Attached files
file | filename |
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10-K - FORM 10-K - TreeHouse Foods, Inc. | c55697e10vk.htm |
EX-32.2 - EX-32.2 - TreeHouse Foods, Inc. | c55697exv32w2.htm |
EX-32.1 - EX-32.1 - TreeHouse Foods, Inc. | c55697exv32w1.htm |
EX-31.2 - EX-31.2 - TreeHouse Foods, Inc. | c55697exv31w2.htm |
EX-21.1 - EX-21.1 - TreeHouse Foods, Inc. | c55697exv21w1.htm |
EX-23.1 - EX-23.1 - TreeHouse Foods, Inc. | c55697exv23w1.htm |
EX-31.1 - EX-31.1 - TreeHouse Foods, Inc. | c55697exv31w1.htm |
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
*****
TreeHouse Foods, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST:
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That the Board of Directors of said corporation duly adopted a resolution setting forth a proposed amendment of the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows: | |
RESOLVED, that Article Fourth of the Certificate of Incorporation of the Corporation is hereby deleted and replaced in its entirety with the following: | ||
FOURTH: The total number of shares of all classes of stock which the Company shall have authority to issue is 100,000,000 shares, consisting of (i) 90,000,000 shares of Common $0.01 par value per share (Common Stock), and (ii) 10,000,000 shares of preferred $0.01 par value per share (Preferred Stock). | ||
SECOND:
|
That thereafter, pursuant to resolution of its Board of Directors, the annual meeting of the stockholders of said corporation was duly called and held on April 30, 2009 upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting a majority of shares as required by statute were voted in favor of the amendment. | |
THIRD:
|
That the aforesaid amendment has been duly adopted in accordance with the applicable provisions of Sections 242 of the General Corporation Law of the State of Delaware. |
IN WITNESS WHEREOF, said TreeHouse Foods, Inc. has caused this Certificate to be executed
this 30th day of April, 2009.
TREEHOUSE FOODS, INC. | ||||||
By: | /s/ Thomas E. ONeill
|
|||||
Name: | Thomas E. ONeill | |||||
Title: | Corporate Secretary |
RESTATED CERTIFICATE OF INCORPORATION
OF
TREEHOUSE FOODS, INC.
INCORPORATED ON JANUARY 25, 2005
INCORPORATED ON JANUARY 25, 2005
UNDER THE NAME
DEAN SPECIALTY FOODS HOLDINGS, INC.
FIRST: The name of the Corporation is TreeHouse Foods, Inc.
SECOND: The address of the Corporations registered office in the State of
Delaware is Corporation Trust Center, 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 by
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.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 50,000,000 shares, consisting of (i)
40,000,000 shares of common stock, $.01 par value per share (Common Stock), and
(ii) 10,000,000 shares of preferred stock, $.01 par value per share (Preferred
Stock).
The following is a statement of the designations and the powers, privileges and
rights, and the qualifications, limitations or restrictions thereof in respect of
each class of capital stock of the Corporation.
A COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of the
Common Stock are subject to and qualified by the rights of the holders of the
Preferred Stock of any series as may be designated by the Board of Directors upon
any issuance of the Preferred
Stock of any series.
2. Voting. The holders of the Common Stock shall have voting rights at
all meetings of stockholders, each such holder being entitled to one vote for each
share thereof held by such holder; provided, however, that, except
as otherwise required by law, holders of Common Stock shall not be entitled to
vote on any amendment to this Restated Certificate of Incorporation (which, as used
herein, shall mean the certificate of incorporation of the Corporation, as amended
from time to time, including the terms of any certificate of designations of any
series of Preferred Stock) that relates solely to the terms of one or more
outstanding series of Preferred Stock if the holders of such affected series are
entitled, either separately or together as a class with the holders of one or more
other such series, to vote thereon pursuant to this Restated Certificate of
Incorporation. There shall be no cumulative voting.
The number of authorized shares of Common 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 stock of the Corporation entitled to vote, irrespective of the
provisions of Section 242(b)(2) of the General Corporation Law of the State of Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor as and when determined by the Board of Directors and
subject to any preferential dividend or other rights of any then outstanding Preferred
Stock.
