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EXHIBIT 3.1
State of North Carolina
Department of the Secretary of State
ARTICLES OF
RESTATEMENT
FOR BUSINESS CORPORATION
FOR BUSINESS CORPORATION
Pursuant to §55-10-07 of the
General Statutes of North Carolina, the undersigned corporation hereby submits
the following for the purpose of restating its Articles of
Incorporation.
1. The name of the
corporation is: KRISPY KREME DOUGHNUTS, INC.
2. The text of the Restated Articles of Incorporation is attached.
3. These Restated Articles of Incorporation do not include a new amendment.
4. These Restated Articles of Incorporation consolidate all amendments into a single document.
5. These articles will be effective upon filing.
This the 13th day of April, 2010.
2. The text of the Restated Articles of Incorporation is attached.
3. These Restated Articles of Incorporation do not include a new amendment.
4. These Restated Articles of Incorporation consolidate all amendments into a single document.
5. These articles will be effective upon filing.
This the 13th day of April, 2010.
| KRISPY KREME DOUGHNUTS, INC. | ||||
|
By:
|
/s/ James H. Morgan | |||
| Name: | James H. Morgan | |||
| Title: | Chairman, President and Chief | |||
| Executive Officer | ||||
RESTATED ARTICLES OF INCORPORATION
OF
KRISPY KREME DOUGHNUTS, INC.
The undersigned
hereby submits these Articles of Incorporation for the purpose of forming a
business corporation under and by virtue of the laws of the State of North
Carolina:
ARTICLE I.
The name of the
corporation is KRISPY KREME DOUGHNUTS, INC.
ARTICLE II.
The period of
duration of the corporation is perpetual.
ARTICLE III.
The purposes for
which the corporation is organized are to engage in any lawful act or activity
for which corporations may be organized under Chapter 55 of the General Statutes
of North Carolina, and nothing contained herein shall in any way limit or
restrict or take away from this corporation the general powers granted to it
under and by virtue of the provisions of Chapter 55 of the General Statutes of
North Carolina and the several amendments thereto.
ARTICLE IV.
The Corporation shall
have the authority to issue not more than (a) 300,000,000 shares of common
stock, no par value (“Common Stock”) and (b) 10,000,000 shares of preferred
stock, no par value (“Preferred Stock”). Of the 10,000,000 shares of authorized
and unissued Preferred Stock of the Corporation, a series of Preferred Stock, no
par value, of the Corporation, consisting of 3,000,000 shares, shall be
designated and known as the “Series A Participating Cumulative Preferred Stock”
of the Corporation.
Holders of the Common
Stock are entitled to the entire voting power, all distributions declared and
all assets of the corporation upon dissolution, subject to the rights and
preferences, if any, of the holders of Preferred Stock to such voting powers,
dividends and assets upon dissolution pursuant to applicable law and the
resolution or resolutions of the Board of Directors providing for the issue of
one or more series of Preferred Stock.
The designation,
number of shares, preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends and qualifications of the Series A
Participating Cumulative Preferred Stock are as follows:
Section 1. Designation and Number of Shares. The shares of such series shall be
designated as “Series A Participating Cumulative Preferred Stock” (the
“Series A Preferred Stock”), and the number of shares constituting such
series shall be 3,000,000. Such number of shares of the Series A Preferred Stock
may be increased or decreased by resolution of the Board of Directors; provided,
however, that no decrease shall reduce the number of shares of Series A Preferred Stock
to a number less than the number of shares then outstanding plus the number of
shares issuable upon exercise or conversion of outstanding rights, options or
other securities issued by the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends, if any, the holders of
shares of Series A Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable on the last day of March, June, September
and December of each year (each such date being referred to herein as a
“Quarterly Dividend Payment
Date”), commencing on the
first Quarterly Dividend Payment Date after the first issuance of any share or
fraction of a share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1.00 and (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount (payable in kind) of all cash dividends or other distributions and
100 times the aggregate per share amount of all non-cash dividends or other
distributions (other than (i) a dividend payable in shares of Common Stock, par
value $.01 per share, of the Corporation (the “Common Stock”) or
(ii) a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise)), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. If the Corporation shall at any
time after January 18, 2010 (the “Rights Declaration Date”) declare or pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in Section 2(A) immediately after it
declares a dividend or distribution on the Common Stock (other than as described
in clauses (i) and (ii) of the first sentence of Section 2(A)); provided,
however, that if no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date (or, with respect to the
first Quarterly Dividend Payment Date, the period between the first issuance of
any share or fraction of a share of Series A Preferred Stock and such first
