<PAGE> 1
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
INTERSTATE BRANDS CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is INTERSTATE BRANDS CORPORATION, and the name under which the
corporation was originally incorporated is Interstate Bakeries Corporation.
The original certificate of incorporation of the corporation
was filed with the Secretary of State on December 13, 1937, and the Restated
Certificate of Incorporation of the corporation (the "Certificate of
Incorporation") was filed with the Secretary of State on April 9, 1970.
2. The Certificate of Incorporation, as heretofore amended, is
hereby amended and restated in its entirety to read as follows:
ARTICLE I
The name of the Corporation shall be INTERSTATE BRANDS
CORPORATION.
ARTICLE II
The registered office of the corporation in the State of
Delaware is to be located at No. 100 West Tenth Street in the City of
Wilmington, County of New Castle. The name and address of its registered agent
is The Corporation Trust Company, No. 100 West Tenth Street, Wilmington,
Delaware.
<PAGE> 2
ARTICLE III
The nature of the business and the objects and purposes to be
transacted, promoted, or carried on by the corporation are to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
The total number of shares of all classes of Stock which the
corporation shall have authority to issue is Sixteen Thousand Twenty Six
(16,026) shares which shall be divided into two classes as follows: Six Thousand
Twenty Six (6,026) shares of $4.80 Dividend Cumulative Preferred Stock, without
par value (Preferred Stock), and Ten Thousand (10,000) shares of Common Stock,
par value $10.00 (Common Stock). The designations, voting powers, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions of the above classes of stock shall
be as follows:
DIVISION I
PREFERRED STOCK
(1) Holders of the Preferred Stock shall be entitled to
receive, when and as declared from the net profits or from the net assets in
excess of capital legally available therefor, cumulative dividends at the rate
of $4.80 per share per annum, and no more, payable quarterly, before any
dividends shall be declared or paid upon or set apart for the Common Stock, and
such dividends shall be cumulative from April 1, 1947. Whenever the cumulative
dividends on the Preferred Stock for all previous dividend periods and for the
current dividend period shall have been declared and paid, or a sum sufficient
for the payment thereof set apart, the Board of Directors may declare dividends
on the Common Stock out of any remaining net profits or out of any remaining
assets in excess of capital to the extent permitted by the Delaware Corporation
Law.
(2) The Preferred Stock may be redeemed at any time as a whole
or from time to time in part at the option of the Board of Directors upon notice
duly given as hereinafter provided, by paying therefor in cash a sum equivalent
to $105 per share, together with the amount of any and all accrued dividends
thereon. Notice of every such redemption of Preferred Stock shall be mailed at
least thirty (30) days prior to the date therein fixed for such redemption,
addressed to the holders of record of the shares to be redeemed at their
respective addresses as the same shall appear upon the stock record books of the
corporation. If at any time less than the whole of the Preferred Stock at the
time outstanding shall be called for redemption, the shares so to be redeemed
shall be determined by lot or in such other manner as may be approved by the
Board of Directors and as may be permitted by the rules of any stock exchange
upon which the shares of Preferred Stock may at the time be listed. Subject to
the limitations and provisions herein contained, the Board of Directors shall
have full power and authority to prescribe the manner in which and the terms and
conditions upon which the Preferred Stock shall be redeemed from time to time.
If such notice of redemption shall have been duly given and if, on or before the
redemption date specified therein, the funds necessary for such redemption shall
have been
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set aside by the corporation separate and apart from its other funds in trust
for the pro rata benefit of the holders of the shares, so called for redemption,
then, notwithstanding that any certificate for shares of Preferred Stock so
called for redemption shall not have been surrendered for cancellation, the
shares represented thereby shall no longer be deemed outstanding and the right
to receive dividends thereon shall cease to accrue from and after the date of
redemption, and all rights with respect to such shares shall forthwith on such
redemption date cease and terminate, except only the right of holders thereof to
receive the redemption price therefor, but without interest. All shares of
Preferred Stock redeemed, purchased, retired or surrendered to the corporation,
or otherwise acquired in any manner by the corporation, whether upon exchange or
otherwise, shall be cancelled and shall not be reissued; and at any time, and
from time to time, upon the reacquisition by the corporation of any shares of
Preferred Stock, by whatever means, and upon the filing and recording of the
necessary certificate referred to in Section 244(c) of the Delaware Corporation
Law, or other applicable requirements, if any, of the laws of the State of
Delaware, or it no certificate is then so required, the authorized Capital Stock
of the corporation will be reduced and the Certificate of Incorporation
accordingly amended without further action by the stockholders.
(3) In the event of any liquidation, dissolution or winding up
of the affairs of the corporation, either voluntary or involuntary, the holders
of the Preferred Stock shall be entitled to receive $100 per share, together
with a sum equal to any and all accrued dividends thereon before any
distribution or payment shall be made to the holders of any stock ranking junior
to the Preferred Stock. Upon the payment in full to the holders of the Preferred
Stock of the preferential amounts aforesaid, all of the remaining assets and
funds of the corporation shall be distributed among the holders of the Common
Stock. A statutory merger or consolidation of the corporation into or with
another corporation or corporations, or the transfer by the corporation of
substantially all of its assets to another corporation in consideration of
securities or stock in such other corporation shall not be deemed to be a
liquidation, dissolution or winding up of the affairs of the corporation within
the meaning of this paragraph.
(4) The holders of the Preferred Stock as such shall not be
entitled to vote at any stockholders' meeting; provided, however, that in the
event of default in the payment of dividends upon the Preferred Stock and such
default shall continue so that at any time such dividends shall be in arrears to
the extent of four or more quarterly dividend payments, then the holders of the
Preferred Stock shall have the same voting rights as the holders of the Common
Stock, namely, one vote for each share of stock. If, at any time after the
holders of the Preferred Stock have become entitled to vote as aforesaid, all
accrued dividends on such Preferred Stock shall have been paid, or if all of
such Preferred Stock shall have been redeemed or called for redemption, and the
redemption price thereof paid or set apart, then the voting power of the holders
of such Preferred Stock shall cease.
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DIVISION II
COMMON STOCK
LIMITATIONS, RELATIVE RIGHTS AND POWERS
IN RESPECT OF SHARES OF COMMON STOCK
(1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed pursuant to Paragraph (1) of Division I)
shall have been met, then and not otherwise, the holders of Common Stock shall
be entitled to receive, to the extent permitted by law, such dividends as may be
declared from time to time by the Board of Directors.
(2) After the distribution in full of the preferential amount
(fixed pursuant to Paragraph (3) of Division I) to the holders of the Preferred
Stock, in the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding-up of the corporation, the holders of the
Common Stock shall be entitled to receive all the remaining assets of the
corporation of whatever kind available for distribution to stockholders ratably
in proportion to the number of shares of Common Stock held by them respectively.
(3) Except as may be otherwise required by law or by this
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by him on all matters voted upon by the
stockholders.
DIVISION III
OTHER PROVISIONS
No holder of stock of any class of the corporation shall be
entitled as a matter of right to purchase or subscribe for any part of any
unissued stock of any class, or of any additional stock of any class of Capital
Stock of the corporation, or of any bonds, certificates of indebtedness,
debentures, or other securities convertible into stock of the corporation, now
or hereafter authorized, but any such stock or other securities convertible into
stock may be issued and disposed of pursuant to resolution by the Board of
Directors to such persons, firms, corporations or associations and upon such
terms and for such consideration as the Board of Directors in the exercise of
its discretion may determine and as may be permitted by law. Any and all shares
of stock so issued for which the consideration so fixed has been paid or
delivered to the corporation shall be fully paid and not liable to any further
call.
ARTICLE V
In furtherance, and not in limitation of the powers conferred
by statute, the Board of Directors of the corporation is expressly authorized:
A. Subject to the foregoing provisions of this Certificate,
without the assent or vote of the stockholders from time to time, to fix the
times for the declaration and payment of dividends, to fix and vary the amount
to be reserved as working capital, to set apart out of any of the funds of the
corporation available for dividends a reserve or reserves for any proper purpose
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and to abolish any such reserve in the manner in which it was created; subject
to the limitations imposed by law and by the provisions of this Certificate, to
fix and determine what portion of the consideration received upon any issue of
stock shall constitute capital and what portion, if any, paid-in surplus, to
cause dividends to be paid from such paid-in surplus, in the same manner as
though the same were net profits or earned surplus, to determine whether
dividends upon the Common Stock shall be declared and paid in cash or capital
stock of the corporation or in other property, to determine the use and
disposition of any surplus or net profits of the corporation, and to use and
apply any such surplus or net profits for the purchase or acquisition of bonds
or other obligations or shares of stock of the corporation to such extent and in
such manner and upon such terms as the Board of Directors shall deem expedient,
and shares of stock of the corporation so purchased or acquired may be resold
unless such shares have been cancelled and retired for the purpose of decreasing
the stock of the corporation as provided by law.
B. From time to time to determine whether and to what extent,
and at what time and place, and under what conditions and regulations, the
accounts and books of the corporation, or any of them, shall be open to the
inspection of any stockholders; and no stockholder shall have any right to
inspect any account or book or document of the corporation except as conferred
by law or by the bylaws, or as authorized by the Board of Directors.
C. To make, alter, amend or repeal the bylaws of the
corporation.
D. Without the assent or vote of the stockholders, from time
to time to authorize the payment to the directors, or any of them, of such fee
or other compensation for attendance at meetings of the Board or of any
Committee, and/or for other services rendered to the corporation, as the Board
of Directors may approve.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon it, the Board if Directors is hereby empowered
to exercise all such powers and to do all such acts and things as may be
exercised or done by the corporation subject, however, to the provisions of the
statutes of Delaware, of the Certificate of Incorporation and to any bylaws from
time to time made by the stockholders; provided, however, that no bylaws so made
shall invalidate any prior act of the directors which would have been valid if
such bylaws had not been made.
