EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
FLOWERS FOODS, INC.
I
The name of the corporation is Flowers Foods, Inc. (the "Corporation").
II
SECTION 1. Authorized Capital Stock. The Corporation shall have
the authority to issue not more than one hundred and twenty one million
(121,000,000) shares of capital stock consisting of one hundred and twenty
million (120,000,000) shares of Common Stock having a par value of $.01 per
share, and one million (1,000,000) shares of Preferred Stock of which: (i) one
hundred thousand (100,000) shares shall be designated Series A Junior
Participating Preferred Stock, having a par value per share of $100 (the
"Series A Preferred Stock") and (ii) nine hundred thousand (900,000) shares of
preferred stock, having a par value per share of $0.01 (the "Preferred Stock")
to be issued in one or more series, in the manner provided below."
The Board of Directors is hereby authorized to issue the shares of
undesignated 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 powers, preferences and rights and qualifications, limitations or
restrictions of all shares of such series. The authority of the Board of
Directors with respect to each series shall include, without limiting the
generality of the foregoing, the determination of any or all of the following:
(a) the number of shares of any series and the
designation to distinguish the shares of such series from the shares of
all other series;
(b) the voting powers, if any, and whether such voting
powers are full or limited in such series;
(c) the redemption provisions, if any, applicable to such
series, including the redemption price or prices to be paid;
(d) whether dividends, if any, shall be cumulative or
noncumulative, the dividend rate of such series, and the dates and
preferences of dividends on such series;
(e) the rights of such series upon the voluntary or
involuntary dissolution of, or upon any distribution of the assets of,
the Corporation;
(f) the provisions, if any, pursuant to which the shares
of such series are 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 or any other corporation,
and the price or prices or the rates of exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase
any securities of the Corporation or any other corporation;
(h) the provisions, if any, of a sinking fund applicable
to such series; and
(i) any other relative, participating, optional or other
special powers, preferences, rights, qualifications, limitations or
restrictions thereof;
all as shall be determined from time to time by the Board of Directors and
stated in the resolution or resolutions providing for the issuance of such
Preferred Stock (a "Preferred Stock Designation").
SECTION 2. Voting Entitlement. A holder of Common Stock shall be
entitled to one (1) vote on each matter submitted to a vote at a meeting of
shareholders for each share of the Common Stock held of record by such holder as
of the record date for such meeting. Except as may be provided by applicable
law, in these Articles of Incorporation or by the Board of Directors in a
Preferred Stock Designation, the Common Stock shall have the exclusive right to
vote for the election of directors and for all other purposes, and holders of
Preferred Stock shall not be entitled to receive notice of any meeting of
shareholders at which they are not entitled to vote or consent.
SECTION 3. Preemptive Rights. No holder of shares of any class
of stock shall have preemptive rights, and the Corporation shall have the right
to issue and to sell any shares of its Common Stock without first offering such
shares to any holder of shares of Common Stock of the Corporation.
III
SECTION 1. Designation and Amount. There shall be a series
designed as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock"). The number of shares constituting such series shall be
100,000 and such series shall have the rights and preferences and limitations
set forth below.
2
SECTION 2. Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock, in
preference to the holders of Common Stock and of any other junior
stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the payment date of any
quarterly dividend for the Common Stock, or if there should be no such
payment date, then on the 45th day after the end of each fiscal quarter
(each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (i) $50 or (ii) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock
of the Corporation or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time after
the date hereof declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be
automatically adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
subparagraph (a) of this Section 2 immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $50 per
share on the Series A Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares
of Series A Preferred Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to
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accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the
payment thereof.
SECTION 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred Stock shall entitle the
holder thereof to 1,000 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation shall at
any time after the date hereof declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be automatically
adjusted by multiplying such number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the
holders of shares of Series A Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one voting group on all
matters submitted to a vote of shareholders of the Corporation.
(c) Except as set forth herein, holders of Series A
Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote
with holders of Common Stock and any other capital stock of the
Corporation having general voting rights as set forth herein) for
taking any corporate action.