4. Liquidation. Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets
of the Corporation available for distribution to its stockholders, subject to any preferential or other rights of any then outstanding Preferred Stock.
B PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each of such
series to have such terms as stated or expressed herein and in the resolution or resolutions
providing for the issue of such series adopted by the Board of Directors of the Corporation
as hereinafter provided. Any shares of Preferred Stock which may be redeemed, purchased or
acquired by the Corporation may be reissued except as otherwise provided by law.
Authority is hereby expressly granted to the Board of Directors from time to time to
issue the Preferred Stock in one or more series, and in connection with the creation of any
such series, by resolution or resolutions providing for the issuance of the shares thereof,
to determine and fix the number of shares of such series and such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative participating,
optional or other special rights, and qualifications, limitations or restrictions thereof,
including without limitation thereof, dividend rights, conversion rights, redemption
privileges and liquidation preferences, as shall be stated and expressed in such resolutions,
all to the full extent now or hereafter permitted by the General Corporation Law of the State
of Delaware. Without limiting the generality of the foregoing, the resolutions providing for
issuance of any series of Preferred Stock may provide that such series shall be superior or
rank equally or be junior to the Preferred Stock of any other series to the extent permitted
by law.
The number of authorized shares of Preferred Stock may be increased or decreased (but
not below the number of shares then outstanding) by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote, irrespective of the provisions of
Section 242(b)(2) of the General Corporation Law of the State of Delaware.
FIFTH: Except as otherwise provided herein, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute and this Restated
Certificate of Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
SIXTH: In furtherance and not in limitation of the powers conferred upon it by the laws
of the State of Delaware, and subject to the terms of any series of Preferred Stock, the
Board of Directors shall have the power to adopt, amend, alter or repeal the Corporations
By-laws. The affirmative vote of a majority of the directors present at any regular or
special meeting of the
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Board of Directors at which a quorum is present shall be required to adopt, amend, alter or repeal
the Corporations By-laws. The Corporations By-laws also may be adopted, amended, altered or
repealed by the affirmative vote of the holders of at least seventy-five percent (75%) of the votes
which all the stockholders would be entitled to cast in any annual election of directors or class
of directors, in addition to any other vote required by this Restated Certificate of Incorporation.
Notwithstanding any other provisions of law, this Restated Certificate of Incorporation or the
By-Laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least seventy-five percent (75%) of the votes
which all the stockholders would be entitled to cast in any annual election of directors or class
of directors shall be required to amend or repeal, or to adopt any provision inconsistent with,
this Article SIXTH.
SEVENTH: Except to the extent that the General Corporation Law of the State of Delaware
prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty,
no director of the Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision
of law imposing such liability except for liability (i) for any breach of the directors duty of
loyalty to the Corporation 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) pursuant to Section
174 (or any successor provision) of the General Corporation Law of the State of Delaware or (iv)
for any transaction from which the director derived an improper personal benefit. No amendment to
or repeal of this provision shall apply to or have any effect on the liability or alleged liability
of any director of the Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
EIGHTH: The Corporation shall provide indemnification as follows:
1. Actions, Suits and Proceedings Other than by or in the Right of the
Corporation. The Corporation shall indemnify each person who was or is a party or
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right
of the Corporation) by reason of the fact that he or she is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan) (all such persons being referred to hereafter as an
Indemnitee), or by reason of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by or on behalf of Indemnitee in connection with such action, suit
or proceeding and any appeal therefrom, if Indemnitee acted in good faith and in a manner which
Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a
presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the Corporation, and, with
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respect to any criminal action or proceeding, had reasonable cause to believe that his
or her conduct was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The Corporation
shall indemnify any Indemnitee who was or is a party to or threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to have been taken or
omitted in such capacity, against all expenses (including attorneys fees) and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf of
Indemnitee in connection with such action, suit or proceeding and any appeal therefrom, if
Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except that no indemnification shall be
made under this Section 2 in respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Corporation, unless, and only to the extent, that the Court
of Chancery of Delaware shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such expenses (including attorneys fees) which the Court of Chancery of
Delaware shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding any other
provisions of this Article, to the extent that an Indemnitee has been successful, on the merits or
otherwise, in defense of any action, suit or proceeding referred to in Sections 1 and 2 of this
Article EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from any such
action, suit or proceeding, Indemnitee shall be indemnified against all expenses (including
attorneys fees) actually and reasonably incurred by or on behalf of Indemnitee in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is disposed of, on
the merits or otherwise (including a disposition without prejudice), without (i) the
disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by Indemnitee, (iv) an adjudication
that Indemnitee did not act
in good faith and in a manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, and (v) with respect to any criminal proceeding, an adjudication that
Indemnitee had reasonable cause to believe his conduct was unlawful, Indemnitee shall be considered
for the purposes hereof to have been wholly successful with respect thereto.