ARTICLE VI
The number of directors of the corporation shall be eight (8)
or such other number as may be determined from time to time by resolution
adopted by a majority of the entire Board or by the stockholders. As used in
this Article, "entire Board" means the total number of directors which the
corporation would have if there were no vacancies. In the event that the size of
the Board is increased by such a resolution, or in the event of the death,
resignation or removal of a director, the vacancy or vacancies so resulting
shall be filled by a vote of a majority of the directors then in office or by
the stockholders. No decrease in the size of the Board shall shorten the term of
any incumbent director.
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ARTICLE VII
Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said Court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the Court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
ARTICLE VIII
(a) The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination if any action, suit or proceeding by judgment, order, settlement,
conviction, or plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the beat interests of
the corporation, and with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fee) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if
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he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery of Delaware or such other court shall deem proper.
(c) To the extent that any person referred to in paragraphs
(a) and (b) of this Article has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to therein or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this
Article (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (a) and (b).
Such determination shall be made (i) by the Board of Directors by a majority
vote of a quorum (as defined in the By-Laws of the corporation) consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such quorum is not obtainable or even if obtainable a quorum or disinterested
directors so directs, by independent legal counsel in a written opinion or (iii)
by the stockholders.
(e) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation.
(f) The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any statute, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person. Notwithstanding the provisions of this Article, the
corporation may indemnify any person referred to in paragraphs (a) and (b) of
this Article to the full extent permitted under the laws of Delaware and any
other applicable laws, now or hereafter in effect.
(g) The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such,
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whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article."
3. Each of the 2,295,184 shares of Common Stock, par value
$1.00 per share (the "Old Common Stock"), of the corporation issued and
outstanding immediately prior to the date of effectiveness of this restated
certificate of incorporation, shall, effective upon the filing of this restated
certificate of incorporation, be changed into 1/229.5184 of one share of Common
Stock, par value $10.00 per share (the "New Common Stock"). As soon as
practicable after the filing of this restated certificate of incorporation, each
holder of shares of Old Common Stock shall, upon presentation of one or more
certificates representing such shares for surrender to the corporation or to its
agent designated for that purpose, be entitled to receive in exchange therefor
certificates representing the number of shares of New Common Stock into which
such shares of Old Common Stock shall have been changed as set forth herein.
Until so surrendered, each certificate which prior to the filing of this
restated certificate of incorporation represented shares of Old Common Stock
shall be deemed, for all purposes, to evidence ownership of the number of shares
of New Common Stock which the holder thereof would have been entitled to receive
upon its surrender to the corporation. Fractions of shares of New Common Stock
shall be issued where necessary pursuant to the provisions of this restated
certificate of incorporation, and the holder of each such fractional share shall
be entitled, in proportion to his fractional holding, to exercise voting rights,
receive dividends and participate in liquidating distributions.
4. The capital of the corporation shall be reduced in
accordance with the change in the Old Common Stock herein certified. A
certificate of reduction of capital pursuant to section 244(c) of the General
Corporation Law of the State of Delaware is being filed with this restated
certificate of incorporation.
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5. This restated certificate of incorporation was duly adopted
by written consent of the stockholders of the corporation in accordance with the
provisions of Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware.
Signed at Kansas City, Missouri, on April 30, 1979.
/s/ B.J. Hinkle, Chairman
-------------------------
B.J. Hinkle, Chairman
ATTEST:
/s/ Bettie L. Robinson
-----------------------------
Bettie L. Robinson, Secretary
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CERTIFICATE OF MERGER
OF DOMESTIC AND FOREIGN CORPORATIONS
INTO
INTERSTATE BRANDS CORPORATION
Pursuant to Section 252(c) of the General Corporation Law of
the state of Delaware (the "DGCL") , Interstate Brands Corporation, a Delaware
corporation ("Brands"), one of the constituent corporations to and the surviving
corporation in the merger with the other twelve (12) constituent corporations to
the merger as listed in Paragraph 1 herein (the "Merged Constituent
Corporations") have executed this Certificate of Merger in accordance with
Section 103 of the DGCL.
1. The names and states of incorporation of Brands and the
Merged Constituent Corporations are:
<TABLE>
<CAPTION>
MAKE OF CORPORATION STATE OF INCORPORATION
------------------- ----------------------
<S> <C>
Interstate Brands Corporation Delaware
Purity Baking Company Illinois
Interstate Bakeries Corporation Delaware
Interstate Brands Company - Charlotte, Inc. Delaware
Interstate Brands Company - Florence, Inc. Delaware
Interstate Brands Company - Jacksonville, Inc. Delaware
Interstate Brands Company - Knoxville, Inc. Delaware
Interstate Brands Company - Orlando, Inc. Delaware
Interstate Brands Company - Rocky Mount, Inc. Delaware
Interstate Brands Company - Winston Salem, Inc. Delaware
Interstate Brands Company - Cotton One, Inc. Utah
Interstate Brands Company - Facilities, Inc. Delaware
Cotton Bros. Baking Co., Inc. Mississippi
</TABLE>
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<PAGE> 11
2. The Agreement and Plan of Merger dated June 1, 1990 (the
"Plan"), pursuant to which the Merged Constituent Corporations will be merged
with and into Brands (the "Merger"), has been approved, adopted, certified,
executed and acknowledged by each of Bakeries, Brands and the Merged Constituent
Corporations in accordance with Section 252(c) of the DGCL and in accordance
with the appropriate provisions of the laws of the respective states of
incorporation of each of the Merged Constituent Corporations.
3. The effective date of the Merger of the undersigned
corporations is to be June 2, 1990.
4. The surviving corporation in the Merger is Interstate
Brands Corporation (the "Surviving Corporation"), and it shall be governed by
the laws of the State of Delaware.
5. The Restated Certificate of Incorporation of Brands shall
be amended as set forth in Exhibit A attached hereto, and as so amended, shall
be the Restated Certificate of Incorporation of the Surviving Corporation until
thereafter amended as provided by law.
6. The executed Plan is on file at the principal place of
business of Brands, the address of which is Interstate Brands Corporation, 12
East Armour Boulevard, Kansas City, Missouri 64111.
7. A copy of the Plan will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of Brands or of any
of the Merged Constituent Corporations.
8. The authorized capital stock of each Merged Constituent
Corporation which is not incorporated under the laws of the State of Delaware is
as follows:
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<TABLE>
<CAPTION>
NAME OF STATE OF AUTHORIZED
CORPORATION INCORPORATION CAPITAL STOCK
----------- ------------- -------------
<S> <C> <C>
Purity Baking Company Illinois 1,000
Interstate Brands Company - Utah 25,000
Cotton One, Inc.
Cotton Bros. Baking Co., Inc. Mississippi 1,776
</TABLE>
IN WITNESS WHEREOF, this Certificate of Merger has been executed on the
1st day of June 1990.
INTERSTATE BRANDS CORPORATION
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
PURITY BAKING COMPANY
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
<PAGE> 13
INTERSTATE BAKERIES CORPORATION
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
INTERSTATE BRANDS COMPANY -
CHARLOTTE, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
INTERSTATE BRANDS COMPANY -
FLORENCE, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
<PAGE> 14
INTERSTATE BRANDS COMPANY -
JACKSONVILLE, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
INTERSTATE BRANDS COMPANY -
KNOXVILLE, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
INTERSTATE BRANDS COMPANY -
ORLANDO, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
<PAGE> 15
INTERSTATE BRANDS COMPANY -
ROCKY MOUNT, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
INTERSTATE BRANDS COMPANY -
WINSTON SALEM, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
INTERSTATE BRANDS COMPANY -
COTTON ONE, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
<PAGE> 16
INTERSTATE BRANDS COMPANY -
FACILITIES, INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
COTTON BROS. BAKING CO., INC.
By /s/ Charles A. Sullivan
--------------------------
Charles A. Sullivan
President
ATTEST:
/s/ Ray Sandy Sutton
--------------------------
Ray Sandy Sutton
Secretary
<PAGE> 17
EXHIBIT A
AMENDMENT TO RESTATED CERTIFICATE
OF INCORPORATION OF
INTERSTATE BRANDS CORPORATION
ARTICLE IV
The total number of shares of all classes of stock which the
corporation shall have authority to issue is Five Million Seven Thousand
Twenty-Six (5,007,026) shares; consisting of:
(a) Five Million (5,000,000) shares of preferred
stock, no par value (hereinafter referred to as "Preferred Stock");
(b) Six Thousand Twenty-Six (6,026) shares of $4.80
Dividend Cumulative Preferred Stock, without par value (hereinafter
referred to as "$4.80 Preferred Stock"); and
(c) One Thousand (1,000) shares of Common stock, par
value $.10 per share (hereinafter referred to as "Common Stock").
A. PREFERRED STOCK:
1. The authorized but unissued shares of Preferred Stock as well as any
shares of Preferred Stock held as treasury shares may be issued from
time to time, in one or more series, each of such series to be
distinctly designated, at such time or times, in such amounts and
manner, for such consideration, whether in cash or property or
otherwise, and to such persons as may be fixed and determined by the
Board of Directors of the corporation. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there
may be different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the preferences
and relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at
any time outstanding; and, subject to the provisions of subparagraph 2
of this Paragraph A of this Article IV, the Board of Directors of the
corporation is hereby expressly granted authority to fix by resolution
or resolutions adopted prior to the issuance of any stares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting the
generality of the foregoing, the following:
a. The distinctive designation and the
number of shares of Preferred Stock that shall constitute such
series, which number may be increased (except where otherwise
provided by the Board of Directors) or decreased (but not
below the number of shares
<PAGE> 18
thereof then outstanding) from time to time by like action of
the Board of Directors;
b. The rate and times at which, and the
terms and conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to the
dividends payable on any other class or classes or series of
the same or other classes of stock of the corporation and
whether such dividends shall be cumulative or noncumulative;
c. The right, if any, of the holders of
Preferred Stock of such series to convert the same into or
exchange the same for shares of any other class or classes or
series of the same or other classes of stock of the
corporation and the terms and conditions of such conversion or
exchange;
d. Whether or not Preferred Stock of such
series shall be subject to redemption, the redemption price or
prices, the time or times at which and the terms and
conditions on which Preferred Stock of such series may be
redeemed;
e. Whether or not Preferred Stock of such
series shall be subject to exchange for debentures of the
corporation, the rate or rates of exchange, the time or times
at which and the terms and conditions on which Preferred Stock
of such series may be exchanged;
f. The rights, if any, of the holders of
Preferred Stock of such series upon the voluntary or
involuntary liquidation, merger, consolidation, distribution
or sale of assets, dissolution or winding-up of the
corporation;
g. The terms of the sinking fund or
redemption or purchase account, if any, to be provided for the
Preferred Stock of such series; and
h. The voting powers, if any, of the holders
of such series of Preferred Stock which may include the right,
voting as a series by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a class,
to elect one or more directors of the corporation if there
shall have been a default in the payment of dividends on any
one or more series of Preferred Stock or under such other
circumstances and on such conditions as the Board of Directors
may determine; provided, however, that each holder of
Preferred Stock shall have no more than one vote in respect of
each share of
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<PAGE> 19
Preferred Stock held by him on any matter upon which he is
entitled to vote.