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SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(1) declare or pay dividends on, or make any
other distributions on, any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock;
(2) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and all
such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all
such shares are then entitled;
(3) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(4) purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
subsection (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
SECTION 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be
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reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
SECTION 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (a) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Stock, or (b) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time after
the date hereof declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (a) of the
preceding sentence shall be automatically adjusted by multiplying such amount by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
SECTION 7. Consolidation, Merger etc. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the date hereof declare or
pay any dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
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SECTION 8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
SECTION 9. Rank. The Series A Preferred Stock shall rank junior
with respect to payment of dividends and on liquidation to all other series of
the Corporation's Preferred Stock outstanding on the date hereof and to all such
other series that specifically provide that they shall rank senior to the Series
A Preferred Stock.
SECTION 10. Amendment. The Articles of Incorporation of the
Corporation shall not be amended in any manner that would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
IV
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Georgia Business
Corporation Code.
V
The Board of Directors shall have the power to make, amend and repeal
the Bylaws of the Corporation. Any Bylaws made by the Board of Directors under
the powers conferred hereby may be amended or repealed by the Board of Directors
(except as specified in any such Bylaw so made or amended) or by the
shareholders in the manner provided in the Bylaws of the Corporation. The
Corporation may in its Bylaws confer powers upon its Board of Directors in
addition to the foregoing and in addition to the powers and authorities
expressly conferred upon the Board of Directors by applicable law.
Notwithstanding anything contained in these Articles of Incorporation to the
contrary, unless otherwise required by applicable law, the affirmative vote of
the holders of at least 66-2/3% of the voting power of the then outstanding
shares of Common Stock shall be required to amend or repeal, or to adopt any
provisions inconsistent with, this Article V.
VI
Any action required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly called annual or special meeting of
shareholders of the Corporation or by the consent in writing of the holders of
at least 75% of the voting power of the then outstanding shares of Common Stock
entitled to vote on the action. Special meetings of shareholders of the
Corporation may be called only by the Chairman of the Board of Directors, or by
the Chairman of the Board of Directors or the Secretary within 10 days after
receipt of the written request of a majority of the total number of Directors
which the Corporation would have if there were no vacancies or upon receipt of
the written request of the holders of at least 75% of the voting power of the
then outstanding shares of Common Stock. At any annual meeting or special
meeting of shareholders of the Corporation, only such business shall be
conducted or considered as shall have been brought before such meeting in the
manner provided in the Bylaws of the
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Corporation. Notwithstanding anything contained in these Articles of
Incorporation to the contrary, unless otherwise required by applicable law, the
affirmative vote of at least 66-2/3% of the voting power of the then outstanding
shares of Common Stock shall be required to amend or repeal, or adopt any
provision inconsistent with this Article VI.
VII
SECTION 1. Number, Election and Terms of Directors. The number
of the Directors of the Corporation shall not be less than 3 nor more than 16
and shall be fixed from time to time in the manner described in the Bylaws.
The Directors shall be classified with respect to the time for which
they severally hold office into three classes, as nearly equal in number as
possible, designated Class I, Class II and Class III. The Directors first
appointed to Class I shall hold office for a term expiring at the annual meeting
of shareholders to be held in 2002, Directors first appointed to Class II shall
hold office for a term expiring at the annual meeting of shareholders to be held
in 2003 and the Directors first appointed to Class III shall hold office for a
term expiring at the annual meeting of shareholders to be held in 2004 with the
members of each class to hold office until their successors are elected and
qualified. Unless otherwise required by applicable law, at each succeeding
annual meeting of the shareholders of the Corporation, the successors of the
class of Directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of shareholders held in the third year following
the year of their election. Notwithstanding the foregoing, if at the time of any
annual meeting of shareholders, the Corporation is prohibited by applicable law
from having a classified Board of Directors, all of the Directors shall be
elected at such annual meeting for a one year term only. If at the time of any
subsequent annual meeting of shareholders the Corporation is no longer
prohibited by applicable law from having a classified Board of Directors, the
Board of Directors shall again be classified in accordance with the first
sentence of this paragraph, and at such annual meeting Directors initially shall
be elected to serve in either Class I, Class II or Class III to hold office for
a term expiring at the first, second or third succeeding annual meeting of the
shareholders, respectively; thereafter successors to each Class shall be elected
in accordance with the third sentence of this paragraph; such classified Board
of Directors at all times being subject to the immediately preceding sentence of
this paragraph. Elections of Directors need not be by written ballot unless
requested by the Chairman of the Board of Directors or by the holders of a
majority of the voting power of the then outstanding shares of Common Stock
present in person or represented by proxy at a meeting of the shareholders at
which Directors are to be elected.
