Attached files
file | filename |
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10-K - FORM 10-K - BOB EVANS FARMS INC | l40075e10vk.htm |
EX-21 - EX-21 - BOB EVANS FARMS INC | l40075exv21.htm |
EX-23 - EX-23 - BOB EVANS FARMS INC | l40075exv23.htm |
EX-24 - EX-24 - BOB EVANS FARMS INC | l40075exv24.htm |
EX-31.2 - EX-31.2 - BOB EVANS FARMS INC | l40075exv31w2.htm |
EX-10.5 - EX-10.5 - BOB EVANS FARMS INC | l40075exv10w5.htm |
EX-32.1 - EX-32.1 - BOB EVANS FARMS INC | l40075exv32w1.htm |
EX-10.3 - EX-10.3 - BOB EVANS FARMS INC | l40075exv10w3.htm |
EX-31.1 - EX-31.1 - BOB EVANS FARMS INC | l40075exv31w1.htm |
EX-32.2 - EX-32.2 - BOB EVANS FARMS INC | l40075exv32w2.htm |
EX-10.31 - EX-10.31 - BOB EVANS FARMS INC | l40075exv10w31.htm |
EX-10.32 - EX-10.32 - BOB EVANS FARMS INC | l40075exv10w32.htm |
EX-10.23 - EX-10.23 - BOB EVANS FARMS INC | l40075exv10w23.htm |
EX-10.36 - EX-10.36 - BOB EVANS FARMS INC | l40075exv10w36.htm |
EX-10.25 - EX-10.25 - BOB EVANS FARMS INC | l40075exv10w25.htm |
EX-10.24 - EX-10.24 - BOB EVANS FARMS INC | l40075exv10w24.htm |
EXHIBIT 3.1
[This document represents the Companys Certificate of Incorporation
in restated format incorporating all amendments. This compiled document
has not been filed with the Delaware Secretary of State.]
in restated format incorporating all amendments. This compiled document
has not been filed with the Delaware Secretary of State.]
RESTATED CERTIFICATE OF INCORPORATION
OF REGISTRANT
RESTATED CERTIFICATE OF INCORPORATION
OF
BOB EVANS FARMS, INC.
_________________________________________
OF REGISTRANT
RESTATED CERTIFICATE OF INCORPORATION
OF
BOB EVANS FARMS, INC.
_________________________________________
FIRST: The name of the Corporation is Bob Evans Farms, Inc.
SECOND: The address of its registered office in the State of Delaware is No. 1209 Orange
Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall have authority to
issue is One Hundred Million (100,000,000), all of which shares shall be Common Stock of One Cent
($.01) par value.
The number of authorized shares may be increased or decreased by the affirmative vote of the
holders of a majority of the stock of the Corporation entitled to vote.
FIFTH: The name and mailing address of the sole incorporator [in 1985] is as follows:
NAME |
MAILING ADDRESS | |
G. Robert Lucas II |
41 South High Street | |
Columbus, Ohio 43215 |
The powers of the incorporator shall terminate upon the filing of this Certificate of
Incorporation. The names and address of the persons who shall serve as directors of the
Corporation until the first annual meeting of stockholders in 1986, or until their successors are
elected and qualified, shall be as follows:
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Daniel E. Evans, Robert L. Evans, Robert S. Wood, C. H. McKenzie, J. Tim Evans, Lawrence E.
Carroll, Larry C. Corbin, Keith P. Bradbury and Daniel A. Fronk, all of 3776 South High Street,
Columbus, Ohio 43207.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized:
To make, alter or repeal the By-Laws of the Corporation.
EIGHTH: Elections of directors need not be by written ballot unless the By-Laws of the
Corporation shall so provide.
Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may
provide. The books of the Corporation may be kept (subject to any provision contained in the
statutes) 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 By-Laws of the Corporation.
NINTH: 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.
TENTH: The provisions of this Article Tenth shall be applicable with respect to all Business
Combinations.
(A) Except as otherwise expressly provided in paragraph (B) of this Article Tenth, each
Business Combination shall require an affirmative Special Shareholder Vote. Such affirmative vote
shall be in addition to any other affirmative vote required by law or this Certificate of
Incorporation or the By-Laws of the Corporation, and shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or class vote may be specified, by law or
in any agreement with any national securities exchange or otherwise.
(B) The provisions of paragraph (A) of this Article Tenth shall not be applicable to any
particular Business Combination and such Business Combination shall require only such affirmative
vote, if any, as is required by law and any other provision of this Certificate of Incorporation or
the By-Laws of the Corporation, or any agreement with any national securities exchange or
otherwise, if all of the conditions specified in either of the following paragraphs (B)(1) or
(B)(2) shall have been satisfied with respect to any such Business Combination.
