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EXHIBIT 3.1
CERTIFICATE
OF INCORPORATION
OF
CKE
RESTAURANTS, INC.
AS
AMENDED EFFECTIVE DECEMBER 9, 1997
ARTICLE
I
Name
The name
of the Corporation is CKE Restaurants, Inc.
ARTICLE
II
Definitions
For
purposes of this Certificate of Incorporation, the following terms shall have
the meanings indicated, and all capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in Section 203(c) of
the Delaware General Corporation Law, as in effect on the date
hereof:
(A) “Beneficially
Owns” has the meaning set forth in Rule 13d-3 under the Securities Exchange
Act of 1934 as in effect on January 1, 1994.
(B) “Board”
means the Board of Directors of the Corporation.
(C) “Business
Combination” shall have the meaning ascribed to it in Section 203(c)(3) of
the Delaware General Corporation Law; provided, however, that for
purposes hereof the term “interested stockholder” appearing therein shall have
the meaning ascribed to it in Article II(D) hereof.
(D) “Interested
Stockholder” means any Person (other than the Corporation and any direct or
indirect majority-owned subsidiary of the Corporation) that
(1) Beneficially Owns 5% or more of the outstanding Voting Stock, or
(2) is an Affiliate or Associate of the Corporation and Beneficially Owned
5% or more of the outstanding Voting Stock at any time within the three-year
period immediately prior to the date on which it is sought to be determined
whether such Person is an Interested Stockholder, or (3) is an Affiliate or
Associate of a Person described in (1) or (2) preceding; provided, however, that the
term “Interested Stockholder” shall not include (i) any Person who
(a) Beneficially Owned shares in excess of the 5% limitation set forth
herein as of the first date upon which shares of Voting Stock of the Corporation
are held of record or beneficially by more than one hundred (100) stockholders
and continued to Beneficially Own shares in excess of such 5% limitation or
would have Beneficially Owned such shares but for action by the Corporation or
(b) acquired such shares from a Person described in (a) above by gift,
inheritance or in a transaction in which no consideration was exchanged; or
(ii) any Person whose ownership of shares in excess of the 5% limitation
set forth herein is the result of action taken solely by the Corporation,
provided that such Parson shall be an Interested Stockholder if thereafter such
Person acquires additional shares of Voting Stock except as a result of further
corporate action not caused, directly or indirectly, by such
Person. For the purpose of determining whether a Parson is an
Interested Stockholder, (1) the Voting Stock deseed to be outstanding shall
include stock deemed to be owned by the Person through application of
Section 203(c)(3) of the Delaware General Corporation Law, except that the
Voting Stock deemed to be outstanding shall not include any other unissued stock
of the Corporation which may be issuable pursuant to any agreement, arrangement
or understanding, or upon exercise of conversion rights, warrants or options, or
otherwise, and (2) a Person engaged in business as an underwriter of
securities shall not be deemed to own any Voting Stock acquired through such
Person’s participation in good faith in a firm commitment underwriting until the
expiration of 40 days after the date of such acquisition.
(E) “Voting
Stock” means stock of the Corporation of any class or series entitled to vote
generally in the election of directors of the Corporation, and each reference
herein to a percentage or portion of shares of Voting Stock shall refer to such
percentage or portion of the votes entitled to be cast by the holders of such
shares.
ARTICLE
III
Registered
Office
The
address of the registered office of the Corporation in the State of Delaware is
Corporation Service Company, 1013 Centre Road, City of Wilmington, County of New
Castle and the name of its registered agent at that address is corporation
Service Company.
ARTICLE
IV
Purpose
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation
Law.
ARTICLE
V
Authorized
Capital Stock
SECTION
1. Number of Authorized
Shares. The Corporation shall be authorized to issue two
classes of shares of stock to be designated, respectively, “Common Stock” and
“Preferred Stock;” the total number of shares of all classes of stock that the
Corporation shall have authority to issue is One Hundred Five Million
(105,000,000) shares, consisting of One Hundred Million (100,000,000) shares of
Common Stock, par value $.01 per share, and Five Million (5,000,000) shares of
Preferred Stock, par value $.01 per share.”
