Attached files
file | filename |
---|---|
S-1/A - FORM S-1/A - Alon Brands, Inc. | d77599a5sv1za.htm |
EX-4.1 - EX-4.1 - Alon Brands, Inc. | d77599a5exv4w1.htm |
EX-3.2 - EX-3.2 - Alon Brands, Inc. | d77599a5exv3w2.htm |
EX-23.1 - EX-23.1 - Alon Brands, Inc. | d77599a5exv23w1.htm |
EX-10.1 - EX-10.1 - Alon Brands, Inc. | d77599a5exv10w1.htm |
EX-10.2 - EX-10.2 - Alon Brands, Inc. | d77599a5exv10w2.htm |
EX-10.16 - EX-10.16 - Alon Brands, Inc. | d77599a5exv10w16.htm |
EX-10.19 - EX-10.19 - Alon Brands, Inc. | d77599a5exv10w19.htm |
EX-10.17 - EX-10.17 - Alon Brands, Inc. | d77599a5exv10w17.htm |
EX-10.20 - EX-10.20 - Alon Brands, Inc. | d77599a5exv10w20.htm |
EX-10.21 - EX-10.21 - Alon Brands, Inc. | d77599a5exv10w21.htm |
Exhibit 3.1
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
CERTIFICATE OF INCORPORATION
OF
ALON BRANDS, INC.
Alon Brands, Inc., a corporation organized and existing under the laws of the State of Delaware (the Company), hereby certifies as follows:
1. The name of the Company is Alon Brands, Inc.
2. The original Certificate of Incorporation of the Company (Original Certificate) was filed
in the office of the Secretary of State of the State of Delaware on November 5, 2008.
3. This Amended and Restated Certificate of Incorporation (this Certificate of
Incorporation) has been duly adopted in accordance with the provisions of Sections 242 and 245 of the Delaware General Corporation Law (the DGCL).
4. The text of the Original Certificate is hereby amended and restated in its entirety to read as follows:
ARTICLE I
The name of the corporation is Alon Brands, Inc.
ARTICLE II
The address of the Companys registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of
New Castle, Delaware 19801. The name of the Companys registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
Section 1. Authorized Capital Stock. The Company is authorized to issue two classes
of capital stock, designated Common Stock and Preferred Stock. The total number of shares of
capital stock that the Company is authorized to issue is 125,000,000 shares, consisting of
100,000,000 shares of Common Stock, par value $0.01 per share, and 25,000,000 shares of Preferred
Stock, par value $0.01 per share.
1
Section 2. Preferred Stock. The Preferred Stock may be issued in one or more series.
The Board of Directors of the Company (the Board) is hereby authorized to issue the shares of
Preferred Stock in such series and to fix from time to time before issuance the number of shares to
be included in any such series and the designation, relative powers, preferences, rights and
qualifications, limitations or restrictions of such series. The authority of the Board with
respect to each such series will include, without limiting the generality of the foregoing, the
determination of any or all of the following:
(a) the number of shares of any series and the designation to distinguish the shares of
such series from the shares of all other series;
(b) the voting powers, if any, and whether such voting powers are full or limited in
such series;
(c) the redemption provisions, if any, applicable to such series, including the
redemption price or prices to be paid;
(d) whether dividends, if any, will be cumulative or noncumulative, the dividend rate
of such series, and the dates and preferences of dividends on such series;
(e) the rights of such series upon the voluntary or involuntary dissolution of, or upon
any distribution of the assets of, the Company;
(f) the provisions, if any, pursuant to which the shares of such series are convertible
into, or exchangeable for, shares of any other class or classes or of any other series of
the same or any other class or classes of stock, or any other security, of the Company or
any other corporation or other entity, and the rates or other determinants of conversion or exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase any securities of the Company or
any other corporation or other entity;
(h) the provisions, if any, of a sinking fund applicable to such series; and
(i) any other relative, participating, optional, or other special powers, preferences or rights and qualifications, limitations, or
restrictions thereof;
all as may be determined from time to time by the Board and stated or expressed in the resolution
or resolutions providing for the issuance of such Preferred Stock (collectively, a Preferred Stock Designation).
Section 3. Common Stock. Subject to the rights of the holders of any series of
Preferred Stock, the holders of Common Stock will be entitled to one vote on each matter submitted
to a vote at a meeting of stockholders for each share of Common Stock held of record by such holder as of the record date for such meeting.