(1) (a) The terms of such Business Combination shall provide for Fair Consideration to
Shareholders; and
(b) A Proxy Statement describing the proposed Business Combination shall be mailed to all
holders of Voting Stock at least 30 days prior to the consummation of such Business Combination,
regardless of whether or not such Proxy Statement is required to be
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furnished to shareholders of the Corporation pursuant to the Exchange Act. The Proxy
Statement shall set out, in a prominent place, any expression as to the advisability or
inadvisability of such Business Combination that the Unrelated Directors, or any of them, may
choose to make and, if deemed advisable by a majority of the Unrelated Directors, the opinion of an
investment banking firm selected by a majority of the Unrelated Directors, at a meeting at which an
Unrelated Director Quorum is present, as to the fairness or lack of fairness of the terms of such
Business Combination, from the financial point of view of the holders of the outstanding shares of
capital stock of the Corporation other than the Acquirer and its Affiliates or Associates. Such
investment banking firm shall be paid a reasonable fee for its services by the Corporation.
(2) A majority of the Unrelated Directors shall have approved such Business Combination and
shall have determined, at a meeting at which an Unrelated Director Quorum is present, that the
terms of the Business Combination are fair from the financial point of view of the holders of the
outstanding shares of capital stock of the Corporation other than as to the Acquirer and its
Affiliates and Associates. Such approval and determination may be made prior to or subsequent to
the time that the Acquirer becomes an Acquirer.
(C) For the purposes of this Article Tenth, the following terms shall have the definitions
specified in this paragraph (C).
(1) The term Acquirer shall mean any person (other than the Corporation or any Subsidiary
and other than any profit sharing, employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with respect to any such plan when
acting in such capacity) who:
(a) Is the beneficial owner directly or indirectly, of twenty percent (20%) or more of the
Voting Stock;
(b) Is an Affiliate or Associate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner of twenty percent (20%)
or more of the Voting Stock; or
(c) Is at such time an assignee of or has otherwise succeeded to the beneficial ownership of
the shares of Voting Stock that were at any time within the two-year period immediately prior to
such time beneficially owned by any Acquirer, if such assignment or succession shall have occurred
in the course of a transaction or series of transactions not involving a public offering within the
meaning of the Securities Act of 1933 (except for any transactions governed by Rule 144 of the
Securities Act of 1933).
For the purposes of determining whether a person is an Acquirer pursuant to this paragraph
(C)(1), the number of shares of Voting Stock deemed to be outstanding shall include shares deemed
to be beneficially owned through application of paragraph (C)(4) but shall not include any other
shares of Voting Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
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(2) The terms Affiliate or Associate shall have the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934
(Exchange Act), as in effect at the date of the adoption of this Article Tenth (the term
registrant in said Rule 12b-2 meaning the Corporation or the Acquirer, as the case may be).
(3) The term Announcement Date shall have the meaning specified in paragraph (C)(10)(a)(i)
of this Article Tenth.
(4) A person shall be a beneficial owner and shall be deemed to have beneficial
ownership of any Voting Stock:
(a) Which such person or any of its Affiliates or Associates beneficially owns, directly or
indirectly, within the meaning of Rule 13d-3 of the General Rules and Regulations under the
Exchange Act;
(b) Which such person or any of its Affiliates or Associates has, directly or indirectly,
(i) the right to acquire (whether such right is exercisable immediately or only after the passage
of time), pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding; or
(c) Which are beneficially owned, directly or indirectly, by any other person with which
such person or any of its Affiliates or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock.
(5) The term Business Combination shall mean any one or more of the following
transactions:
(a) Any merger or consolidation of the Corporation or any Subsidiary with (i) any Acquirer
or (ii) any other corporation (whether or not itself an Acquirer) which is or after such merger or
consolidation would be an Affiliate or Associate of an Acquirer; or
(b) Any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) with any Acquirer, or any Affiliate or Associate of any
Acquirer, involving any assets or securities of the Corporation, any subsidiary of any Acquirer, or
any Affiliate or Associate of any Acquirer, having an aggregate Fair Market Value of $10,000,000 or
more; or
(c) The adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed at any time after any person becomes and continues to be an Acquirer; or
(d) Any reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether or not with or otherwise involving an
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Acquirer) that has the effect, directly or indirectly, of increasing the proportionate share of any
class of equity or convertible securities of the Corporation or any Subsidiary which is directly or
indirectly beneficially owned by any Acquirer or any Affiliate or Associate of any Acquirer; or
(e) Any agreement, contract or other arrangement providing for any one or more of the
actions specified in clauses (a) to (d) of this paragraph (C)(5).
(6) The term Common Stock shall mean those authorized and issued shares of capital stock
of the Corporation referred to as common shares or Common Stock in Article Fourth of this
Certificate of Incorporation.
