Attached files
file | filename |
---|---|
8-K - FORM 8-K - RALCORP HOLDINGS INC /MO | c64500e8vk.htm |
EX-4.1 - EX-4.1 - RALCORP HOLDINGS INC /MO | c64500exv4w1.htm |
EX-99.1 - EX-99.1 - RALCORP HOLDINGS INC /MO | c64500exv99w1.htm |
Exhibit 3.2
Certificate of Designation, Preferences and Rights of
Series E Junior Participating Cumulative Preferred Stock
of
Ralcorp Holdings, Inc.
Series E Junior Participating Cumulative Preferred Stock
of
Ralcorp Holdings, Inc.
Pursuant to Section 351.180 of
The General and Business Corporation Law of Missouri
We, Kevin J. Hunt, Co-Chief Executive Officer and President, and Gregory A. Billhartz,
Corporate Vice President, General Counsel and Secretary, of Ralcorp Holdings, Inc. a corporation
organized and existing under the General and Business Corporation Law of Missouri, in accordance
with the provisions of Section 351.180 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Restated Articles
of Incorporation (the Restated Articles), of the Company, the said Board of Directors on May 4,
2011, adopted the following resolution (the Resolution) creating a series of One Hundred Thousand
(100,000) shares of Preferred Stock designated as Series E Junior Participating Cumulative
Preferred Stock, par value $0.01 per share, a copy of which Resolution was set forth in a
certificate of designations that was executed by the Companys President, acknowledged and filed
with the Office of the Secretary of State, State of Missouri (the Certificate of Designation),
setting forth the powers, preferences and relative, participating, optional and other special
rights, and the qualifications, limitations, or restrictions thereof, as follows:
Section 1. Designation and Amount.
The shares of such series shall be designated as the Series E Junior Participating Cumulative
Preferred Stock, par value $0.01 per share, and the number of shares constituting such series
shall be 100,000. Such number of shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the number of shares of Series E Junior
Participating Cumulative Preferred Stock to a number less than that of the shares then outstanding
plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Company.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of preferred stock of the
Company ranking prior and superior to the Series E Junior Participating Cumulative Preferred Stock
with respect to dividends, the holders of shares of Series E Junior Participating Cumulative
Preferred Stock, in preference to the holders of shares of common stock, par value $0.01 of the
Company (the Common Stock), and of any other junior 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 in cash on any regular quarterly dividend payment date as shall be established by
the Board of Directors (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 a share
or fraction of a share of Series E Junior Participating Cumulative Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the greater of (a) $100.00 or (b) subject to the
provision for adjustment hereinafter set forth, 10,000 times the aggregate per share amount of all
cash dividends, and 10,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares of Common Stock or 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
1
Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share
of Series E Junior Participating Cumulative Preferred Stock. In the event the Company shall at any
time after May 4, 2011 (the Rights Declaration Date) declare or pay any dividend on the 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 than by payment of a
dividend in shares of Common Stock) 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 E Junior Participating Cumulative
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 Company shall declare a dividend or distribution on the Series E Junior Participating
Cumulative Preferred Stock as provided in paragraph (A) of this Section immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event 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, a dividend of $100.00 per share on the Series E Junior
Participating Cumulative 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 E Junior
Participating Cumulative Preferred Stock from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares
of Series E Junior Participating Cumulative Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which events such 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 the shares of Series E Junior
Participating Cumulative 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, in accordance
with applicable law, fix a record date for the determination of holders of shares of Series E
Junior Participating Cumulative Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than such number of days prior
to the date fixed for the payment thereof as may be allowed by applicable law.
Section 3. Voting Rights.
The holders of shares of Series E Junior Participating Cumulative Preferred Stock shall have
the following voting rights:
(A) Each share of Series E Junior Participating Cumulative Preferred Stock shall entitle the
holder thereof to 10,000 votes on all matters submitted to a vote of the holder of the Common
Stock. In the event the Company shall at any time after the Rights Declaration Date declare or pay
any dividend on the 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 than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes to which holders of shares of
Series E Junior Participating Cumulative Preferred Stock were entitled immediately prior to such
2
event under 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) Except as otherwise provided herein, in the Companys Restated Articles of Incorporation,
and except as otherwise provided by law, the holders of shares of Series E Junior Participating
Cumulative Preferred Stock, the holders of shares of Common Stock, and the holders of shares of any
other capital stock of the Company having general voting rights, shall vote together as one class
on all matters submitted to a vote of shareholders of the Company.