SECTION 2. Nomination of Director Candidates. Advance notice of
shareholder nominations for the election of Directors shall be given in the
manner provided in the Bylaws of the Corporation.
SECTION 3. Newly Created Directorships and Vacancies. Unless
otherwise required by applicable law, newly created directorships resulting from
any increase in the number of Directors and any vacancies on the Board of
Directors resulting from death,
8
resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board of Directors, or by a sole remaining
Director. Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of Directors in
which the new directorship was created or the vacancy occurred and until such
Director's successor shall have been elected and qualified. No decrease in the
number of Directors constituting the Board of Directors shall shorten the term
of an incumbent Director.
SECTION 4. Removal. Unless otherwise required by applicable law,
any Director may be removed from office by the shareholders only for cause and
only in the manner provided in this Section 4 of Article VII. At any annual
meeting or special meeting of the shareholders of the Corporation, the notice of
which shall state that the removal of a Director or Directors is among the
purposes of the meeting, unless otherwise required by applicable law, the
affirmative vote of the holders of at least 66-2/3% of the voting power of the
then outstanding Common Stock may remove such Director or Directors for cause.
SECTION 5. Amendment, Repeal, Etc. Notwithstanding anything
contained in these Articles of Incorporation to the contrary, unless otherwise
required by applicable law, the affirmative vote of at least 66-2/3% of the
voting power of the then outstanding Common Stock shall be required to amend or
repeal, or adopt any provision inconsistent with, this Article VII.
VIII
In discharging the duties of their respective positions and in
determining what is believed to be in the best interests of the Corporation, the
Board of Directors, committees of the Board of Directors, and individual
Directors, in addition to considering the effects of any action on the
Corporation or its shareholders, may consider the interests of employees,
customers, suppliers and creditors of the Corporation and its subsidiaries, the
communities in which offices or other establishments of the Corporation and its
subsidiaries are located, and all other factors such Directors deem pertinent;
provided, however, that this Article VIII shall be deemed solely to grant
discretionary authority to the Directors and shall not be deemed to provide to
any constituency any right to be considered.
IX
A Director of the Corporation shall not be liable to the Corporation or
its shareholders for or with respect to any acts or omissions in the performance
of his duties as a Director, except to the extent such exemption from liability
or limitation thereof is not permitted under the Georgia Business Corporation
Code as currently in effect or as the same may be hereafter amended or under any
other applicable law currently or hereafter in effect. No amendment,
modification or repeal of this Article shall adversely affect any right or
protection of a Director that exists at the time of such amendment,
modification, or repeal.
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X
Each person who is or was or had agreed to become a Director or officer
of the Corporation, or each such person who is or was serving or who had agreed
to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a Director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation to the fullest
extent permitted by the Georgia Business Corporation Code or any other
applicable laws as presently or hereafter in effect. The right to
indemnification granted by this Article X shall include the right to be paid in
advance expenses incurred in defending a proceeding. The Corporation may, by
action of the Board of Directors, provide indemnification to other employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of Directors and officers. The right of indemnification provided
in this Article X shall not be exclusive of any other rights to which any person
seeking indemnification may otherwise be entitled, and shall be applicable to
matters otherwise within its scope irrespective of whether such matters arose or
arise before or after the adoption of this Article X. Without limiting the
generality or the effect of the foregoing, the Corporation may adopt Bylaws, or
enter into one or more agreements with any person, which provide for
indemnification greater or different than that provided in this Article X. No
amendment, modification or repeal of this Article shall adversely affect any
right or protection of a Director, officer, employee or agent that exists at the
time of such amendment, modification or repeal.
XI
Any issued and outstanding shares of stock of the Corporation which are
repurchased by the Corporation shall become treasury shares which shall be held
in treasury by the Corporation until resold or retired and canceled in the
discretion of the Board of Directors. Any treasury shares which are retired and
canceled shall constitute authorized but unissued shares.
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