Attached files
| file | filename |
|---|---|
| 8-K - RUBIOS RESTAURANTS INC | v195180_8-k.htm |
| EX-3.3 - RUBIOS RESTAURANTS INC | v195180_ex3-3.htm |
| EX-3.1 - RUBIOS RESTAURANTS INC | v195180_ex3-1.htm |
| EX-99.1 - RUBIOS RESTAURANTS INC | v195180_ex99-1.htm |
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
RUBIO’S
RESTAURANTS, INC.
(Pursuant
to Sections 242 and 245 of the
General
Corporation Law of the State of Delaware)
Rubio’s
Restaurants, Inc., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the “Corporation”), DOES
HEREBY CERTIFY:
1. That
the name of the Corporation is Rubio’s Restaurants, Inc.
2. That
the Corporation filed with the Secretary of State of the State of Delaware its
original Certificate of Incorporation on September 2, 1997.
3. That
the sole director of the Corporation duly adopted resolutions, in accordance
with Sections 242 and 245 of the General Corporation Law of the State of
Delaware, proposing to amend and restate the Certificate of Incorporation of the
Corporation filed with the Secretary of State of the State of Delaware on August
24, 2010 as Exhibit A to the Certificate of Merger of MRRC Merger Co. with and
into Rubio’s Restaurants, Inc. so filed on such date (the “Certificate of
Incorporation”), declaring said amendment and restatement to be advisable
and in the best interests of the Corporation and its sole stockholder, and
authorizing the officers of the Corporation to solicit the consent of the sole
stockholder therefor.
4. That
said amendment and restatement was approved by the holders of the requisite
number of shares of the Corporation in accordance with Section 228 of the
General Corporation Law of the State of Delaware.
5. That
this Amended and Restated Certificate of Incorporation, which amends and
restates the provisions of the Certificate of Incorporation, has been duly
adopted in accordance with Sections 242 and 245 of the General Corporation Law
of the State of Delaware.
The text of the Certificate of
Incorporation is amended and restated in its entirety as follows:
FIRST: The
name of the corporation (the “Corporation”) is
Rubio’s Restaurants, Inc.
SECOND: The
address of the registered office of the Corporation in the State of Delaware is
1209 Orange Street, Wilmington, Delaware, 19801, County of New Castle, and 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: Effective
as of the date and time that this Amended and Restated Certificate of
Incorporation is filed with the Secretary of State of the State of Delaware and
becomes effective in accordance with Section 103 of the General Corporation Law
of the State of Delaware (the “Effective Time”), the
total number of shares of stock which the Corporation shall have authority to
issue is 1,100 shares of common stock. The following is a statement
of the powers, privileges and rights in respect of each class of common stock of
the Corporation after the Effective Time:
A. Classes. Of
the common stock, 100 shares shall be designated as Class A Common Stock, par
value $0.01 per share (the “Class A Common
Stock”), and 1,000 shares shall be designated as Class B Common Stock,
par value $0.01 per share (“Class B Common
Stock”). At the Effective Time, each share of common stock of
the Corporation outstanding immediately prior to the Effective Time shall
automatically, without further action on the part the Corporation or any holder
of the Corporation’s stock, immediately and fully be reclassified as and shall
become one (1) validly issued, fully paid and nonassessable share of Class B
Common Stock. The Class A Common Stock and Class B Common Stock
(collectively the “Common Stock”) shall
have the designations, preferences and other rights set forth in this Article
FOURTH.
B. Ranking. The
Class A Common Stock and the Class B Common Stock shall rank pari passu with
each other with respect to the payment of dividends and other
distributions. No subdivision, consolidation, or reclassification to
any class of Common Stock shall be effectuated unless each class of Common Stock
is subdivided, consolidated or reclassified in the same manner.
C. Voting.
1. Class A Common
Stock. Except as required by law or by the express terms of
part (d) of Article FIFTH below, shares of Class A Common Stock shall not
entitle the holder to vote on issues with respect to any matter presented to the
stockholders of the Corporation for their action or consideration.
2. Class B Common
Stock. Each holder of outstanding shares of Class B Common
Stock is entitled to one vote for each share held at each meeting of
stockholders of the Corporation (and written actions in lieu of meetings) with
respect to any and all matters presented to the stockholders of the Corporation
for their action or consideration. There shall be no cumulative
voting. At any meeting of the stockholders of the Corporation, the
presence in person or by proxy of the holders of a majority of the shares of
Class B Common Stock then outstanding and entitled to vote shall constitute a
quorum.
3. Dividends. Dividends
may be declared and paid on the Common Stock from funds lawfully available
therefor, as, if and when declared by the Board of Directors. As and
when any such dividends are declared or paid with respect to shares of Common
Stock, whether in cash, property or securities of the Corporation, the holders
of Common Stock shall be entitled to receive such dividends pro rata at the same
rate per share of Common Stock.
FIFTH:
In furtherance of and not in limitation of powers
conferred by statute, it is further provided that:
(a) Subject
to the limitations and exceptions, if any, contained in the by-laws of the
Corporation, such by-laws may be adopted, amended or repealed by the board of
directors of the Corporation;
(b) Elections
of directors need not be by written ballot unless, and only to the extent,
otherwise provided in the by-laws of the Corporation;
(c) Subject
to any applicable requirements of law, the books of the Corporation may be kept
outside the State of Delaware at such location or locations as may be designated
by the board of directors of the Corporation or in the by-laws of the
Corporation; and
(d) Except
as provided to the contrary in the provisions establishing a class of stock, the
number of authorized shares of a given class 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, voting as a single
class.
SIXTH:
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
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 law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director derived
any improper personal benefit. If the General Corporation Law of the State of
Delaware is hereafter amended to further reduce or to authorize, with the
approval of the corporation's stockholders, further reductions in the liability
of the corporation's directors for breach of fiduciary duty, then a director of
the corporation shall not be liable for any such breach to the fullest extent
permitted by the General Corporation Law of the State of Delaware as so
amended. To the extent permitted by applicable law, this corporation
is also authorized to provide indemnification of (and advancement of expenses
to) such agents (and any other persons to which Delaware law permits this
corporation to provide indemnification) through bylaw provisions, agreements
with such agents or other persons, vote of stockholders or disinterested
directors or otherwise, in excess of the indemnification and advancement
otherwise permitted by Section 145 of the General Corporation Law of the State
of Delaware, subject only to limits created by applicable Delaware law
(statutory or non-statutory), with respect to actions for breach of duty to the
corporation, its stockholders and others. Any repeal or modification
of any of the foregoing provisions of this Article SIXTH shall be prospective
and shall not adversely affect any right or protection of a director, officer,
agent or other person existing at the time of, or increase the liability of any
director of the corporation with respect to any acts or omissions of such
director occurring prior to, such repeal or modification.
SEVENTH: The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation in the
manner now or hereafter prescribed by the General Corporation Law of the State
of Delaware and this Amended and Restated Certificate of Incorporation, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
* * * * *
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by Daniel E. Pittard, its President
and Chief Executive Officer, this 24 day of August, 2010.
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RUBIO’S
RESTAURANTS, INC.
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By:
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/s/
Daniel E. Pittard
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Name:
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Daniel
E. Pittard
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Title:
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President
and Chief Executive
Officer
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