4. Notification and Defense of Claim. As a condition precedent to an Indemnitees
right to be indemnified, such Indemnitee must notify the Corporation in writing as soon as
practicable of any action, suit, proceeding or investigation involving such Indemnitee for which
indemnity will or could be sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be entitled to participate therein at
its own expense and/or to assume the defense thereof at its own expense, with legal counsel
reasonably acceptable to Indemnitee. After notice from the Corporation to Indemnitee of its
election so to assume such defense, the Corporation shall not be liable to Indemnitee for any
legal or other expenses subsequently incurred by Indemnitee in connection with such action, suit,
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proceeding or investigation, other than as provided below in this Section 4. Indemnitee shall have
the right to employ his or her own counsel in connection with such action, suit, proceeding or
investigation, but the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the
employment of counsel by Indemnitee has been authorized by the Corporation, (ii) counsel to
Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on
any significant issue between the Corporation and Indemnitee in the conduct of the defense of such
action, suit, proceeding or investigation or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, suit, proceeding or investigation, in each of which
cases the fees and expenses of counsel for Indemnitee shall be at the expense of the Corporation,
except as otherwise expressly provided by this Article. The Corporation shall not be entitled,
without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for Indemnitee shall have reasonably made the conclusion
provided for in clause (ii) above. The Corporation shall not be required to indemnify Indemnitee
under this Article EIGHTH for any amounts paid in settlement of any action, suit, proceeding or
investigation effected without its written consent. The Corporation shall not settle any action,
suit, proceeding or investigation in any manner which would impose any penalty or limitation on
Indemnitee without Indemnitees written consent. Neither the Corporation nor Indemnitee will
unreasonably withhold or delay its consent to any proposed settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 of this Article
EIGHTH, in the event of any action, suit, proceeding or investigation of which the Corporation
receives notice under this Article, any expenses (including attorneys fees) incurred by or on
behalf of Indemnitee in defending an action, suit, proceeding or investigation or any appeal
therefrom shall be paid by the Corporation in advance of the final disposition of such matter;
provided, however, that the payment of such expenses incurred by or on behalf of Indemnitee
in advance of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of Indemnitee to repay all amounts so advanced in the event that it
shall ultimately be determined that Indemnitee is not entitled to be indemnified by the
Corporation as authorized in this Article; and further provided that no such advancement of
expenses shall be made under this Article EIGHTH if it is determined (in the manner described in
Section 6) that (i) Indemnitee did not act in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation, or (ii) with respect to any
criminal action or proceeding, Indemnitee had reasonable cause to believe his conduct was
unlawful. Such undertaking shall be accepted without reference to the financial ability of
Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or advancement
of expenses pursuant to Section 1, 2, 3 or 5 of this Article EIGHTH, an Indemnitee shall submit to
the Corporation a written request. Any such advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the Corporation of the written request of Indemnitee,
unless (i) the Corporation has assumed the defense pursuant to Section 4 of this Article EIGHTH
(and none of the circumstances described in Section 4 of this Article EIGHTH that would
nonetheless entitle the Indemnitee to indemnification for the fees and expenses of separate
counsel have occurred) or (ii) the Corporation determines within such 60-day period that Indemnitee
did not meet the applicable standard of conduct set forth in
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Section 1, 2 or 5 of this Article EIGHTH, as the case may be. Any such indemnification, unless
ordered by a court, shall be made with respect to requests under Section 1 or 2 only as authorized
in the specific case upon a determination by the Corporation that the indemnification of Indemnitee
is proper because Indemnitee has met the applicable standard of conduct set forth in Section 1 or
2, as the case may be. Such determination shall be made in each instance (a) by a majority vote of
the directors of the Corporation consisting of persons who are not at that time parties to the
action, suit or proceeding in question (disinterested directors), whether or not a quorum, (b) by
a committee of disinterested directors designated by majority vote of disinterested directors,
whether or not a quorum, (c) if there are no disinterested directors, or if the disinterested
directors so direct, by independent legal counsel (who may, to the extent permitted by law, be
regular legal counsel to the Corporation) in a written opinion, or (d) by the stockholders of the
Corporation.