(7) The term Unrelated Director means any member of the Board of Directors, while such
person is a member of the Board of Directors of the Corporation (the Board), who is neither an
Affiliate nor an Associate of the Acquirer (except solely by reason of such Director being a member
of the Board) and was a member of the Board prior to the time that the Acquirer became an Acquirer,
and any successor of an Unrelated Director, while such successor is a member of the Board, who is
neither an Affiliate nor an Associate of the Acquirer (except solely by reason of such Director
being a member of the Board), and is recommended or elected to succeed an Unrelated Director by a
majority of the then Unrelated Directors, provided that such recommendation or election shall only
be effective for the purposes of this paragraph (C)(7) if made at a meeting at which an Unrelated
Director Quorum is present.
(8) The term Unrelated Director Quorum means at least sixty percent (60%) of the number of
Unrelated Directors capable of exercising the powers conferred upon them under this Certificate of
Incorporation or the By-Laws of the Corporation or by law, but, in any case, not less than three
Unrelated Directors.
(9) The term Exchange Act shall have the meaning specified in paragraph (C)(2) of this
Article Tenth.
(10) The term Fair Consideration to Shareholders shall, with respect to any particular
Business Combination, mean that the terms of such Business Combination satisfy all of the following
conditions of this paragraph (C)(10).
(a) The aggregate amount of cash and the Fair Market Value of consideration other than cash
to be received per share by holders of Common Stock as of the date of the consummation of the
Business Combination in such Business Combination shall be at least equal to the highest amount
determined under the following clauses (i), (ii) and (iii) of this paragraph (C)(10)(a):
(i) (if applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers fees and as adjusted for any stock dividends, stock splits
or equivalent reclassifications to that effect) paid by or on behalf of the Acquirer for any share
of Common Stock in connection with the acquisition by the Acquirer of beneficial ownership of such
share (x) within the two- year period immediately prior to the first public
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announcement of the proposal of the Business Combination (the Announcement Date) or (y) in the
transaction in which it became an Acquirer, whichever is higher;
(ii) the Fair Market Value per share of the Common Stock on the Announcement Date or on the
date on which the Acquirer became an Acquirer (as adjusted for any stock dividend, stock split or
equivalent reclassification to that effect), whichever is higher; and
(iii) (if applicable) the price per share equal to the Fair Market Value per share of the
Common Stock determined pursuant to clause (ii) of this paragraph (C)(10)(a) multiplied by the
ratio of (x) the highest per share price (including any brokerage commissions, transfer taxes and
soliciting dealers fees) as determined pursuant to clause (i) of this paragraph (C)(10)(a), to (y)
the Fair Market Value per share of the Common Stock on the first day of the two-year period
immediately prior to the Announcement Date on which the Acquirer acquired beneficial ownership of
any share of Common Stock.
(b) The consideration to be received by holders of outstanding Common Stock shall be in cash
or in the same form as previously has been paid by or on behalf of the Acquirer in connection with
its direct or indirect acquisition of beneficial ownership of shares of Common Stock. If the
consideration so paid for shares of Common Stock varied as to form, the form of consideration for
shares of Common Stock shall be either cash or the form used to acquire beneficial ownership of the
highest number of shares of Common Stock previously acquired by the Acquirer.
(11) The term Fair Market Value means (a) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date in question of a share of such stock
on the principal United States securities exchange registered under the Exchange Act on which such
stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available the Fair Market Value on the date in
question of a share of such stock as determined by a majority of the Unrelated Directors; and (b)
in the case of property other than cash or stock, the Fair Market Value of such property on the
date in question as determined by a majority of the Unrelated Directors; provided that any such
determination by the Unrelated Directors shall only be effective if made at a meeting at which an
Unrelated Director Quorum is present.
In the event of any Business Combination in which the Corporation survives, the phrase
consideration other than cash to be received as used in conjunction with the term Fair Market
Value in paragraph (C)(11) of this Article Tenth shall include the shares of Common Stock or the
shares of any other class of Voting Stock retained by the holders of such shares.
(12) The term person shall mean any individual, firm, corporation or other entity and shall
include any group comprised of any person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement, arrangement or understanding,
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directly or indirectly, for the purpose of acquiring, holding, voting or disposing of beneficial
ownership of Voting Stock of the Corporation.
(13) The term Proxy Statement means a proxy or information statement complying with the
requirements of the Exchange Act and the rules and regulations thereunder, or any subsequent
provisions replacing such Act, rules or regulations.