SECTION
2. Preferred
Stock. Shares of Preferred Stock may be issued from time to
time in one or more series. Shares of Preferred Stock that are
redeemed, purchased or otherwise acquired by the Corporation may be reissued
except as otherwise provided by law. The Board is hereby authorized
to fix or alter the designations, powers and preferences, and relative,
participating, optional or other rights, if any, and qualifications limitations
or restrictions thereof, including, without limitation, dividend rights (and
whether dividends are cumulative), conversion rights, if any, voting rights
(including the number of votes, if any, per share, as well as the number of
members, if any, of the Board or the percentage of members, if any, of the Board
each class or series of Preferred Stock may be entitled to elect), rights and
terms of redemption (including sinking fund provisions, if any), redemption
price and liquidation preferences of any wholly unissued series of Preferred
Stock, and the number of shares constituting any such series and the designation
thereof, and to increase or decrease the number of shares of any such series
subsequent to the issuance of Shares of such series, but not below the number of
shares of such series than outstanding. Notwithstanding the
foregoing, the Board shall have no power to alter the rights of any shares of
Preferred Stock then outstanding.
SECTION
3. Distributions Upon
Liquidation. In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
after payment of provision for payment of the debts and other liabilities of the
Corporation, the holders of each series of Preferred Stock shall be entitled to
receive, out of the net assets of the Corporation, an amount for each share of
such series of Preferred Stock equal to the amount fixed and determined by the
Board in the resolution or resolutions creating such series and providing for
the issuance of such shares, and no more, before any of the assets of the
Corporation shall be divided among and paid to the holders of shares of Common
Stock. If, upon such dissolution, liquidation or winding up, the
assets of the corporation distributable as aforesaid among the holders of
Preferred Stock of all series shall be insufficient to permit full payment to
them of said preferential amounts, then such assets shall be distributed ratably
among such holders of Preferred Stock in proportion to the respective total
amounts which they shall be entitled to receive as provided in this
Section 3.
ARTICLE
VI
Annual
Meetings of Stockholders
The
annual meeting of stockholders shall be held at such time, on such date and at
such place (within or without the State of Delaware) as provided in the Bylaws
of the Corporation. Subject to any requirement of applicable law, the
books of the Corporation may be kept outside the State of Delaware at such place
or places as may be designated from time to time by the Board or in the Bylaws
of the Corporation. Elections of directors need not be by written
ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE
VII
Call
of Special Meetings of Stockholders
Special
meetings of stockholders of the Corporation to any purpose or purposes may be
called at any time by a majority of the members of the Board of Directors or by
a committee of the Board of Directors that has been duly designated by the Board
of Directors and whose power and authority, as provided in a resolution adopted
by the Board of Directors or in the Bylaws of the Corporation, includes the
power to call such meetings, but such special meetings of stockholders of the
Corporation may not be called by any other Person or Persons or in any other
manner; provided, however, that if and
to the extent that any special meeting of stockholders may be called by any
other Person or Persons specified in any certificate of designations filed under
Section 151(g) of the Delaware General Corporation Law (or its successor
statute as in effect from time to time), then such special meeting may also be
called by the Person or Persons, in the manner, at the times and for the
purposes so specified.
ARTICLE
VIII
Number
of Directors
SECTION
1. Number of
Directors. The number of directors that shall constitute the
whole Board shall be as specified in the Bylaws of the Corporation, as the same
may be amended from time to time. Notwithstanding the foregoing,
during any period in which the holders of any one or more series of Preferred
Stock, voting as a class, shall be entitled to elect a specific number of
directors by reason of dividend arrearages or other contingencies giving thee
the right to do so, than and during such time as such right continues,
(A) the then otherwise authorized number of directors shall be increased by
such specified number of directors and the holders of shares of such series of
Preferred Stock, voting as a class, shall be entitled to elect such specified
number of directors in accordance with the procedure sat forth in the resolution
or resolutions of the Board creating such series and providing for the issuance
of such shares and (B) each such additional director shall serve until his
or her successor shall be elected and shall qualify, or until his or her right
to hold such office terminates pursuant to the resolution or resolutions of the
Board creating such series of Preferred Stock and providing for the issuance of
shares of such series, whichever occurs earlier. Whenever the holders
of shares of such series of Preferred Stock are divested of such right to elect
directors pursuant to the resolution or resolutions of the Board creating such
series and providing for the issuance of such shares, the terms of office of all
directors elected by the holders of such series of Preferred Stock pursuant to
such rights, or elected to fill any vacancies resulting from the death,
resignation or removal of directors so elected by the holders of such series,
shall forthwith terminate and the authorized number of directors shall be
reduced accordingly.