2. The relative powers, preferences and rights of
each series of Preferred Stock in relation to the powers, preferences
and rights of each other series of Preferred Stock and the $4.80
Preferred Stock shall, in each case, be as fixed from time to time by
the Board of Directors by resolution or resolutions adopted pursuant to
authority granted in subparagraph 1 of this Paragraph A of this Article
IV and the consent, by class or series vote or otherwise, of the
holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors or any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by
the Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to Paragraph A of this Article IV that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred
Stock.
B. $4.80 PREFERRED STOCK:
1. Holders of the $4.80 Preferred Stock shall be
entitled to receive, when and as declared from the net profits or from
the net assets in excess of capital legally available therefor,
cumulative dividends at the rate of $4.80 per share per annum, and no
more, payable quarterly, before any dividends shall be declared or paid
upon or set apart for the Common Stock, and such dividends shall be
cumulative from April 1, 1947. Whenever the cumulative dividends on the
$4.80 Preferred Stock for all previous dividend periods and for the
current dividend period shall have been declared and paid, or a sum
sufficient for the payment thereof set apart, the Board of Directors
may declare dividends on the Common Stock out of any remaining net
profits or out of any remaining assets in excess of capital to the
extent permitted by the Delaware Corporation Law.
2. The $4.80 Preferred Stock may be redeemed at any
time as a whole or from time to time in part at the option of the Board
of Directors upon notice duly given as hereinafter provided, by paying
therefor in cash a sum equivalent to $105 per share, together with the
amount of any and all accrued dividends thereon. Notice of every such
redemption of $4.80 Preferred Stock shall be mailed at least thirty
(30) days prior to the date therein fixed for such redemption,
addressed to the holders of record of the shares to be redeemed at
their respective addresses as the same shall appear upon the stock
record books of the corporation. If at any time less than the whole of
the $4.80 Preferred Stock at the time outstanding shall be called for
redemption, the shares so to be redeemed shall be determined by lot or
in such other manner as may be approved by the Board of Directors and
as may be permitted by the rules of any stock exchange upon which the
shares of $4.80 Preferred Stock may
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<PAGE> 20
at the time be listed. Subject to the limitations and provisions herein
contained, the Board of Directors shall have full power and authority
to prescribe the manner in which and the terms and conditions upon
which the $4.80 Preferred Stock shall be redeemed from time to time. If
such notice of redemption shall have been duly given and if, on or
before the redemption date specified therein, the funds necessary for
such redemption shall have been set aside by the corporation separate
and apart from its other funds in trust for the pro rata benefit of the
holders of the shares so called for redemption, then, notwithstanding
that any certificate for shares of $4.80 Preferred Stock so called for
redemption shall not have been surrendered for cancellation, the shares
represented thereby shall no longer be deemed outstanding and the right
to receive dividends thereon shall cease to accrue from and after the
date of redemption, and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only the
right of holders thereof to receive the redemption price therefor, but
without interest. All shares of $4.80 Preferred Stock redeemed,
purchased, retired or surrendered to the corporation, or otherwise
acquired in any manner by the corporation, whether upon exchange or
otherwise, shall be cancelled and shall not be reissued; and at any
time, and from time to time, upon the reacquisition by the corporation
of any shares of $4.80 Preferred Stock, by whatever means, and upon the
filing and recording of the necessary certificate referred to in
Section 244(c) of the Delaware Corporation Law, or other applicable
requirements, if any, of the laws of the State of Delaware, or if no
certificate is then so required, the authorized Capital Stock of the
corporation will be reduced and the Certificate of Incorporation
accordingly amended without further action by the stockholders.
3. In the event of any liquidation, dissolution or
winding up of the affairs of the corporation, either voluntary or
involuntary, the holders of the $4.80 Preferred Stock shall be entitled
to receive $100 per share, together with a sum equal to any and all
accrued dividends thereon before any distribution or payment shall be
made to the holders of any stock ranking junior to the $4.80 Preferred
Stock. Upon the payment in full to the holders of the $4.80 Preferred
Stock of the preferential amounts aforesaid and to the holders of any
series of Preferred Stock the preferential amount thereof, all of the
remaining assets and funds of the corporation shall be distributed
among the holders of the Common Stock. A statutory merger or
consolidation of the corporation into or with another corporation or
corporations, or the transfer by the corporation of substantially all
of its assets to another corporation in consideration of securities or
stock in such other corporation shall not be deemed to be a
liquidation, dissolution or winding up of the affairs of the
corporation within the meaning of this paragraph.
4. The holders of the $4.80 Preferred Stock as such
shall not be entitled to vote at any stockholders' meeting; provided,
however, that in the event of default in the payment of dividends upon
the $4.80 Preferred Stock and such default shall continue so that at
any time such dividends shall be in arrears to the extent of four or
more quarterly dividend payments, then the holders of the $4.80
Preferred Stock shall have the same voting rights as the holders of the
Common Stock, namely,
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<PAGE> 21
one vote for each share of stock. If, at any time after the holders of
the $4.80 Preferred Stock have become entitled to vote as aforesaid,
all accrued dividends on such $4.80 Preferred Stock shall have been
paid, or if all of such $4.80 Preferred Stock shall have been redeemed
or called for redemption, and the redemption price thereof paid or set
apart, then the voting power of the holders of such $4.80 Preferred
Stock shall cease.
C. COMMON STOCK
1. The authorized but unissued shares of Common Stock
as well as any shares of Common Stock held as treasury shares may be
issued from time to time, at such time or times, in such amounts and
manner, for such consideration, whether in cash or property or
otherwise, and to such persons as may be fixed and determined by the
Board of Directors of the corporation.
2. After the requirements with respect to
preferential dividends on the Preferred Stock (fixed in accordance with
the provisions of Paragraph A of this Article IV), if any, and the
$4.80 Preferred Stock shall have been met and after the corporation
shall have complied with all the requirements, if any, with respect to
the setting aside of sums as sinking funds or redemption or purchase
accounts (fixed in accordance with the provisions of Paragraphs A and B
of this Article IV), and subject further to any other conditions which
may be fixed in accordance with the provisions of Paragraphs A and B of
this Article IV, then and not otherwise the holders of Common Stock
shall be entitled to receive such dividends as may be declared from
time to time by the Board of Directors.
3. After distribution in full of the preferential
amount, if any, (fixed in accordance with the provisions of Paragraph A
of this Article IV), to be distributed to the holders of Preferred
Stock in the event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-up of the
corporation and of the preferential amount to be so distributed to the
holders of the $4.80 Preferred Stock, the holders of Common Stock shall
be entitled to receive all the remaining assets of the corporation,
tangible and intangible, of whatever kind available for distribution to
the holders of Common Stock ratably in proportion to the number of
shares of Common Stock held by them respectively.
4. Except as may otherwise be required by law, each
holder of Common Stock shall have one vote in respect of each share of
Common Stock held by him on all matters upon which he is entitled to
vote.
D. OTHER PROVISIONS
1. No holder of any of the shares of any class or
series of stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other securities of the
corporation shall have any preemptive right to purchase or subscribe
for any unissued stock of any class or series or any additional
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<PAGE> 22
shares of any class or series to be issued by reason of any increase of
the authorized capital stock of the corporation, or bonds, certificates
of indebtedness, debentures or other securities convertible into or
exchangeable for stock of the corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class
or series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution or resolutions of the Board of
Directors to such persons, firms, corporations or associations, and
upon such terms as may be deemed advisable by the Board of Directors,
in its sole discretion.
2. The authorized amount of shares of Common Stock,
Preferred Stock and $4.80 Preferred Stock may be increased or
decreased, without a class or series vote, from time to time by the
affirmative vote of the holders of a majority of the stock of the
corporation entitled to vote thereon.
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<PAGE> 23
CERTIFICATE OF DESIGNATION, RIGHTS AND PREFERENCES
OF
$3.50 CUMULATIVE EXCHANGEABLE REDEEMABLE
PREFERRED STOCK
OF
INTERSTATE BRANDS CORPORATION
--------------------------------------------------------------------------------
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
--------------------------------------------------------------------------------
1. DESIGNATION. There is hereby designated a series of
Preferred Stock known as the "$3.50 Cumulative Exchangeable Redeemable Preferred
Stock" (the "Preferred Stock"), no par value, consisting of 3,500,000 shares,
issuable by Interstate Brands Corporation (the "Company") pursuant to authority
granted to the Board of Directors in Article IV of the Company's Restated
Certificate of Incorporation, as amended, which authorizes the issuance of
preferred stock having such rights and other terms as may be determined by tie
Board of Directors.
