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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
TEXAS ROADHOUSE, INC.
The undersigned, Sheila C. Brown, for the purpose of incorporating and
organizing a corporation under the General Corporation Law of the State of
Delaware, does hereby execute this Certificate of Incorporation and does hereby
certify as follows:
ARTICLE I
NAME
The name of the corporation is Texas Roadhouse, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is 9 East Loockerman Street, Suite 1B, Dover, Delaware 19901. The name
of its registered agent at such address is National Registered Agents, Inc.
ARTICLE III
PURPOSE
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 the State of Delaware.
ARTICLE IV
CAPITAL STOCK
The Corporation shall have the authority to issue One Thousand (1,000)
shares of $0.001 par value Class A Common Stock (the "Class A Common Stock"),
One Thousand (1,000) shares of $0.001 par value Class B Common Stock (the "Class
B Common Stock," and together with the Class A Common Stock, the "Common
Stock"), and One Thousand (1,000) shares of $0.001 par value Preferred Stock
(the "Preferred Stock"). The number of authorized shares of any class or classes
of stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a majority
of the voting power of the stock of the corporation entitled to vote,
irrespective of Del. Code Ann. tit. 8, Section 242(b)(2).
A statement of the designations of each class and the powers,
preferences and rights, and qualifications, limitations or restrictions thereof
is as follows:
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A. CLASS A COMMON STOCK
(1) DIVIDENDS. The holders of the Class A Common Stock shall be
entitled to receive, share for share with the holders of shares of Class B
Common Stock, such dividends if, as and when declared from time to time by the
Board of Directors. In the event that such dividend is paid in the form of
shares of Common Stock, holders of Class A Common Stock shall receive Class A
Common Stock and holders of Class B Common Stock shall receive Class B Common
Stock.
(2) LIQUIDATION. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the Class A Common Stock shall be entitled to
receive, share for share with the holders of shares of Class B Common Stock, all
the assets of the Corporation of whatever kind available for distribution to
stockholders, after the rights of the holders of the Preferred Stock have been
satisfied.
(3) VOTING. Each holder of Class A Common Stock shall be entitled to
one vote for each share of Class A Common Stock held as of the applicable date
on any matter that is submitted to a vote or for the consent of the stockholders
of the Corporation. Except as otherwise provided herein or by the General
Corporation Law of the State of Delaware, the holders of Class A Common Stock
and the holders of Class B Common Stock shall at all times vote on all matters
(including the election of directors) together as one class.
(4) REDESIGNATION. Upon the conversion of all of the outstanding
Class B Common Stock into shares of Class A Common Stock, the Class A Common
Stock shall be automatically redesignated as "Common Stock."
B. CLASS B COMMON STOCK
(1) DIVIDENDS. The holders of the Class B Common Stock shall be
entitled to receive, share for share with the holders of shares of Class A
Common Stock, such dividends if, as and when declared from time to time by the
Board of Directors. In the event that such dividend is paid in the form of
shares of Common Stock, holders of Class A Common Stock shall receive Class A
Common Stock and holders of Class B Common Stock shall receive Class B Common
Stock.
(2) LIQUIDATION. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of the
Corporation, the holders of the Class B Common Stock shall be entitled to
receive, share for share with the holders of shares of Class A Common Stock, all
the assets of the Corporation of whatever kind available for distribution to
stockholders, after the rights of the holders of the Preferred Stock have been
satisfied.
(3) VOTING. Each holder of Class B Common Stock shall be entitled to
ten votes for each share of Class B Common Stock held as of the applicable date
on any matter that is submitted to a vote or for the consent of the stockholders
of the Corporation. Except as otherwise provided herein or by the General
Corporation Law of the State of Delaware,
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the holders of Class A Common Stock and the holders of Class B Common Stock
shall at all times vote on all matters (including the election of directors)
together as one class.
(4) CONVERSION.
(a) Each share of Class B Common Stock shall be convertible into
one fully paid and nonassessable share of Class A Common Stock at the option of
the holder thereof at any time.
(b) Each share of Class B Common Stock shall automatically be
converted into one fully paid and nonassessable share of Class A Common Stock
upon the earliest of (i) the date such shares cease to be beneficially owned (as
such term is defined under Section 13(d) of the Securities Exchange Act of 1934,
as amended ("Section 13(d)") by W. Kent Taylor, (ii) the date that W. Kent
Taylor ceases to beneficially own (as such term is defined under Section 13(d))
at least 20% of the outstanding shares of Common Stock of the Company, (iii) the
death or "permanent and total disability" of W. Kent Taylor within the meaning
of 26 CFR 7.105-1 and (iv) June 30, 2009.
(c) The one-to-one conversion ratio for the conversion of the
Class B Common Stock into Class A Common Stock in accordance with Section 4(a)
and 4(b) of this Article IV shall in all events be equitably adjusted in the
event of any recapitalization of the Corporation by means of a stock dividend
on, or a stock split or combination of, outstanding Class A Common Stock or
Class B Common Stock, or in the event of any merger, consolidation or other
reorganization of the Corporation with another corporation.
(d) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Class A Common Stock,
solely for the purpose of effecting the conversion of the shares of Class B
Common Stock, such number of its shares of Class A Common Stock as shall from
time to time be sufficient to effect the conversion of all outstanding shares of
Class B Common Stock.
(e) If any shares of Class B Common Stock shall be converted
pursuant to this Section 4, the shares so converted shall be retired and
returned to the authorized but unissued shares of Class B Common Stock.
