one or more agreements with any person which provide for
indemnification broader than or different from the indemnification provided for
in this ARTICLE FIFTH, including, without limitation, indemnification against
liabilities and expenses incurred in proceedings by or in the right of the
Corporation. No amendment or repeal of this ARTICLE FIFTH shall adversely
affect any right or protection existing hereunder immediately prior to such
amendment or repeal.
SIXTH: The address of the Corporation's current registered office is
150 Elm Street, Westfield, New Jersey 07090. The name of the registered agent
at such address is Dwyer & Canellis.
SEVENTH: (a) The Board of Directors of the Corporation shall consist
of no less than three (3) nor more than fifteen (15) members. Subject to the
foregoing and to the rights of the holders of any series of Preferred Stock to
elect directors under specified circumstances, the number of Directors of the
Corporation shall be fixed by or in the manner prescribed by the By-Laws of the
Corporation and may be increased or decreased, from time to time, in the manner
prescribed by such By-Laws.
(b) The number of directors constituting the current Board of
Directors of the Corporation is three (3). The names and addresses of all
persons who presently are serving as such directors are:
NAME ADDRESS
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John Chitvanni 910 West Lake Street, Roselle, IL 60172
Chris Decker 9 Law Drive, 2nd Floor, Fairfield, NJ 07006
Andrew Thorburn 9 Law Drive, 2nd Floor, Fairfield, NJ 07006
(c) A majority of the directors constituting the whole
Board of Directors may remove one or more of the directors for cause and may
suspend one or more of the directors pending final determination that cause for
removal exists.
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(d) One or more of the directors of the Corporation may
be removed, but only for cause, by the shareholders by the affirmative vote of
a majority of the votes cast by the holders of shares entitled to vote for the
election of directors.
EIGHTH: Pursuant to Section 14A:9-5(6) of the New Jersey Business
Corporation Act, this Second Restated Certificate of Incorporation Shall become
effective on the date of filing thereof in the office of the Secretary of State
of the State of New Jersey.
IN WITNESS WHEREOF, this Second Restated Certificate of Incorporation
has been executed by Andrew Thorburn, the President of the Corporation, this
____ day of ____________, 1996.
All American Food Group, Inc.
By:
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Andrew Thorburn, President
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