(C) Except as otherwise set forth herein or in the Companys Restated Articles of
Incorporation, and except as otherwise provided by law, holders of Series E Junior Participating
Cumulative 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 dividends or distributions payable on the Series E Junior Participating
Cumulative 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 shares of Series E
Junior Participating Cumulative Preferred Stock outstanding shall have been paid in full, the
Company shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series E Junior
Participating Cumulative 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 E Junior Participating Cumulative Preferred Stock, except dividends paid
ratably on the Series E Junior Participating Cumulative Preferred Stock and all such 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) except as permitted in Section 4(A)(iv) below, redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series E Junior Participating
Cumulative Preferred Stock, provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon dissolution, liquidation or winding
up) to the Series E Junior Participating Cumulative Preferred Stock; and
(iv) purchase or otherwise acquire for consideration any shares of Series E Junior
Participating Cumulative Preferred Stock, or any shares of stock ranking on a parity with
the Series E Junior Participating Cumulative 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 such shares 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.
3
(B) The Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares.
Any shares of Series E Junior Participating Cumulative Preferred Stock purchased or otherwise
acquired by the Company in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. The Company shall cause all such shares upon their cancellation to be
authorized but unissued shares of Preferred Stock which may be reissued as part of a new series of
Preferred Stock, subject to the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the rights of the holders of any shares of any series of Preferred Stock of the
Company ranking prior and superior to the Series E Junior Participating Cumulative Preferred Stock
with respect to liquidation, upon any liquidation (voluntary or otherwise), dissolution or winding
up of the Company, no distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series E Junior
Participating Cumulative Preferred Stock unless, prior thereto, the holders of shares of Series E
Junior Participating Cumulative Preferred Stock shall have received $10,000.00 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to
the date of such payment (the Series E Liquidation Preference). Following the payment of the
full amount of the Series E Liquidation Preference, no additional distributions shall be made to
the holders of shares of Series E Junior Participating Cumulative Preferred Stock, unless, prior
thereto, the holders of shares of Common Stock shall have received an amount per share (the Common
Adjustment) equal to the quotient obtained by dividing (i) the Series E Liquidation Preference by
(ii) 10,000 (as appropriately adjusted as set forth in subparagraph C below to reflect such events
as stock dividends, and subdivisions, combinations and consolidations with respect to the Common
Stock) (such number in clause (ii) being referred to as the Adjustment Number). Following the
payment of the full amount of the Series E Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series E Junior Participating Cumulative Preferred Stock and
Common Stock, respectively, holders of Series E Junior Participating Cumulative Preferred Stock and
holders of shares of Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1 with respect to such
Series E Junior Participating Cumulative Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event there are not sufficient assets available to permit payment in full of the
Series E Liquidation Preference and the liquidation preferences of all other series of preferred
stock, if any, which rank on a parity with the Series E Junior Participating Cumulative Preferred
Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares
in proportion to their respective liquidation preferences. In the event there are not sufficient
assets available to permit payment in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In the event the Company 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 than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the Adjustment Number in effect immediately prior
to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator
of which is the number of shares of Common Stock outstanding
4
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, etc.
In case the Company shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of Series E Junior
Participating Cumulative Preferred Stock shall at the same time be similarly exchanged or changed
in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to
10,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Company 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 than by payment of a dividend in shares of Common Stock) 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 E Junior Participating Cumulative
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 are outstanding immediately prior
to such event.
Section 8. Redemption.
The shares of Series E Junior Participating Cumulative Preferred Stock shall not be redeemable.
Section 9. Ranking.
The Series E Junior Participating Cumulative Preferred Stock shall rank junior to all other
series of the Companys Preferred Stock as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide otherwise.
Section 10. Fractional Shares.
Series E Junior Participating Cumulative Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such holders fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have the benefit of all other
rights of holders of Series E Junior Participating Cumulative Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the
foregoing as true under the penalties of perjury this 4th day of May, 2011.
Attest: | Ralcorp Holdings, Inc. | |||||||||
By:
|
/s/ Gregory A. Billhartz |
By: | /s/ Kevin J. Hunt | |||||||
Name: Gregory A. Billhartz |
Name: Kevin J. Hunt | |||||||||
Title: Corporate Vice President, General Counsel and Secretary |
Title: Co-Chief Executive Officer and President |
5