2
ARTICLE V
The Board may make, amend, and repeal the Bylaws of the Company. Any Bylaw made by the Board
under the powers conferred hereby may be amended or repealed by the Board (except as specified in
any such Bylaw so made or amended) or by the stockholders in the manner provided in the Bylaws of
the Company. Notwithstanding the foregoing and anything contained in this Certificate of
Incorporation or the Bylaws to the contrary, Bylaws 1, 3, 8, 10, 11, 12, 13, and 37 may not be
amended or repealed by the stockholders, and no provision inconsistent therewith may be adopted by
the stockholders, without the affirmative vote of the holders of at least a majority of the voting
power of the outstanding Voting Stock (as defined below), voting together as a single class. The
Company may in its Bylaws confer powers upon the Board in addition to the foregoing and in addition
to the powers and authorities expressly conferred upon the Board by applicable law. For the
purposes of this Certificate of Incorporation, Voting Stock means stock of the Company of any
class or series entitled to vote generally in the election of Directors. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders
of at least a majority of the Voting Stock, voting together as a single class, is required to amend
or repeal, or to adopt any provision inconsistent with, this Article V.
ARTICLE VI
Subject to the rights of the holders of any series of Preferred Stock:
(a) any action required or permitted to be taken by the stockholders of the Company
must be effected at a duly called annual or special meeting of stockholders of the Company
and may not be effected by any consent in writing of such stockholders; and
(b) special meetings of stockholders of the Company may be called only (i) by the
Chairman of the Board (the Chairman), (ii) by the President of the Company (the
President), or (iii) by the Secretary of the Company (the Secretary) within 10 calendar
days after receipt of the written request of a majority of the total number of Directors
that the Company would have if there were no vacancies (the Whole Board).
At any annual meeting or special meeting of stockholders of the Company, only such business will be
conducted or considered as has been brought before such meeting in the manner provided in the
Bylaws of the Company. Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least a majority of the voting power of the
outstanding Voting Stock, voting together as a single class, will be required to amend or repeal,
or adopt any provision inconsistent with, this Article VI.
ARTICLE VII
Section 1. Number, Election, and Terms of Directors. Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, the number of the Directors of the Company will not be
less than three nor more than 15 and will be fixed from time to time in the manner provided in the
Bylaws of the Company. The Directors shall be elected at each annual meeting of the
3
stockholders of the Company by a plurality of the votes of the shares present in person or
represented by proxy at such meeting and entitled to vote on the election of Directors, to hold
office for a term expiring at the next annual meeting of stockholders. Subject to the rights, if
any, of the holders of any series of Preferred Stock to elect additional Directors under
circumstances specified in a Preferred Stock Designation, Directors may be elected by the
stockholders only at an annual meeting of stockholders. Election of Directors of the Company need
not be by written ballot unless requested by the Chairman or by the holders of a majority of the
Voting Stock present in person or represented by proxy at a meeting of the stockholders at which
Directors are to be elected. If authorized by the Board, such requirement of a written ballot
shall be satisfied by a ballot submitted by electronic transmission, provided that any such
electronic transmission must either set forth or be submitted with information from which it can be
determined that the electronic transmission was authorized by the stockholder or proxy holder.
Section 2. Nomination of Director Candidates. Advance notice of stockholder
nominations for the election of Directors must be given in the manner provided in the Bylaws of the
Company.
Section 3. Newly Created Directorships and Vacancies. Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, newly created directorships resulting from any increase
in the number of Directors and any vacancies on the Board resulting from death, resignation,
disqualification, removal, or other cause will be filled solely by the affirmative vote of a
majority of the Directors then in office, even though less than a quorum of the Board, or by a sole
remaining Director. Any Director elected in accordance with the preceding sentence will hold
office until the next annual meeting of stockholders and until such Directors successor has been
elected and qualified. No decrease in the number of Directors constituting the Board may shorten
the term of any incumbent Director.
Section 4. Removal. Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock
Designation, stockholders may remove any Director from office only for cause and only in the manner
provided in this Article VII, Section 4. At any annual meeting or special meeting of the
stockholders, the notice of which states that the removal of a Director or Directors is among the
purposes of the meeting, the affirmative vote of the holders of at least a majority of the voting
power of the outstanding Voting Stock, voting together as a single class, may remove such Director
or Directors for cause.
Section 5. Amendment, Repeal, Etc. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least a
majority of the voting power of the outstanding Voting Stock, voting together as a single class, is
required to amend or repeal, or adopt any provision inconsistent with, this Article VII.