7. Remedies. The right to indemnification or advancement of expenses as granted by
this Article shall be enforceable by Indemnitee in any court of competent jurisdiction. Neither
the failure of the Corporation to have made a determination prior to the commencement of such
action that indemnification is proper in the circumstances because Indemnitee has met the
applicable standard of conduct, nor an actual determination by the Corporation pursuant to Section
6 of this Article EIGHTH that Indemnitee has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that Indemnitee has not met the applicable
standard of conduct. Indemnitees expenses (including attorneys fees) reasonably incurred in
connection with successfully establishing Indemnitees right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the Corporation.
8. Limitations. Notwithstanding anything to the contrary in this Article, except as
set forth in Section 7 of the Article EIGHTH, the Corporation shall not indemnify an Indemnitee
pursuant to this Article EIGHTH in connection with a proceeding (or part thereof) initiated by
such Indemnitee unless the initiation thereof was approved by the Board of Directors of the
Corporation. Notwithstanding anything to the contrary in this Article, the Corporation shall not
indemnify an Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of
insurance, and in the event the Corporation makes any indemnification payments to an Indemnitee
and such Indemnitee is subsequently reimbursed from the proceeds of insurance, such Indemnitee
shall promptly refund indemnification payments to the Corporation to the extent of such insurance
reimbursement.
9. Subsequent Amendment. No amendment, termination or repeal of this Article or of
the relevant provisions of the General Corporation Law of the State of Delaware or any other
applicable laws shall affect or diminish in any way the rights of any Indemnitee to indemnification
under the provisions hereof with respect to any action, suit, proceeding or investigation arising
out of or relating to any actions, transactions or facts occurring prior to the final adoption of
such amendment, termination or repeal.
10. Other Rights. The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under any law (common or statutory),
agreement or vote of stockholders or disinterested directors or otherwise, both as to action in
Indemnitees official capacity and as to action in any other capacity while holding
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office for the Corporation, and shall continue as to an Indemnitee who has ceased to be a director
or officer, and shall inure to the benefit of the estate, heirs, executors and administrators of
Indemnitee. Nothing contained in this Article shall be deemed to prohibit, and the Corporation is
specifically authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this Article. In addition,
the Corporation may, to the extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those set forth in this
Article.
11. Partial Indemnification. If an Indemnitee is entitled under any provision of this
Article to indemnification by the Corporation for some or a portion of the expenses (including
attorneys fees), judgments, fines or amounts paid in settlement actually and reasonably incurred
by or on behalf of Indemnitee in connection with any action, suit, proceeding or investigation and
any appeal therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify Indemnitee for the portion of such expenses (including attorneys fees),
judgments, fines or amounts paid in settlement to which Indemnitee is entitled.
12. Insurance. The Corporation may purchase and maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
plan) against any expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General Corporation Law of the State of
Delaware.
13. Savings
Clause. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify
each Indemnitee as to any expenses (including attorneys fees), judgments, fines and amounts paid
in settlement in connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the Corporation, to the
fullest extent permitted by any applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and Section 145(i)
of the General Corporation Law of the State of Delaware shall have the respective meanings
assigned to such terms in such Section 145(h) and Section 145(i).