SECTION
2. Cumulative
Voting. Except as otherwise provided in this Certificate of
Incorporation, all rights to vote and all voting power shall be exclusively
vested in the Common Stock of the Corporation, and the holders thereof shall be
entitled at all elections of directors to as many votes as shall equal the
number of votes that (except for this provision as to cumulative voting) he or
she would be entitled to cast for the election of directors with respect to his
or her shares of stock multiplied by the number of directors to be elected, and
such holder may cast all of such votes for a single director or say distribute
them among the number to be voted for, or for any two or more of them as he or
she may see fit, and to one vote for each share upon all other
matters.
ARTICLE
IX
Stockholder
Action by Written Consent
Any
election of directors or other action by the stockholders of the Corporation say
be effected at an annual or special meeting of stockholder, and may not be
effected by written consent without a meeting.
ARTICLE
X
Election
of Directors
SECTION
1. Classified
Board. Except to the extent otherwise provided in any
certificate of designations filed under Section 151(g) of the Delaware
General Corporation Law (or its successor statute as in effect from time to
time), the Board of Directors shall be and is divided into three classes, Class
I, Class II and Class III. Such classes shall be as nearly equal in
number of directors as reasonably possible. Each director shall serve
for a term ending on the third annual meeting following the annual meeting at
which such director was elected, provided, however, that the directors first
elected to Class I shall serve for a term ending on the annual meeting date next
following the end of calendar year 1994, the directors first elected to Class II
shall serve for a term ending on the second annual resting date next following
the and of calendar year 1994, and the directors first elected to Class III
shall serve for a term ending on the third annual meeting date next following
the end of calendar year 1994. The foregoing notwithstanding, each
director shall serve until his successor shall have been duly elected and
qualified unless he shall resign, become disqualified or shall otherwise be
removed.
At each
annual election, the directors chosen to succeed those terms then expiring shall
be of the same class of the directors they succeed unless, by reason of any
intervening changes in the authorized number of directors, the designated board
shall designate one or more directorships whose term then expires as
directorships of another class in order more nearly to achieve equality of
number of directors among the classes. If a director dies, resigns or
is removed, the director chosen to fill the vacant, directorship shall be of the
same clime at the director he succeeds, unless, by reason of any previous
changes in the authorized number of directors, the Board shall designate such
vacant directorship as a directorship of another class in order more nearly to
achieve equality in the number of directors among the classes.
Notwithstanding
the rule that the three classes shall be as nearly equal in number of directors
as reasonably possible, in the event of any change in the authorized number of
directors, each director then continuing to serve as such shall nevertheless
continue as a director of the class of which he is a member until the expiration
of his current term or his prior death, resignation or removal. If
any newly created directorship may, consistently with the rule that the three
classes shall be as nearly equal in number of directors as reasonably possible,
be allocated to one of two or more classes, the Board shall allocate it to that
of the available classes whose term of office is due to expire at the earliest
date following such allocation.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may, unless the Board of Directors determines otherwise,
only be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director; provided, however, that if the
holders of any class or classes of stock or series thereof are entitled to elect
one or more directors, vacancies and newly created directorships of such class
or classes or series may only be filled by a majority of the directors elected
by such class or classes or series thereof than in office, or by a sole
remaining director so elected.
SECTION
2. Stockholder
Nominees. Nominations by stockholders of persons for election
to the Board shall be made only in accordance with the procedures set forth in
the Bylaws of the Corporation.
SECTION
3. Removal. Subject
to the rights of the holders of any series of Preferred Stock then outstanding,
any director, or the entire Board, may be removed from office only for cause at
any time, and only by the affirmative vote of the holders of a majority of the
shares of Voting Stock then outstanding.