ARTICLE VIII
To the full extent permitted by the DGCL or any other applicable law currently or hereafter in
effect, no Director of the Company will be personally liable to the Company or its
4
stockholders for or with respect to any acts or omissions in the performance of his or her
duties as a Director of the Company. Any repeal or modification of this Article VIII will not
adversely affect any right or protection of a Director of the Company existing prior to such repeal or modification.
5
ARTICLE IX
Section 1. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a Proceeding), by reason of the fact
that he or she is or was a director or an officer of the Company or is or was serving at the
request of the Company, while a director or officer of the Company, as a director, officer,
employee or agent of another company or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (an Indemnitee), whether the basis of
such Proceeding is alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Company to the fullest extent permitted or required by the
DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Company to provide broader indemnification rights
than such law permitted the Company to provide prior to such amendment), against all expense,
liability and loss (including attorneys fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection
therewith; provided, however, that, except as provided in Section 3 of this Article IX with respect
to Proceedings to enforce rights to indemnification, the Company shall indemnify any such
Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if
such Proceeding (or part thereof) was authorized by the Board of Directors of the Company.
Section 2. Right to Advancement of Expenses. The right to indemnification conferred
in Section 1 of this Article IX shall include the right to be paid by the Company the expenses
(including, without limitation, attorneys fees and expenses) incurred in defending any such
Proceeding in advance of its final disposition (an Advancement of Expenses); provided, however,
that, if the DGCL so requires, an Advancement of Expenses incurred by an Indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which service was or is
rendered by such Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Company of an undertaking (an Undertaking), by or on
behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal (a Final Adjudication)
that such Indemnitee is not entitled to be indemnified for such expenses under this Section 2 or
otherwise. The rights to indemnification and to the Advancement of Expenses conferred in Sections
1 and 2 of this Article IX shall be contract rights and such rights shall continue as to an
Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the Indemnitees heirs, executors and administrators.
Section 3. Right of Indemnitee to Bring Suit. If a claim under Section 1 or 2 of
this Article IX is not paid in full by the Company within 60 calendar days after a written claim
has been received by the Company, except in the case of a claim for an Advancement of Expenses, in
which case the applicable period shall be 20 calendar days, the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Company to recover an Advancement
of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be paid
also the expense of prosecuting or defending such suit. In (i) any suit brought
6
by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought
by the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that, and
(ii) any suit brought by the Company to recover an Advancement of Expenses pursuant to the terms of
an Undertaking, the Company shall be entitled to recover such expenses upon a Final Adjudication
that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL.
Neither the failure of the Company (including its directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such suit that
indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the DGCL, nor an actual determination by the Company
(including its directors, independent legal counsel or stockholders) that the Indemnitee has not
met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a
defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification
or to an Advancement of Expenses hereunder, or brought by the Company to recover an Advancement of
Expenses pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this Article IX or otherwise
shall be on the Company.
Section 4. Non-Exclusivity of Rights. The rights to indemnification and to the
Advancement of Expenses conferred in this Article IX shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the Companys Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Insurance. The Company may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
Section 6. Indemnification of Employees and Agents of the Company. The Company may,
to the extent authorized from time to time by the Board of Directors, grant rights to
indemnification and to the Advancement of Expenses to any employee or agent of the Company or to
any person who serves at the request of the Company as a director, officer, employee or agent of
another company or of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan, to the fullest extent of the provisions of this Article
IX with respect to the indemnification and Advancement of Expenses of directors and officers of the
Company or as otherwise permitted or required by the DGCL.
ARTICLE X
The Company renounces any interest or expectancy of the Company in, or in being offered an
opportunity to participate in, any matter, transaction or interest that is presented to, or
acquired, created or developed by, or which otherwise comes into the possession of, any director or
officer of the Company who is a director, officer or employee of Alon USA Energy, Inc., a Delaware
corporation, or any of its subsidiaries (collectively, Covered Persons), unless such matter,
transaction or interest (a) relates primarily to the ownership or operation of retail convenience
stores or (b) is presented to, or acquired, created or developed by, or otherwise
7
comes into the possession of a Covered Person expressly and solely in such Covered Persons capacity as a director or officer of the Company.
ARTICLE XI
Upon the filing of this Certificate of Incorporation with the Secretary of the State of the
State of Delaware, each then outstanding share of Common Stock will automatically and without
further action on the part of any person or entity be changed into [ ] fully paid and nonassessable shares of Common Stock.
EXECUTED effective as of [ ], 2011.
ALON BRANDS, INC. |
||||
By: | ||||
Sarah Braley Campbell | ||||
Secretary | ||||
8