NINTH: This Article is inserted for the management of the business and for the conduct of
the affairs of the Corporation.
1. General Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
2. Number of Directors; Election of Directors. Subject to the rights of holders of
any series of Preferred Stock to elect directors, the number of directors of the Corporation shall
be established by a majority of the entire Board of Directors except that such number shall be not
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less than three (3) nor more than fifteen (15), the initial number to be seven (7) until otherwise
determined by resolution adopted by a majority of the entire Board of Directors. Election of
directors need not be by written ballot, except as and to the extent provided in the By-laws of the
Corporation.
3. Classes of Directors. Subject to the rights of holders of any series of Preferred
Stock to elect directors, the Board of Directors shall be and is divided into three classes: Class
I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of
the total number of directors constituting the entire Board of Directors.
4. Terms of Office. Subject to the rights of holders of any series of Preferred Stock
to elect directors, each director shall serve for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected; provided, that each
director initially appointed to Class I shall serve for a term expiring at the Corporations annual
meeting of stockholders held in 2006; each director initially appointed to Class II shall serve
for a term expiring at the Corporations annual meeting of stockholders held in 2007; and each
director initially appointed to Class III shall serve for a term expiring at the Corporations
annual meeting of stockholders held in 2008; provided further, that the term of each director
shall continue until the election and qualification of his or her successor and be subject to his
or her earlier death, resignation, disqualification or removal.
5. Removal. Subject to the rights of holders of any series of Preferred Stock,
directors of the Corporation may be removed only for cause and only by the affirmative vote of the
holders of at least seventy-five percent (75%) of the votes which all the stockholders would be
entitled to cast in any annual election of directors or class of directors.
6. Vacancies. Subject to the rights of holders of any series of Preferred Stock, any
vacancy or newly created directorships in the Board of Directors, however occurring, shall be filled only by vote of a majority of the directors then in office, although less than a quorum, or
by a sole remaining director and shall not be filled by the stockholders. A director elected to
fill a vacancy shall hold office until the next election of the class for which such director
shall have been chosen, subject to the election and qualification of a successor and to such
directors earlier death, resignation, disqualification or removal.
7. Amendments to Article. Notwithstanding any other provisions of applicable law,
this Restated Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding
the fact that a lesser percentage may be specified by applicable law, the affirmative vote of the
holders of at least seventy-five percent (75%) of the votes which all the stockholders would be
entitled to cast in any annual election of directors or class of directors represented at a meeting
of stockholders at which a quorum is present (as provided in the By-laws of the Corporation) shall
be required to amend or repeal, or to adopt any provision inconsistent with, this Article NINTH.
TENTH: Stockholders of the Corporation may not take any action by written consent in lieu of a
meeting. Notwithstanding any other provisions of applicable law, this Restated Certificate of
Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesser
percentage may be specified by applicable law, the affirmative vote of the holders of at least
seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast
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in any annual election of directors or class of directors represented at a meeting of stockholders
at which a quorum is present (as provided in the By-laws of the Corporation) shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Article TENTH.
ELEVENTH: Special meetings of stockholders for any purpose or purposes may be called at any
time by the Board of Directors, the Chairman of the Board or the President, but such special
meetings may not be called by any other person or persons. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in
the notice of meeting. Notwithstanding any other provision of applicable law, this Restated
Certificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that a
lesser percentage may be specified by law, the affirmative vote of the holders of at least
seventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in any
annual election of directors or class of directors represented at a meeting of stockholders at
which a quorum is present (as provided in the By-laws of the Corporation) shall be required to
amend or repeal, or to adopt any provision inconsistent with, this Article ELEVENTH.
[signature page follows]
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IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which restates,
integrates and amends the certificate of Incorporation of the Corporation, and which has been duly
adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware, has been executed by its duly authorized officer this 14th day of June, 2005.
TREEHOUSE FOODS, INC. |
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By: | /s/ Thomas E. ONeill | |||
Name: | Thomas E. ONeill | |||
Title: | Senior Vice President, General Counsel and Chief Administrative Officer |
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