ARTICLE
XI
Business
Combinations
SECTION
1. Vote Required for Certain
Business Combinations. In addition to any affirmative vote
required by applicable law or any other provision of this Certificate of
Incorporation or specified in any agreement, and in addition to any voting
rights granted to or held by the holders of Common Stock or Preferred Stock, the
approval or authorization of any Business Combination that has not bean approved
in advance by at least 66-2/3% of the Directors shall require the affirmative
vote of the holders of not lees than 66-2/3% of the Voting Stock then
outstanding.
SECTION
2. Express Election Not to be
Governed by Section 203. The Corporation hereby expressly
elects not to be governed, by the provisions of Section 203 of the Delaware
General Corporation Law; provided, however, that nothing
set forth herein shall affect the application of the definitions in clause (c)
thereof, to the extent provided in Article II hereof.
ARTICLE
XII
Liability
and Indemnification
To the
fullest extent permitted by the Delaware General Corporation Law, as the sane
exists or may hereafter be amended (the “Delaware Law”), a director of the
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. The
Corporation shall indemnify, in the manner and to the fullest extent permitted
by the Delaware Law, any person (or the estate of any person) who is or was a
party to, or is threatened to be made a party to, any threatened, pending or
completed action, suit or proceeding, whether or not by or in the right of the
Corporation, and whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise. The Corporation may indemnify, in
the manner and to the fullest extent permitted by the Delaware Law, any person
(or the estate of any person) who is or was a party to, or is threatened to be
made a party to, any threatened, pending or completed action, suit or
proceeding, whether or not by or in the right of the Corporation, and whether
civil, criminal, administrative, investigative or otherwise, by reason of the
fact that such person is or was an employee or agent of the Corporation, or is
or was serving at the request of the Corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise. The Corporation may, to the fullest extent permitted by
the Delaware Law, purchase and maintain insurance on behalf of any such
director, officer, employee or agent against any liability which may be asserted
against such person. To the fullest extent permitted by the Delaware
Law, the indemnification provided herein shall include expenses (including
Attorneys’ fees), judgments, fines and amounts paid in settlement and, in the
manner provided by the Delaware Law, any such expenses may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding. The indemnification provided herein shall not be deemed
to limit the right of the Corporation to indemnify any other person for any such
expenses to the fullest extent permitted by the Delaware Law, nor shall it be
deemed exclusive of any other rights to which any person seeking indemnification
from the Corporation may be entitled under any agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such
office.
No repeal
or modification of the foregoing paragraph shall adversely affect any right or
protection of a director of the Corporation existing by virtue of the foregoing
paragraph at the time of such repeal or modification.
ARTICLE
XIII
Amendment
of Corporate Documents
SECTION
1. Certificate of
Incorporation. In addition to any affirmative vote required by
applicable law or any other provision of this Certificate of Incorporation or
specified in any agreement, and in addition to any voting rights granted to or
held by the holders of Common Stock or Preferred Stock, any alteration,
amendment, repeal or rescission (any “Change”) of any provision of this
Certificate of Incorporation must be approved by a majority of the directors of
the Corporation then in office and by the affirmative vote of the holders of a
majority of the Voting Stock then outstanding; provided, however, that if any
such Change relates to Articles II, VII, IX, X, XI and XIV hereof or this
Article XIII, such Change must also be approved by the affirmative vote of
the holders of not less than 66-2/3% of the shares of Voting Stock then
outstanding. Subject to the foregoing, the Corporation reserves the
right to alter, amend, repeal or rescind any provision contained in this
Certificate of Incorporation in any manner now or hereafter prescribed by
law.
SECTION
2. Bylaws. The
Board shall have the power to make, alter, amend, repeal or rescind the Bylaws
of the Corporation.
ARTICLE
XIV
Appraisal
Rights
To the
maximum extent permissible under Section 262 of the Delaware General
Corporation Law, the stockholders of the Corporation shall be entitled to the
statutory appraisal rights provided therein, notwithstanding any exception
otherwise provided therein, with respect to any transaction described in
Article XI involving the Corporation that requires the affirmative vote of
the holders of not less than 66-2/3% of the Voting Stock then
outstanding.
ARTICLE
XV
Incorporator
The name
and mailing address of the incorporator of the Corporation is:
Jacqueline
N. Casper
c/o
Corporation Service Company
1013
Center Road
Wilmington,
Delaware 19805