2. DIVIDENDS. Subject to the rights and preferences of the
holders of any, series of preferred stock of the Company ranking senior to the
Preferred Stock, the holders of shares of the Preferred Stock shall be entitled
to receive, out of the assets of the Company available for the payment of
dividends under the provisions of the General Corporation Law of the State of
Delaware and as and when declared by the Board of Directors, dividends payable
quarterly at a rate of $3.50 per share per annum on the first day of January,
April, July and October in each year ("Dividend Payment Date") commencing with
the first Dividend Payment Date after the first issuance of shares of the
Preferred Stock except that if such date is not a business day then such
dividend shall be payable on tie next succeeding business day. (As used herein,
the term "business day" shall mean any day except a Saturday, Sunday or day on
which banking institutions are authorized or required by law to close in the
City of New York or in Kansas City, Missouri.) Such dividends shall begin to
accrue and be cumulative on outstanding shares of the Preferred Stock (whether
or not in any quarterly period there shall be assets of the Company legally
available for the payment of such dividends) commencing on the date of initial
issuance. Such dividends shall be paid to the holders of record of shares of the
Preferred Stock as they appear on the stock register of the Company on such
date, not exceeding thirty (30) days preceding the Dividend Payment Date
thereof, as shall be fixed by the Board of Directors of the Company. Dividend
arrearages for any past dividend periods may be declared and paid at any time,
without reference to any Dividend Payment Date, to holders of record on such
date, not exceeding forty-five (45) days preceding the payment (late thereof, as
may be fixed by the Board of Directors of the Company. Such dividends shall be
payable in cash; provided, however, that for the first twenty (20) quarterly
dividend periods after April 29, 1988, such dividends may be paid in additional
shares of the Preferred Stock if the Board of Directors of the Company so
directs at a rate of .035 shares of Preferred Stock for each 87.5 cents of such
dividend not paid in cash. The issuance of such Preferred Stock shall constitute
full payment of such dividend. Additional shares of the Preferred Stock issued
in payment of dividends on then outstanding shares of the Preferred Stock shall.
be valued at the Liquidation Preference (as defined
<PAGE> 24
below) thereof. Only whole shares of the Preferred Stock shall be issued upon
the payment of dividends in additional shares of the Preferred Stock. In lieu of
any fraction of a share of the Preferred Stock, each holder otherwise entitled
to receive such fractional share shall receive a payment in cash equal to (i)
his proportionate interest in the net proceeds from the sale on the open market
of the aggregate number of fractional shares of such Preferred Stock or (ii) if
no open market sale can be effected, an amount to be determined by the Board of
Directors of the Company based upon his proportionate interest in such Preferred
Stock. Dividends on shares of the Preferred Stock issued as dividends shall
begin to accrue and be cumulative on outstanding shares of such Preferred Stock
commencing on the Dividend Payment Date on which such Preferred Stock is issued.
Notwithstanding anything contained herein to the contrary, no cash dividends on
shares of the Preferred Stock shall be declared by the Board of Directors of the
Company or paid or set apart for payment by the Company at such time as the
terms and provisions of any contract or other agreement of the Company or any of
its subsidiaries entered into or assumed at or prior to April 29, 1988, or any
refinancings of such contracts or agreements, prohibit such declaration, payment
or setting apart fox payment or provide that such declaration, payment or
setting apart for payment would constitute a breach thereof or a default
thereunder; provided, however, that nothing contained herein shall in any way or
under any circumstances be construed or deemed to require the Board of Directors
of the Company to declare or the Company to pay or set apart for payment any
dividends on shares of the Preferred Stock, whether or not permitted by any of
such agreements. The failure of the Board of Directors of the Company to declare
a cash dividend in reliance upon the immediately preceding sentence shall not in
any way or under any circumstances be construed or deemed to prevent the accrual
of such undeclared dividend.
3. SCHEDULED REDEMPTIONS. On the first quarterly Dividend
Payment Date following each of the sixteenth (16th) through nineteenth (19th)
anniversaries of April 29, 1988, the Company shall redeem for cash an amount of
the Preferred Stock equal to twenty percent (20%) of 1,507,473 shares of the
Preferred Stock less any shares of the Preferred Stock optionally redeemed prior
to the sixteenth (16th) anniversary of April 29, 1988, and on the twentieth
(20th) anniversary of April 29, 1988, the Company shall redeem for cash all
shares of the Preferred Stock then outstanding (all such dates being referred to
herein as the "Scheduled Redemption Dates"), at a redemption price equal to the
Liquidation Preference (as defined below) per share of the Preferred Stock plus
any accrued and unpaid dividends thereon, whether or not declared, to the date
fixed for redemption (the "Redemption Price"). If the assets of the Company
legally available for redemption of the Preferred Stock on any Scheduled
Redemption Date are insufficient to redeem such Preferred Stock on such date,
funds to the extent legally available for such purpose shall be used to redeem
the number of shares of the Preferred Stock which legally may be redeemed. At
any time thereafter when additional funds of the Company are legally available
for the redemption of the Preferred Stock, such funds shall be used immediately
to redeem the balance of the shares of the Preferred Stock required to be
redeemed on such Scheduled Redemption Date.
4. OPTION REDEMPTION. All or any part of the Preferred Stock
may b(t redeemed by the Company at its election at any time and from time to
time in whole or in part, by resolution of the Board of Directors upon thirty
(30) days' notice to each holder of record of shares of the Preferred Stock at a
cash price per share equal to the Redemption Price; provided, however, that if
and when any quarterly dividend shall have accrued on the Preferred Stock and
shall not have been paid or declared and a sufficient sum set apart for payment,
the Company may not redeem any
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<PAGE> 25
shares of the Preferred stock unless all shares of the Preferred Stock then
outstanding are redeemed. No redemption under this provision shall diminish in
any respect the Company's obligation to make the Scheduled Redemptions as
provided in Section 3.
5. SELECTION OF THE PREFERRED STOCK TO BE REDEEMED. If less
than all of the outstanding shares of the Preferred Stock not previously called
for redemption are to be redeemed pursuant to Section 3 or Section 4, the Board
of Directors of the Company shall select the shares of the Preferred Stock, as
nearly as practicable to the nearest whole share, to be redeemed from
outstanding shares not previously called for redemption by lot or pro rata as
determined by the Board of Directors of the Company, in their sole discretion;
provided, however, that the Board of Directors of the Company may in selecting
shares for redemption choose to redeem all shares of the Preferred Stock held by
holders of a number of such shares not to exceed one hundred (100).
6. NOTICE OF REDEMPTION. At least thirty (30) days but not
more than sixty (60) days prior to the date fixed for any redemption of shares
of the Preferred Stock, written notice of such redemption shall be mailed to
each holder of record of shares of the Preferred Stock to be redeemed at the
address shown on the stock transfer books of the Company or, if no such address
appears or is given, at the place where the principal executive office of the
Company is located; provided, however, that no failure to give such notice or
any defect therein or in the mailing thereof shall affect the validity of the
proceedings for such redemption except as to the holder to whom the Company has
failed to give such notice or except as to the holder whose notice was
defective. Each such notice shall specify (i) the number of shares to be
redeemed from such holder, (ii) the date fixed for redemption, (iii) the
Redemption Price, (iv) the place or places at which payment may be obtained, and
(v) that dividends on the shares to be redeemed shall cease to accrue on the
date fixed for such redemption.
7. STATUS OF SHARES OF PREFERRED STOCK UPON REDEMPTION. Upon
surrender of the certificates for any shares of the Preferred Stock so redeemed,
such shares of Preferred Stock shall be redeemed by the Company at the required
Redemption Price. In case fewer than all the shares of Preferred Stock
represented by any such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed shares of Preferred
Stock without cost to the holder thereof. Unless there shall have been a default
in payment of the Redemption Price, from and after any date fixed for
redemption, dividends on the shares of the Preferred Stock so called for
redemption shall cease to accrue, such shares of Preferred Stock stall no longer
be deemed to be outstanding and shall not have the status of shares of Preferred
Stock, and all rights of the holders thereof as stockholders of the Company
(except the right to receive from the Company the Redemption Price without
interest) shall cease with respect to such shares. If at any time the Company
shall have irrevocably deposited in trust with a trustee for the pro rata
benefit of the holders of the shares of the Preferred Stock money or direct
non-callable obligations of the United States maturing as to principal and
interest in such amounts and at such times as are sufficient to pay all future
dividends on and the Redemption Price of the Preferred Stock at the scheduled
dividend payment dates and scheduled redemption thereof, then, from and after
the date on which such provision has been made, such Preferred Stock shall no
longer be deemed to be outstanding except for purposes of accruals of quarterly
dividends and shall not have the status of shares of Preferred Stock, and all
rights of the holders thereof as stockholders of the Company (except the right
to receive from the Company quarterly dividends and the Redemption Price without
interest) shall
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<PAGE> 26
cease with respect to such shares. From and after any date fixed for redemption,
shares of the Preferred Stock redeemed by the Company shall be restored to the
status of authorized but unissued shares of preferred stock, without designation
as to series until such shares are once more designated as part of a particular
series by the Board of Directors of the Company.
8. RANKING. The Preferred Stock shall, with respect to
dividend payments and rights upon liquidation, winding up and dissolution of the
company, rank junior to the Company's $12.00 Cumulative Exchangeable Redeemable
Preferred Stock, the Company's $10.00 Cumulative Exchangeable Redeemable
Preferred Stock, the Company's $4.80 Dividend Cumulative Preferred Stock and all
other classes of capital stock of the company hereafter designated and which by
their terms rank senior to the Preferred Stock with respect to either dividend
rights or rights on liquidation, winding up or dissolution (collectively, the
"Senior Securities"). The Preferred Stock shall rank senior to the Company's
common stock, $.10 par value (the "Common Stock"), and to any other securities
of the Company that are not Senior Securities (such Common Stock and other
junior securities being collectively referred to herein as the "Junior
Securities"). There are no restrictions or limitations an the ability of the
Company to authorize, designate or issue additional classes or shares of Senior
Securities.
9. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
holders of the Preferred Stock shall be entitled to be paid out of the assets of
the Company available for distribution to its stockholders, whether from
capital, surplus or earnings, an amount in cash equal to $25.00 per share (the
"Liquidation Preference"), plus any accrued and unpaid dividends to the date
fixed for liquidation, dissolution or winding up, whether or not declared,
before any distribution is made on any Junior Securities, including the Common
Stock. If upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the assets of the Company available for distribution to
holders of the Preferred Stock shall be insufficient to pay the holders of
outstanding Preferred Stock the full amounts to which they shall be entitled
under this Section 9, the holders of the Preferred Stock shall share equally and
ratably in any distribution of assets of the Company in proportion to the full
Liquidation Preference to which each is entitled. After payment of the full
amount of Liquidation Preference to which they are entitled plus all accrued and
unpaid dividends, whether or not declared, the holders of the Preferred Stock
shall not be entitled to any further participation in any distribution of assets
of the Company. However, neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities, or other consideration) of all
or substantially all of the property or assets of the Company, nor the
consolidation or merger of the Company with any other corporation, shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Company. If the terms of any other preferred stock of the Company require
the Company to redeem such preferred stock upon the sale of all or substantially
all of the assets of the Company, then the Preferred Stock shall be required to
be redeemed on the same terms and conditions and in accordance with the terms of
Sections 3, 4, 5 and 6. Liquidating distributions may not be made with respect
to any Junior Securities without provision having been made for the payment in
full of the aggregate Liquidation Preference of then outstanding shares of the
Preferred Stock and all accrued and unpaid dividends, whether or not declared.
10. VOTING RIGHTS. Except as otherwise provided by law, the
entire voting power for the election of directors and for all other purposes
shall be vested exclusively in the holders of
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<PAGE> 27
the outstanding Common Stock; provided, however, that the holders of the
Preferred Stock, voting as a class, shall have the right to elect two (2)
additional directors to the Board of Directors of the Company if and when (i)
the Company shall have failed to declare and pay an aggregate of six (6)
consecutive quarterly dividends or (ii) the Company shall have failed to redeem
shares of Preferred Stock that are subject to scheduled redemption as provided
in Section 3. Such directors shall be entitled to serve on the Board of
Directors until all accumulated and unpaid dividends have been paid on the
Preferred Stock or the shares of the Preferred Stock required to be redeemed
shall have been redeemed (either of such periods hereinafter called the "Class
Voting Period"). The Board of Directors of the Company shall take all actions
necessary to effect the election of two (2) directors by the holders of the
Preferred Stock under this Section 10, including without limitation, taking such
actions as may be necessary to expand the number of directors comprising the
Board and calling a special meeting of the holders of the Preferred Stock for
the purpose of electing such persons. Upon the expiration of any Class Voting
Period, the term of office of all directors elected by the holders of the
Preferred Stock shall terminate and the number of directors constituting the
Board of Directors of the Company shall, without further action, be reduced by
two (2).
Any director who shall have been elected by holders of the
Preferred Stock may be removed at any time during a Class Voting Period, either
with or without cause, only by the affirmative vote of the holders of record of
a majority of the outstanding shares of the Preferred Stock, and any vacancy
thereby created maybe filled during such Class Voting Period only by the holders
of the Preferred Stock.
In connection with any matter on which holders of the
Preferred Stock are entitled to vote including, without limitation, the election
of directors as set forth in this Section 10 or any matter on which the holders
of the Preferred Stock are entitled to vote as a class or otherwise pursuant to
the General Corporation Law of the State of Delaware or the provisions of the
Certificate of Incorporation of the Company, each holder of the Preferred Stock
shall be entitled to one vote for each share of Preferred Stock held by such
holder.
11. CERTAIN RESTRICTIONS. The Company shall not pay dividends
or make distributions on or repurchase any of its Junior Securities, other than
dividends payable in Junior Securities, if any dividend payment, whether or not
declared, on or with respect to any shares of the Preferred Stock shall not have
been paid in full or provision for payment in full shall not have been made at
or prior to the regular quarterly Dividend Payment Date therefor; provided,
however, that redemptions or repurchases of Junior Securities from any director,
member of management or employee of the company, its parent, or any of its
subsidiaries (collectively, the "Management Stockholders") in connection with
any termination of employment of any such Management Stockholder shall be
permitted without regard to the foregoing limitation so long as the net
aggregate cash payments for or in respect of such redemptions or repurchases of
Junior Securities shall not exceed $2,000,000 in any calendar year; provided
further, however, that the net amount available for such redemptions or
repurchases at any time shall be increased to the extent that less than the full
amounts available in preceding years were expended in such years, but in any
event shall be subject to maximum aggregate cash payments of $4,000,000 in any
calendar year. The maximum amounts specified in the immediately preceding
sentence shall be increased by an amount equal to (i) the net proceeds from the
issuance of any Junior Securities (x) to Management Stockholders after April 29,
1988, or (y) to any persons if the proceeds of such offering are designated by
the Board of Directors
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<PAGE> 28
as being for the purpose of redeeming or repurchasing Junior Securities, less
(ii) any prior redemptions or repurchases of Junior Securities by the Company
from the Management Stockholders.
12. EXCHANGE PROVISIONS. On any Dividend Payment Date, the
Company, at its sole option, may require the exchange of all or any part of the
shares of the Preferred Stock then outstanding for the Company's 14% Junior
Subordinated Exchange Debentures (the "Exchange Debentures") on not less than
thirty (30) nor more than sixty (60) days' notice so long as no default shall
have occurred and be continuing in respect of any indebtedness of the Company
with an aggregate unpaid principal amount in excess of $5,000,000. Holders of
record of outstanding shares of the Preferred Stock as they appear on the stock
register of the Company at the close of business on the record date for such
exchange shall be entitled to receive Exchange Debentures having a principal
amount equal to the Liquidation Preference plus any accrued and unpaid
dividends, whether or not declared, to the date of such exchange in exchange for
each share of Preferred Stock held by them. At the time of such exchange (the
"Exchange Date"), the rights of the holders of the Preferred Stock then
outstanding as stockholders of the Company shall cease (except for the right to
receive the Exchange Debentures) and the persons entitled to receive the
Exchange Debentures issuable upon exchange shall be treated for all purposes as
the holders of record of such Exchange Debentures. In the event such exchange
would result in the issuance of any Exchange Debenture in a principal amount
which is less than $1,000 or which is not an integral multiple of $1,000, each
holder of Preferred Stock otherwise entitled to the Exchange Debentures shall be
entitled to receive a cash payment in lieu thereof equal to (i) such holder's
proportionate interest in the net proceeds from the sale on the open market of
the aggregate amount of such Exchange Debentures or (ii) if no open market sale
can be effected, an amount to be determined by the Board of Directors of the
Company based upon such holder's proportionate interest in such Exchange
Debentures. The person or persons entitled to receive the Exchange Debentures
issuable upon exchange shall be treated for all purposes as the registered
holder or holders of such Exchange Debentures as of the Exchange Date. The
Exchange Debentures will be issued under an Indenture between the Company, as
successor to Interstate Bakeries Corporation, and United Missouri Bank of Kansas
City, N.A., as trustee (the "Indenture") substantially in the form filed as an
Exhibit to the Registration Statement of Interstate Bakeries Corporation on Form
S-4 as filed with the Securities and Exchange Commission (File No. 33-20549).
The Exchange Debentures shall have the terms and benefits provided in the
Indenture.
13. SELECTION OF PREFERRED STOCK TO BE EXCHANGED. If less than
all of the outstanding shares of the Preferred Stock are to be exchanged
pursuant to Section 12, the Board of Directors of the Company shall select the
shares of the Preferred Stock, as nearly as practicable to the nearest whole
share, to be exchanged from the outstanding shares by lot or pro rata as
determined by the Board of Directors of the Company, in their sole discretion;
provided, however, that the Board of Directors of the Company may in selecting
shares to be exchanged choose to exchange all shares of the Preferred Stock held
by holders of a number of such shares not to exceed one hundred (100).
14. NOTICE OF EXCHANGE. At least thirty (30) days but not more
than sixty (60) days prior to the Exchange Date, written notice of such exchange
shall be mailed to each holder of record of shares of the Preferred Stock to be
exchanged at the address shown on the stock transfer books of the Company. Each
such notice shall specify (i) the number of shares of the Preferred
-6-
<PAGE> 29
Stock to be received in the exchange from each holder, (ii) the principal amount
of Exchange Indentures to be issued in exchange for such shares, (iii) the
Exchange Date, (iv) the place or places at which the shares of the Preferred
Stock shall be exchanged for Exchange Debentures, and (v) that dividends on the
shares to be exchanged shall cease to accrue on the Exchange Date.
15. STATUS OF SHARES OF PREFERRED STOCK UPON EXCHANGE. Upon
surrender of the certificates for any of the Preferred stock so exchanged, such
shares of Preferred Stock shall be exchanged by the Company at the required
exchange rate. In case fewer than all the shares of Preferred Stock by any such
certificate are exchanged, a new certificate or certificates shall be issued
representing the unexchanged shares of Preferred Stock without cost to the
holder thereof. From and after any date fixed for exchange, dividends on the
shares of the Preferred Stock so called for exchange shall cease to accrue, such
shares of Preferred Stock shall no longer be deemed to be outstanding and shall
not have the status of shares of Preferred Stock, and all rights of the holders
thereof as stockholders of the Company (except the right to receive from the
Company the Exchange Debentures upon exchange) or the right to receive cash
payments in lieu thereof shall cease with respect to such shares. From and after
any date fixed for exchange, shares of Preferred Stock exchanged for the
Exchange Debentures shall be restored to the status of authorized but unissued
shares of preferred stock, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors of :he Company.
16. The effective date of the Designation of this Corporation
is to be June 2, 1990.
IN WITNESS WHEREOF, said Interstate Brands Corporation has
caused this Certificate to be signed and attested this 1st day of June, 1990.