Quarterly Dividend Payment Date), a dividend of $1.00 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is on or before the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue and be cumulative from the date of issue of such shares, or
unless the date of issue is a date after the record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive a quarterly
dividend and on or before such Quarterly Dividend Payment Date, in which case
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall not be more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. In addition to any other voting rights required by law, the holders of
shares of Series A Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of shareholders of the Corporation. If the
Corporation shall at any time after the Rights Declaration Date declare or pay
any dividend on Common Stock payable in shares of Common Stock or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per share to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of shares
of Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as a single class on all matters submitted to a vote of shareholders of
the Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock shall be
in arrears in an amount equal to six quarterly dividends thereon (whether or not
consecutive), the occurrence of such contingency shall mark the beginning of a
period (herein called a “default period”)
which shall extend until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly dividend
period on all shares of Series A Preferred Stock then outstanding shall have
been declared and paid or set apart for payment. During each default period, all
holders of Series A Preferred Stock and any other series of Preferred Stock then
entitled as a class to elect directors, voting together as a single class,
irrespective of series, shall have the right to elect one Director.
(ii) During any default period, such voting right of the holders of
Series A Preferred Stock may be exercised initially at a special meeting called
pursuant to Section 3(C)(iii) or at any annual meeting of shareholders, and
thereafter at annual meetings of shareholders; provided, however, that neither
such voting right nor the right of the holders of any other series of Preferred
Stock, if any, to increase, in certain cases, the authorized number of Directors
shall be exercised unless the holders of 10% in number of shares of Preferred
Stock outstanding shall be present in person or by proxy. The absence of a
quorum of holders of Common Stock shall not affect the exercise by holders of
Preferred Stock of such voting right. At any meeting at which holders of
Preferred Stock shall exercise such voting right initially during an existing
default period, they shall have the right, voting as a class, to elect Directors
to fill such vacancy, if any, in the Board of Directors as may then exist up to
one Director or, if such right is exercised at an annual meeting, to elect one
Director. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as shall be necessary to
permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A Preferred Stock.
(iii) Notwithstanding anything to the contrary contained in the
Corporation’s Articles of Incorporation or Bylaws, unless the holders of
Preferred Stock shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of Directors may order, or
any shareholder(s) owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective of
series, may request, the calling of a special meeting of holders of Preferred
Stock, which meeting shall thereupon be called by the President, a Vice
President or the Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock are entitled to vote pursuant
to this Section 3(C)(iii) shall be given to each holder of record of Preferred
Stock by mailing a copy of such notice to him at his last address as the same
appears on the books of the Corporation. Such meeting shall be called for a time
not earlier than 20 days and not later than 60 days after such order or request
or in default of the calling of such meeting within 60 days after such order or
request, such meeting may be called on similar notice by any shareholder(s)
owning in the aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series. Notwithstanding
the provisions of this Section 3(C)(iii), no such special meeting shall be
called during the period within 60 days immediately preceding the date fixed for
the next annual meeting of shareholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be entitled
to elect the whole number of Directors until the holders of Preferred Stock
shall have exercised their right to elect one Director voting as a class, after
the exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in Section
3(C)(ii) be filled by vote of a majority of the remaining Directors theretofore
elected by the holders of the class of stock which elected the Director whose
office shall have become vacant. References in this Section 3(C) to Directors
elected by the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right of
the holders of Preferred Stock as a class to elect Directors shall cease, (y)
the term of any Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such number as may be
provided for in the Articles of Incorporation or Bylaws irrespective of any
increase made pursuant to the provisions of Section 3(C)(ii) (such number being
subject, however, to change thereafter in any manner provided by law or in the
Articles of Incorporation or Bylaws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding sentence may
be filled by a majority of the remaining Directors.