(14) The term Special Shareholder Vote shall mean (a) the affirmative vote of eighty
percent (80%) of the votes entitled to be cast by all holders of Voting Stock, voting together as a
class, and (b) the affirmative vote of sixty- seven percent (67%) of the votes entitled to be cast
by all holders of Voting Stock other than the Acquirer and its Affiliates or Associates, voting
together as a single class; provided, that, in the event that it is judicially determined that the
requirement for the affirmative vote provided for in clause (b) of this paragraph (C)(14) is, for
any reason, invalid under applicable law, then the term Special Shareholder Vote shall mean only
the requirement for the affirmative vote provided for in clause (a) of this paragraph (C)(14).
However, no Special Shareholder Vote will be effective for the purposes of this Article Tenth
unless a Proxy Statement describing the Business Combination shall have been mailed to all holders
of Voting Stock at least 30 days prior to the date fixed for the Special Shareholder Vote
(regardless of whether or not such Proxy Statement is required to be furnished to the shareholders
of the Corporation pursuant to the Exchange Act).
(15) The term Subsidiary or Subsidiaries shall mean any corporation or corporations of
which a majority of any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of Acquirer set forth in
paragraph (C)(1), the term Subsidiary or Subsidiaries shall mean only a corporation of which a
majority of each class of equity security is owned directly or indirectly, by the Corporation.
(16) The term Voting Stock shall mean all of the shares of capital stock of the Corporation
authorized to be issued from time to time under this Certificate of Incorporation and outstanding
as of any particular time, which are generally entitled to vote with respect to the election of
directors.
(D) A majority of the Unrelated Directors acting at a meeting at which an Unrelated Director
Quorum is present shall have the power and duty to determine for the purposes of this Article Tenth
on the basis of information known to them after reasonable inquiry, (1) whether a person is an
Acquirer, (2) the number of shares of Voting Stock beneficially owned by any person, (3) whether a
person is an Affiliate or Associate of another, and (4) whether the assets that are the subject of
any Business Combination have, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $10,000,000 or more. Any such determination made in good faith shall be binding
and conclusive on all parties.
(E) Nothing contained in this Article Tenth shall be construed to relieve any Acquirer from any
fiduciary obligation imposed by law.
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(F) The fact that any Business Combination complies with the provisions of paragraph B of this
Article Tenth shall not be construed to impose any fiduciary duty, obligation or responsibility on
the Board, or any member thereof, to approve such Business Combination or recommend its adoption or
approval to the shareholders of the Corporation, nor shall such compliance limit, prohibit or
otherwise restrict in any manner the Board, or any member thereof, with respect to evaluation of or
actions and responses taken with respect to such Business Combination.
ELEVENTH: No director or former director of this Company shall be personally liable to this
Company or its stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this provision shall not eliminate or limit the liability of a director (i) for any
breach of the directors duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of the
law, (iii) under Section 174 of the Delaware General Corporation Law, which deals with the paying
of a dividend or the approving of a stock repurchase or redemption which is illegal under Delaware
General Corporation Law, or (iv) for any transaction from which the director derives an improper
personal benefit.
TWELFTH: Notwithstanding any other provisions of the Certificate of Incorporation or the
By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be
specified by law, the Certificate of Incorporation or the By-Laws of the Corporation), any Director
or the entire Board of Directors of the Corporation may be removed from office at any time, with or
without cause, but only by the affirmative vote of the holders of at least eighty percent (80%) of
all of the outstanding shares of capital stock of the Corporation entitled to vote on the election
of directors at a meeting of stockholders called for that purpose, except that if the Board of
Directors, by an affirmative vote of at least two-thirds (66 2/3%) of the entire Board of
Directors, recommends removal of a Director to the stockholders, such removal may be effected by
the affirmative vote of the holders of at least a majority of the outstanding shares of capital
stock of the corporation entitled to vote on the election of directors at a meeting of stockholders
for that purpose.
THIRTEENTH: Notwithstanding any other provisions of this Certificate of Incorporation or the
By-Laws of the Corporation (and notwithstanding the fact that a lesser percentage or separate class
vote may be specified by law, this Certificate of Incorporation or the By-Laws of the Corporation),
the affirmative vote of the holders of eighty percent (80%) or more of the votes entitled to be
cast by all holders of Voting Stock, voting together as a single class, shall be required to amend
or repeal, or adopt any provisions inconsistent with, Articles Tenth, Eleventh or Twelfth,
provided, that this Article shall not apply to, and such eighty percent (80%) vote shall not be
required for, (A) as to Article Tenth, any amendment, repeal or adoption unanimously recommended by
the Board of Directors of the Corporation if all of such directors are persons who would be
eligible to serve as Unrelated Directors within the meaning of paragraph (C)(7) of Article Tenth,
and (B) as to Articles Eleventh and Twelfth, any amendment, repeal or adoption unanimously
recommended by the Board of Directors of the Corporation.
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