INTERSTATE BRANDS CORPORATION
By: /s/ Charles A. Sullivan
------------------------------
Charles A. Sullivan, President
ATTEST:
/s/ Ray Sandy Sutton
------------------------------
Ray Sandy Sutton, Secretary
-7-
<PAGE> 30
CERTIFICATE OF DESIGNATION, RIGHTS AND PREFERENCES
OF
$10.00 CUMULATIVE EXCHANGEABLE REDEEMABLE
PREFERRED STOCK
OF
INTERSTATE BRANDS CORPORATION
--------------------------------------------------------------------------------
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
--------------------------------------------------------------------------------
1. DESIGNATION. There is hereby designated a series of
Preferred Stock known as the "$10.00 Cumulative Exchangeable Redeemable
Preferred Stock" (the "Preferred Stock"), no par value, consisting of 350,000
shares, issuable by Interstate Brands Corporation (the "Company") pursuant to
authority granted to the Board of Directors in Article IV of the Company's
Restated Certificate of Incorporation, as amended, which authorizes the issuance
of preferred stock having such rights and other terms as may be determined by
the Board of Directors.
2. DIVIDENDS. Subject to the rights and preferences of the
holders of any series of preferred stock of the Company ranking senior to the
Preferred Stock, the holders of shares of the Preferred Stock shall be entitled
to receive, out of the assets of the Company available for the payment of
dividends under the provisions of the General Corporation Law of the State of
Delaware and as and when declared by the Board of Directors, dividends payable
quarterly at a rate of $10.00 per share per annum on the first day of January,
April, July and October in each year ("Dividend Payment Date") commencing with
the first Dividend Payment Date after the first issuance of shares of the
Preferred Stock except that if such date is not a business day then such
dividend shall be payable on the next succeeding business day. (As used herein,
the term "business day" shall mean any day except a Saturday, Sunday or day on
which banking institutions are authorized or required by law to close in the
City of New York or in Kansas City, Missouri.) Such dividends shall begin to
accrue and be cumulative on outstanding shares of the Preferred Stock (whether
or not in any quarterly period there shall be assets of the Company legally
available for the payment of such dividends) commencing on the date of initial
issuance. Such dividends shall be paid to the holders of record of shares of the
Preferred Stock as they appear on the stock register of the Company on such
date, not exceeding thirty (30) days preceding the Dividend Payment Date
thereof, as shall be fixed by the Board of Directors of the Company. Dividend
arrearages for any past dividend periods may be declared and paid at any time,
without reference to any Dividend Payment Date, to holders of record on such
date, not exceeding forty-five (45) days preceding the payment late thereof, as
may be fixed by the Board of Directors of the Company. Such dividends shall be
payable in cash; provided, however, that for the first twenty-four (24)
quarterly dividend periods after April 29, 1988, such dividends may be paid in
additional shares of the Preferred Stock if the Board of Directors of the
Company so directs at a rate of .025 shares of Preferred Stock for each $2.50 of
such dividend not paid in cash. The issuance of such Preferred Stock shall
constitute full payment of such dividend. Additional shares of the Preferred
Stock issued in payment of dividends on then outstanding
<PAGE> 31
shares of the Preferred Stock shall be valued at the Liquidation Preference (as
defined below) thereof. Only whole shares of the Preferred stock shall be issued
upon the payment of dividends in additional shares of the Preferred Stock. In
lieu of any fraction of a share of the Preferred Stock, each holder otherwise
entitled to receive such fractional share shall receive a payment in cash equal
to (i) his proportionate interest in the net proceeds from the sale on the open
market of the aggregate number of fractional shares of such Preferred Stock or
(ii) if no open market sale can be effected, an amount to be determined by the
Board of Directors of the Company based upon his proportionate interest in such
Preferred Stock. Dividends on shares of the Preferred Stock issued as dividends
shall begin to accrue and be cumulative on outstanding shares of such Preferred
Stock commencing on the Dividend Payment Date on which such Preferred Stock is
issued. Notwithstanding anything contained herein to the contrary, no cash
dividends on shares of the Preferred Stock shall be declared by the Board of
Directors of the Company or paid or set apart for payment by the Company at such
time as the terms and provisions of any contract or other agreement of the
Company or any of its subsidiaries entered into or assumed at or prior to April
29, 1988 or any refinancings of such contracts or agreements, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder; provided, however, that nothing contained
herein shall in any way or under any circumstances be construed or deemed to
require the Board of Directors of the Company to declare or the Company to pay
or set apart for payment any dividends on shares of the Preferred Stock, whether
or not permitted by any of such agreements. The failure of the Board of
Directors of the Company to declare a cash dividend in reliance upon the
immediately preceding sentence shall not in any way or under any circumstances
be construed or deemed to prevent the accrual of such undeclared dividend.
3. SCHEDULED REDEMPTIONS. On the first quarterly Dividend
Payment Date following both the sixteenth (16th) and seventeenth (17th)
anniversaries of April 29, 1988, the Company shall redeem for cash an amount of
the Preferred Stock equal to twenty percent (20%) of 128,000 shares of the
Preferred Stock less any shares of the Preferred Stock optionally redeemed prior
to the sixteenth (16th) anniversary of April 29, 1988, and on the eighteenth
(18th) anniversary of April 29, 1988, the Company shall redeem for cash all
shares of the Preferred Stock then outstanding (all such dates being referred to
herein as the "Scheduled Redemption Dates"), at a redemption price equal to the
Liquidation Preference (as defined below) per share of the Preferred Stock plus
any accrued any unpaid dividends thereon, whether or not declared, to the date
fixed for redemption (the "Redemption Price"). If the assets of the Company
legally available for redemption of the Preferred Stock on any Scheduled
Redemption Date are insufficient to redeem such Preferred Stock on such date,
funds to the extent legally available for such purpose shall be used to redeem
the number of shares of the Preferred Stock which legally may be redeemed. At
any time thereafter when additional funds of the Company are legally available
for the redemption of the Preferred Stock, such funds shall be used immediately
to redeem the balance of the shares of the Preferred Stock required to be
redeemed on such Scheduled Redemption Date.
4. OPTIONAL REDEMPTION. All or any part of the Preferred Stock
may be redeemed by the Company at its election at any time and from time to time
in whole or in part, by resolution of the Board of Directors upon thirty (30)
days' notice to each holder of record of shares of the Preferred Stock at a cash
price per share equal to the Redemption Price, provided,
-2-
<PAGE> 32
however, that if and when any quarterly dividend shall have accrued on the
Preferred Stock and shall not have been paid or declared and a sufficient sum
set apart for payment, the Company may not redeem any shares of the Preferred
Stock unless all shares of the Preferred Stock then outstanding are redeemed. No
redemption under this provision shall diminish in any respect the Company's
obligation to make the Scheduled Redemptions as provided in Section 3.
5. SELECTION OF THE PREFERRED STOCK TO BE REDEEMED. If less
than all of the outstanding shares of the Preferred Stock not previously called
for redemption are to be redeemed pursuant to Section 3 or Section 4, the Board
of Directors of the Company shall select the shares of the Preferred Stock, as
nearly as practicable to the nearest whole share, to be redeemed from
outstanding shares not previously called for redemption by lot or pro rata as
determined by the Board of Directors of the Company, in their sole discretion;
provided, however, that the Board of Directors of the Company may in selecting
shares for redemption choose to redeem all shares of the Preferred Stock held by
holders of a number of such shares not to exceed one hundred (100).
6. NOTICE OF REDEMPTION. At least thirty (30) days but not
more than sixty (60) days prior to the date fixed for any redemption of shares
of the Preferred Stock, written notice of such redemption shall be mailed to
each holder of record of shares of the Preferred Stock to be redeemed at the
address shown on the stock transfer books of the company or, if no such address
appears or is given, at the place where the principal executive office of the
Company is located; provided, however, that no failure to give such notice or
any defect therein or in the mailing thereof shall affect the validity of the
proceedings for such redemption except as to the holder to whom the Company has
failed to give such notice or except as to the holder whose notice was
defective. Each such notice shall specify (i) the number of shares to be
redeemed from such holder, (ii) the date fixed for redemption, (iii) the
Redemption Price, (iv) the place or places at which payment may be obtained, and
(v) that dividends on the shares to be redeemed shall cease to accrue on the
date fixed for such redemption.
7. STATUS OF SHARES OF PREFERRED STOCK UPON REDEMPTION. Upon
surrender of the certificates for any shares of the Preferred Stock so redeemed,
such shares of Preferred Stock shall be redeemed by the Company at the required
Redemption Price. In case fewer than all the shares of Preferred Stock
represented by any such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed shares of Preferred
Stock without cost to the holder thereof. Unless there shall have been a default
in payment of the Redemption Price, from and after any date fixed for
redemption, dividends on the shares of the Preferred Stock so called for
redemption shall cease to accrue, such shares of Preferred Stock shall no longer
be deemed to be outstanding and shall not have the status of shares of Preferred
Stock, and all rights of the holders thereof as stockholders of the Company
(except the right to receive from the Company the Redemption Price without
interest) shall cease with respect to such shares. If at any time the Company
shall have irrevocably deposited in trust with a trustee for the pro rata
benefit of the holders of the shares of the Preferred Stock money or direct
non-callable obligations of the United States maturing as to principal and
interest in such amounts and at such times as are sufficient to pay all future
dividends on and the Redemption Price of the Preferred Stock at the scheduled
dividend payment dates and scheduled redemption thereof, then, from and after
the date on which such provision has been made, such Preferred Stock shall no
-3-
<PAGE> 33
longer be deemed to be outstanding except for purposes of accruals of quarterly
dividends and shall not have the status of shares of Preferred Stock, and all
rights of the holders thereof as stockholders of the Company (except the right
to receive from the Company quarterly dividends and the Redemption Price without
interest) shall cease with respect to such shares. From and after any date fixed
for redemption, shares of the Preferred Stock redeemed by the Company shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors of the Company.
8. RANKING. The Preferred Stock shall, with respect to
dividend payments and rights upon liquidation, winding up and dissolution of the
Company, rank junior to the Company's $4.80 Dividend Cumulative Preferred Stock.