(D) Except as otherwise provided herein, holders of Series A Preferred
Stock shall have no special voting rights, and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on outstanding shares of Series A Preferred Stock shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, or make any other distributions on, any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions on, any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such other parity stock on
which dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem, purchase or otherwise acquire for value any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock; provided, however, that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of stock of the Corporation ranking
junior (as to dividends and upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) redeem, purchase or otherwise acquire for value any shares of Series
A Preferred Stock, or any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of
Series A Preferred Stock and all such other parity stock upon such terms as the
Board of Directors, after consideration of the respective annual dividend rates
and other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for value any shares of stock of the Corporation
unless the Corporation could, under Section 4(A), purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock without designation as to series and may be reissued
as part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors as permitted by the Articles of
Incorporation or as otherwise permitted under North Carolina law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding
up of the Corporation, no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock unless, prior
thereto, the holders of shares of Series A Preferred Stock shall have received
$1.00 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment;
provided, however, that the holders of shares of Series A Preferred Stock shall
be entitled to receive an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Stock, or (2) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all such other
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. If the
Corporation shall at any time after the Rights Declaration Date pay any dividend
on Common Stock payable in shares of Common Stock or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger or Share Exchange. If the Corporation shall enter into any
consolidation, merger, statutory share exchange, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash or any other property, then in any such
case the shares of Series A Preferred Stock shall at the same time be similarly
exchanged for or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash or any other property, as the case may be, into which or
for which each share of Common Stock is exchanged or changed. If the Corporation
shall at any time after the Rights Declaration Date pay any dividend on Common
Stock payable in shares of Common Stock or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The Series A Preferred Stock shall not be redeemable.
Section 9. Rank.
The Series A Preferred Stock shall rank junior (as to dividends and upon
liquidation, dissolution and winding up) to all other series of the
Corporation’s preferred stock, except any series that specifically provides that
such series shall rank junior to the Series A Preferred Stock.
Section 10. Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder’s fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
Section 11. Amendment. The Articles of Incorporation of the Corporation shall not be further
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series A Preferred Stock, voting separately as a
class.
ARTICLE V.
The registered office
of the corporation shall be located at 370 Knollwood Street, Suite 500, Attn:
Legal, Winston-Salem, Forsyth County, North Carolina 27103, and the registered
agent at such address shall be Krispy Kreme Doughnut Corporation.
ARTICLE VI.
The number of
directors of this corporation constituting the Board of Directors may be fixed
by the bylaws.
ARTICLE VII.
In discharging the
duties of their respective positions and in determining what is believed to be
the best interests of the corporation, the Board of Directors, committees of the
Board of Directors and individual directors, in addition to considering the
effects of any action on the corporation or its shareholders, may consider the
interests of the employees, customers, suppliers and creditors of the
corporation and its subsidiaries, the communities in which offices of other
establishments of the corporation and its subsidiaries are located, and all
other factors the directors consider pertinent.
ARTICLE VIII.
No director of the
corporation shall have personal liability arising out of an action whether by or
in the right of the corporation or otherwise for monetary damages for breach of
his or her duty as a director; provided, however, that the foregoing shall not
limit or eliminate the personal liability of a director with respect to those
acts, omissions, or transactions for which the personal liability of a director
may not be limited or eliminated as set forth in North Carolina General Statute
Section 55-2-02 as it is currently enacted or as it may be amended, modified or
rewritten from time to time in the future or as otherwise set forth in the North
Carolina General Statutes as they are currently or as they may be enacted,
modified or rewritten from time to time in the future.
Furthermore,
notwithstanding the foregoing provision, in the event that Section 55-2-02 or
any other provision of the North Carolina General Statutes is amended, modified
or rewritten to permit further limitation or elimination of the personal
liability of the director, the personal liability of the corporation’s directors
shall be limited or eliminated to the fullest extent permitted by the applicable
law.
This Article shall
not affect a charter or bylaw provision or contract or resolution of the
corporation indemnifying or agreeing to indemnify a director against personal
liability. Any repeal or modification of this Article shall not adversely affect
any limitation hereunder on the personal liability of the director with respect
to acts or omissions occurring prior to such repeal or modification.
ARTICLE IX.
The provisions of
Article 9 and Article 9A of the North Carolina Business Corporation Act entitled
“The North Carolina Shareholder Protection Act” and the “The North Carolina
Control Share Acquisition Act”, respectively, shall not be applicable to the
corporation.