C. OTHER MATTERS AFFECTING SHAREHOLDERS OF CLASS A COMMON STOCK AND
CLASS B COMMON STOCK
In no event shall any stock dividends or stock splits or combinations
of stock be declared or made on Class A Common Stock or Class B Common Stock
unless the shares of Class A Common Stock and Class B Common Stock at the time
outstanding are treated equally and identically, except that such dividends or
stock splits or combinations shall be made in respect of shares of Class A
Common Stock and Class B Common Stock in the form of shares of Class A Common
Stock or Class B Common Stock, respectively.
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D. PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is expressly authorized, by resolution adopted
and filed in accordance with law, and with the consent of the holders of a
majority of the outstanding shares of Class B Common Stock, to fix the number of
shares in each series, the designation thereof, the powers (including voting
powers, full or limited, if any), the preferences and relative participating,
optional or other special rights thereof, and the qualifications or restrictions
thereon, of each series and the variations in such voting powers (if any) and
preferences and rights as between series. Any shares of any class or series of
Preferred Stock purchased, exchanged, converted or otherwise acquired by the
Corporation, in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock, without designation as
to series, and may be reissued as part of any series of Preferred Stock created
by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth in this Certificate of
Incorporation or in such resolution or resolutions.
ARTICLE V
BOARD OF DIRECTORS
The number of directors of the Corporation from time to time shall be
as fixed by, or in the manner provided in, the bylaws of the Corporation.
Effective upon the date of the closing of the Corporation's initial public
offering (the "Effective Date"), the directors shall be divided into 3 classes,
with the initial term of office of the first class to expire at the first annual
meeting of stockholders held after the Effective Date; the initial term of
office of the second class to expire at the second annual meeting of
stockholders held after the Effective Date; and the initial term of office of
the third class to expire at the third annual meeting of stockholders held after
the Effective Date. At each annual meeting of stockholders following such
initial classification and election, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the third succeeding annual meeting of the stockholders after their election,
and shall continue to hold office until their respective successors are elected
and qualified, except in case of the death, resignation, or removal of any
director. In the event of any increase in the number of directors fixed by the
Board of Directors, the additional directors shall be classified so that all
classes of directors have as nearly equal numbers of directors as may be
possible. In the event of any decrease in the number of directors, all classes
of directors shall be decreased equally as nearly as may be possible. Except as
may be provided by the terms of any series of Preferred Stock, each director of
the Corporation shall be entitled to one vote on each matter voted or acted upon
by the Board of Directors.
ARTICLE VI
LIMITATION OF 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; provided, however,
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that the foregoing shall not eliminate or limit the liability of a director (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
intentional misconduct or a knowing violation of the law; (c) under Section 174
of the General Corporation Law of the State of Delaware; or (d) for any
transaction from which the director derived an improper personal benefit. If the
General Corporation Law of the State of Delaware shall be amended to permit
further elimination or limitation of 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 General Corporation Law of the State of
Delaware as so amended. Any repeal or modification of this Article VI by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of, or increase
the liability of any director of the Corporation with respect to any acts or
omission occurring prior to, such repeal or modification.
ARTICLE VII
BYLAWS
The Board of Directors is expressly authorized to adopt, alter, amend
or repeal the Bylaws of the Corporation by affirmative vote of a majority of the
directors present at any regular or special meeting of the Board of Directors at
which a quorum is present. Any Bylaws made by the directors under the powers
conferred hereby may be altered, amended or repealed by the directors or by the
stockholders acting in accordance with the terms hereof or thereof.
Notwithstanding the foregoing and anything contained in this Certificate of
Incorporation to the contrary, Sections 2, 3, 9, 10 and 14 of Article II and
Sections 2, 3 and 5 of Article III of the Bylaws shall not be altered, amended
or repealed and no provision inconsistent therewith shall be adopted without the
affirmative vote of the holders of at least a majority of the voting power of
the shares of capital stock of the Corporation issued and outstanding and
entitled to vote, voting together as a single class.
ARTICLE VIII
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE IX
DURATION
The Corporation is to have perpetual existence.
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ARTICLE X
INDEMNIFICATION
The Corporation may indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or interstate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
ARTICLE XI
MEETINGS OF STOCKHOLDERS
Meetings of stockholders may be held within or without the State of
Delaware, as determined by the Board of Directors. The books of the Corporation
may be kept (subject to any provision contained in the Delaware General
Corporation Law) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the Bylaws of the
Corporation.
ARTICLE XII
RESERVATION OF RIGHTS
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the Delaware General Corporation Law, and all rights
conferred upon stockholders herein are granted subject to this reservation
above, provided that the rights of the Class B Common Stock may not be amended,
altered, changed or repealed without the approval of the holders of a majority
of the outstanding shares of Class B Common Stock.
ARTICLE XIII
REMOVAL OF A DIRECTOR
A director may be removed, at any time, either with or without cause,
by the affirmative vote of holders of a majority of the voting power of shares
of stock then entitled to vote with respect to the election of such director.
The name and address of the incorporator is Sheila C. Brown, General
Counsel, Texas Roadhouse Holdings LLC, 6040 Dutchmans Lane, Suite 400,
Louisville, Kentucky 40205.
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IN WITNESS WHEREOF, the undersigned, Sheila C. Brown, being the
incorporator hereinbefore named, do hereby further certify that the facts
hereinabove stated are truly set forth and, accordingly, I have hereunto set my
hand this 5th day of May, 2004.
/s/ SHEILA C. BROWN
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Sheila C. Brown,
Incorporator