The Preferred Stock shall rank senior to the Company's $12.00 Cumulative
Exchangeable Redeemable Preferred Stock, the Company's $3.50 Cumulative
Exchangeable Redeemable: Preferred Stock, the Company's common stock, $.10 par
value (the "Common Stock"), and all other classes of capital stock of the
Company hereafter designated (such Common Stock and other junior securities
being collectively referred to herein as the "Junior Securities").
9. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
holders of the Preferred Stock shall be entitled to be paid out of the assets of
the Company available for distribution to its stockholders, whether from
capital, surplus or earnings, an amount in cash equal to $100.00 per share (the
"Liquidation Preference"), plus any accrued and unpaid dividends to the date
fixed for liquidation, dissolution or winding up, whether or not declared,
before any distribution is made on any Junior Securities, including the Common
Stock. If upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the assets of the Company available for distribution to
holders of the Preferred Stock shall be insufficient to pay the holders of
outstanding Preferred Stock the full amounts to which they shall be entitled
under this Section 9, the holders of the preferred Stock shall share equally and
ratably in any distribution of assets of the Company in proportion to the full
Liquidation Preference to which each is entitled. After payment of the full
amount of Liquidation Preference to which they are entitled plus all accrued and
unpaid dividends, whether or not declared, the holders of the Preferred Stock
shall not be entitled to any further participation in any distribution of assets
of the Company. However, neither the. voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities, or other consideration) of all
or substantially all of the property or assets of the Company, nor the
consolidation or merger of the Company with any other corporation, shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Company. If the terms of any other preferred stock of the Company require
the Company to redeem such preferred stock upon the sale of all or substantially
all of the assets of the Company, then the Preferred Stock shall be required to
be redeemed on the same terms and conditions and in accordance with the terms of
Sections 3, 4, 5 and 6. Liquidating distributions may not be made with respect
to any Junior Securities without provision having been made for the payment in
full of the aggregate Liquidation Preference of then outstanding shares of the
Preferred Stock and all accrued and unpaid dividends, whether or not declared.
-4-
<PAGE> 34
10. VOTING RIGHTS. Except as otherwise provided by law, the
entire voting power for the election of directors and for all other purposes
shall be vested exclusively in the holders of the outstanding Common Stock;
provided, however, that the holders of the Preferred Stock, voting as a class,
shall have the right to elect one (1) additional director to the Board of
Directors of the Company if and when (i) the Company shall have failed to
declare and pay an aggregate of six (6) consecutive quarterly dividends or (ii)
the Company shall have failed to redeem shares of Preferred Stock that are
subject to scheduled redemption as provided in Section 3. Such director shall be
entitled to serve on the Board of Directors until all accumulated and unpaid
dividends have been paid on the Preferred Stock or the shares of the Preferred
Stock required to be redeemed shall have been redeemed (either of such periods
hereinafter called the "Class Voting Period"). The Board of Directors of the
"Company shall take all actions necessary to effect the election of one (1)
director by the holders of the Preferred stock under this Section 10, including
without limitation, taking such actions as may be necessary to expand the number
of directors comprising the Board and calling a special meeting of the holders
of the Preferred Stock for the purpose of electing such persons. Upon the
expiration of any Class Voting Period, the term of office of any director
elected by the holders of the Preferred Stock shall terminate and the number of
directors constituting the Board of Directors of the Company shall, without
further action, be reduced by one (1).
Any director who shall have been elected by holders of the
Preferred Stock may be removed at any time during a class Voting Period, either
with or without cause, only by the affirmative vote of the holders of record of
a majority of the outstanding shares of the Preferred Stock and any vacancy
thereby created may be filled during such Class Voting Period only by the
holders of the Preferred Stock.
In connection with any matter on which holders of the
Preferred Stock are entitled to vote including, without limitation, the election
of a director as set forth in this Section 10 or any matter on which the holders
of the Preferred Stock are entitled to vote as a class or otherwise pursuant to
the General Corporation Law of the State of Delaware or the provisions of the
Certificate of Incorporation of the Company, each holder of the Preferred Stock
shall be entitled to one vote for each share of Preferred Stock held by such
holder.
11. CERTAIN RESTRICTIONS. The Company shall not pay dividends
or make distributions on or repurchase any of its Junior Securities, other than
dividends payable in Junior securities, if any dividend payment, whether or not
declared, on or with respect to any shares of the Preferred Stock shall not have
been paid in full or provision for payment in full shall not have been made at
or prior to the regular quarterly Dividend Payment Date therefor; provided,
however, that redemptions or repurchases of Junior Securities from any director,
member of management or employee of the Company, its parent, or any of its
subsidiaries (collectively, the "Management Stockholders") in connection with
any termination of employment of any such Management Stockholder shall be
permitted without regard to the foregoing limitation so long as the net
aggregate cash payments for or in respect of such redemptions or repurchases of
Junior Securities shall not exceed $5,000,000 in any calendar year; provided
further, however, that the net amount available for such redemptions or
repurchases at any time shall be increased to the extent that less than the full
amounts available in preceding years ware expended in such years, but in any
event shall be subject to maximum aggregate cash payments of $10,000,000 in any
-5-
<PAGE> 35
calendar year. The maximum amounts specified in the immediately preceding
sentence shall be increased by an amount equal to (i) the not proceeds from the
issuance of any Junior Securities (x) to Management Stockholders after April 29,
1988, or (y) to any persons if the proceeds of such offering are designated by
the Board of Directors as being for the purpose of redeeming or repurchasing
Junior Securities, less (ii) any prior redemptions or repurchases of Junior
Securities by the company from the Management Stockholders.
12. EXCHANGE PROVISIONS. On any Dividend Payment Date, the
Company, at its sole option, may require the exchange of all or any part of the
shares of the Preferred Stock then outstanding for the company's 10% Junior
Subordinated Exchange Debentures (the "Exchange Debentures") on not less than
thirty (30) nor more than sixty (60) days' notice so long as no default shall
have occurred and be continuing in respect of any indebtedness of the Company
with an aggregate unpaid principal amount in excess of $5,000,000. Holders of
record of outstanding shares of the Preferred Stock as they appear on the stock
register of the Company at the close of business on the record date for such
exchange shall be entitled to receive Exchange Debentures having a principal
amount equal to the Liquidation Preference plus any accrued and unpaid
dividends, whether or not declared, to the date of such exchange in exchange for
each share of Preferred Stock held by them. At the time of such exchange (the
"Exchange Date"), the rights of the holders of the Preferred Stock then
outstanding as stockholders of the Company shall cease (except for the right to
receive the Exchange Debentures) and the persons entitled to receive the
Exchange Debentures issuable upon exchange shall be treated for all purposes as
the holders of record of such Exchange Debentures. In the event such exchange
would result in the issuance of any Exchange Debenture in a principal amount
which is less than $1,000 or which is not an integral multiple of $1,000, each
holder of Preferred Stock otherwise entitled to the Exchange Debentures shall be
entitled to receive a cash payment in lieu thereof equal to (i) such holder's
proportionate interest in the net proceeds from the sale on the open market of
the aggregate amount of such Exchange Debentures or (ii) if no open market sale
can be effected, an amount to be determined by the Board of Directors of the
Company based upon such holder's proportionate interest in such Exchange
Debentures. The person or persons entitled to receive the Exchange Debentures
issuable upon exchange shall be treated for all purposes as the registered
holder or holders of such Exchange Debentures as of the Exchange Date. The
Exchange Debentures will be issued under an Indenture between the Company, as
successor to Interstate Bakeries Corporation, and The Overland Park State Bank
and Trust Company, as trustee (the "Indenture"), substantially in the form filed
with the Secretary of the Company. The Exchange Debentures shall have the terms
and benefit; provided in the Indenture.
13. SELECTION OF PREFERRED STOCK TO BE EXCHANGED. If less than
all of the outstanding shares of the Preferred Stock are to be exchanged
pursuant to Section 12, the Board of Directors of the Company shall select the
shares of the Preferred Stock, as nearly as practicable to the nearest whole
share, to be exchanged from the outstanding shares by lot or pro rata as
determined by the Board of Directors of the Company, in their sole discretion;
provided, however, that the Board of Directors of the Company may in selecting
shares to be exchanged choose to exchange all shares of the Preferred Stock held
by holders of a number of such shares not to exceed one hundred (100).
-6-
<PAGE> 36
14. NOTICE OF EXCHANGE. At least thirty (30) days but not more
than sixty (60) days prior to the Exchange Date, written notice of such exchange
shall be mailed to each holder of record of shares of the Preferred Stock to be
exchanged at the address shown on the stock transfer books of the Company. Each
such notice shall specify (i) the number of shares of the Preferred Stock to be
received in the exchange from each holder, (ii) the principal amount of Exchange
Debentures to be issued in exchange for such shares, (iii) the Exchange Date,
(iv) the place or places at which the shares of the Preferred Stock shall be
exchanged for Exchange Debentures, and (v) that dividends on the shares to be
exchanged shall cease to accrue on the Exchange Date.
15. STATUS OF SHARES OF PREFERRED STOCK UPON EXCHANGE. Upon
surrender of the certificates for any of the Preferred Stock so exchanged, such
shares of Preferred Stock shall be exchanged by the Company at the required
exchange rate. In case fewer than all the shares of Preferred Stock by any such
certificate are exchanged, a new certificate or certificates shall be issued
representing the unexchanged shares of Preferred Stock without cost to the
holder thereof. From and after any date fixed for exchange, dividends on the
shares of the Preferred Stock so called for exchange shall cease to accrue, such
shares of Preferred Stock shall no longer be deemed to be outstanding and shall
not have the status of shares of Preferred Stock, and all rights of the holders
thereof as stockholders of the Company (except the right to receive from the
Company the Exchange Debentures upon exchange) or the right to receive cash
payments in lieu thereof shall cease with respect to such shares. From and after
any date fixed for exchange, shares of Preferred Stock exchanged for the
Exchange Debentures shall be restored to the status of authorized but unissued
shares of preferred stock, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors of the Company.
16. The effective date of the Designation of this corporation
is to be June 2, 1990.
IN WITNESS WHEREOF, said Interstate Brands Corporation has
caused this Certificate to be signed and attested this 1st day of June, 1990,
INTERSTATE BRANDS CORPORATION
By: /s/ Charles A. Sullivan
------------------------------
Charles A. Sullivan, President
ATTEST:
/s/ Ray Sandy Sutton
------------------------------
Ray Sandy Sutton, Secretary
-7-
<PAGE> 37
CERTIFICATE OF DESIGNATION, RIGHTS AND PREFERENCES
OF
$12.00 CUMULATIVE EXCHANGEABLE REDEEMABLE
PREFERRED STOCK
OF
INTERSTATE BRANDS CORPORATION
--------------------------------------------------------------------------------
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
--------------------------------------------------------------------------------
1. DESIGNATION. There is hereby designated a series of
Preferred Stock known as the "$12.00 Cumulative Exchangeable Redeemable
Preferred Stock" (the "Preferred Stock"), no par value, consisting of 850,000
shares, issuable by Interstate Brands Corporation (the "Company") pursuant to
authority granted to the Board of Directors in Article IV of the Company's
Restated Certificate of Incorporation, as amended, which authorizes the issuance
of preferred stock having such rights and other terms as may be determined by
the Board of Directors.
2. DIVIDENDS. Subject to the rights and preferences of the
holders of any series of preferred stock of the Company ranking senior to the
Preferred Stock, the holders of shares of the Preferred Stock shall be entitled
to receive, out of the assets of the Company available for the payment of
dividends under the provisions of the General Corporation Law of the State of
Delaware and as and when declared by the Board of Directors, dividends payable
quarterly at a rate of $12.00 per share per annum on the first day of January
April, July and October in each year ("Dividend Payment Date") commencing with
the first Dividend Payment Date after the first issuance of shares of the
Preferred Stock except that if such date is not a business day then such
dividend shall be payable on the next succeeding business day. (As used herein,
the term "business day" shall mean any day except a Saturday, Sunday or day on
which banking institutions are authorized or required by law to close in the
City of New York or in Kansas City, Missouri.) Such dividends shall begin to
accrue and be cumulative on outstanding shares of the Preferred Stock (whether
or not in any quarterly period there shall he assets of the Company legally
available for the payment of such dividends) commencing on the date of initial
issuance. Such dividends shall be paid to the holders of record of shares of the
Preferred Stock as they appear on the stock register of the Company on such
date, not exceeding thirty (30) days preceding the Dividend Payment Date
thereof, as shall be fixed by the Board of Directors of the Company. Dividend
arrearages for any past dividend periods may be declared and paid at any time,
without reference to any Dividend Payment Date, to holders of record on such
date, not exceeding forty-five (45) days preceding the payment late thereof, as
may be fixed by the Board of Directors of the Company. Such dividends shall be
payable in cash; provided, however, that for the first twenty-four (24)
quarterly dividend periods after April 29, 1988, such dividends may be paid in
additional shares of the Preferred Stock if the Board of Directors of the
Company so
<PAGE> 38
directs at a rate of .03 shares of Preferred stock for each $3.00 of such
dividend not paid in cash. The issuance of such Preferred Stock shall constitute
full payment of such dividend. Additional shares of the Preferred Stock issued
in payment of dividends on then outstanding shares of the Preferred Stock shall
be valued at the Liquidation Preference (as defined below) thereof. Only whole
shares of the Preferred Stock shall be issued upon the payment of dividends in
additional shares of the Preferred Stock. In lieu of any fraction of a share of
the Preferred Stock, each holder otherwise entitled to receive such fractional
share shall receive a payment in cash equal to (i) his proportionate interest in
the net proceeds from the sale on the open market of the aggregate number of
fractional shares of such Preferred Stock or (ii) if no open market sale can be
effected, an amount to be determined by the Board of Directors of the company
based upon his proportionate interest in such Preferred Stock. Dividends on
shares of the Preferred Stock issued as dividends shall begin to accrue and be
cumulative on outstanding shares of such Preferred Stock commencing on the
Dividend Payment Date on which such Preferred Stock is issued. Notwithstanding
anything contained herein to the contrary, no cash dividends on shares of the
Preferred Stock shall be declared by the Board of Directors of the Company or
paid or set apart of or payment by the Company at such time as the terms and
provisions of any contract or other agreement of the Company or any of its
subsidiaries entered into or assumed at or prior to April 29, 1988 or any
refinancings of such contracts or agreements, prohibit such declaration, payment
or setting apart for payment or provide that such declaration, payment or
setting apart for payment would constitute a breach thereof or a default
thereunder; provided, however, that nothing contained herein shall in any way or
under any circumstances be construed or deemed to require the Board of Directors
of the Company to declare or the Company to pay or set apart for payment any
dividends on shares of the Preferred Stock, whether or not permitted by any of
such agreements. The failure of the Board of Directors of the Company to declare
a cash dividend in reliance upon the immediately preceding sentence shall not in
any way or under any circumstances be construed or deemed to prevent the accrual
of such undeclared dividend.
3. SCHEDULED REDEMPTIONS. On the first quarterly Dividend
Payment Date following each of the sixteenth (16th) through nineteenth (19th)
anniversaries of April 29, 1988, the Company shall redeem for cash an amount of
the Preferred Stock equal to twenty percent (20%) of 18,130 shares of the
Preferred Stock less any shares of the Preferred Stock optionally redeemed prior
to the sixteenth (16th) anniversary of April 29, 1988, and on the twentieth
(20th) anniversary of April 29, 1988, the Company shall redeem for cash all
shares of the Preferred Stock then outstanding (all such dates being referred to
herein as the "Scheduled Redemption Dates"), at a redemption price equal to the
Liquidation Preference (as defined below) per share of the Preferred Stock plus
any accrued and unpaid dividends thereon, whether or not declared, to the date
fixed for redemption (the "Redemption Price"). If the assets of the Company
legally available for redemption of the Preferred Stock on any Scheduled
Redemption Date are insufficient to redeem such Preferred Stock on such date,
funds to the extent legally available for such purpose shall be used to redeem
the number of shares of the Preferred Stock which legally may be redeemed. At
any time thereafter when additional funds of the Company are legally available
for the redemption of the Preferred Stock, such funds shall be used immediately
to redeem the balance of the shares of the Preferred Stock required to be
redeemed on such Scheduled Redemption Date.
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<PAGE> 39
4. OPTIONAL REDEMPTION. All or any part of the Preferred Stock
may be redeemed by the Company at its election at any time and from time to time
in whole or in part, by resolution of the Board of Directors upon thirty (30)
days' notice to each holder of record of shares of the Preferred Stock at a cash
price per share equal to the Redemption Price; provided, however, that if and
when any quarterly dividend shall have accrued on the Preferred Stock and shall
not have been paid or declared and a sufficient sum set apart for payment, the
Company may not redeem any shares of the Preferred Stock unless all shares of
the Preferred Stock then outstanding are redeemed. No redemption under this
provision shall diminish in any respect the Company's obligation to make the
Scheduled Redemptions as provided in Section 3.
5. SELECTION OF THE PREFERRED STOCK TO BE REDEEMED. If less
than all of the outstanding shares of the Preferred Stock not previously called
for redemption are to be redeemed pursuant to Section 3 or Section 4, the Board
of Directors of the Company shall select the shares of the Preferred Stock, as
nearly as practicable to the nearest whole share, to be redeemed from
outstanding shares not previously called, for redemption by lot or pro rata as
determined by the Board of Directors of the company, in their sole discretion;
provided, however, that the Board of Directors of the Company may in selecting
shares for redemption choose to redeem all shares of the Preferred Stock held by
holders of a number of such shares not to exceed one hundred (100).
6. NOTICE OF REDEMPTION. At least thirty (30) days but not
more than sixty (60) days prior to the date fixed for any redemption of shares
of the Preferred Stock, written notice of such redemption shall be mailed to
each holder of record of shares of the Preferred Stock to be redeemed at the
address shown on the stock transfer books of the Company or, if no such address
appears or is given, at the place where the principal executive office of the
Company is located; provided, however, that no failure to give such notice or
any defect therein or in the mailing thereof shall affect the validity of the
proceedings for such redemption except as to the holder to whom the Company has
failed to give such notice or except as to the holder whose notice was
defective. Each such notice shall specify (i) the number of shares to be
redeemed from such holder, (ii) the date fixed for redemption, (iii) the
Redemption Price, (iv) the place or places at which payment may be obtained, and
(v) that dividends on the shares to be redeemed shall cease to accrue on the
date fixed for such redemption.
7. STATUS OF SHARES OF PREFERRED STOCK UPON REDEMPTION. Upon
surrender of the certificates for any shares of the Preferred Stock so redeemed,
such shares of Preferred Stock shall be redeemed by the Company at the required
Redemption Price. In case fewer than all the shares of Preferred Stock
represented by any such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed shares of Preferred
Stock without cost to the holder thereof. Unless there shall have been a default
in payment of' the Redemption Price, from and after any date fixed for
redemption, dividends on the shares of the Preferred Stock so called for
redemption shall cease to accrue, such shares of Preferred Stock shall no longer
be deemed to be outstanding and shall not have the status of shares of Preferred
Stock, and all rights of the holders thereof as stockholders of the Company
(except the right to receive from the company the Redemption Price without
interest) shall cease with respect to such shares. If at any time the Company
shall have irrevocably deposited in trust with a trustee for the pro rata
benefit of the holders of the shares of the Preferred Stock money or direct
non-callable
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<PAGE> 40
obligations of the United States maturing as to principal and interest in such
amounts and at such times as are sufficient to pay all future dividends on and
the Redemption Price of the Preferred Stock at the scheduled dividend payment
dates and scheduled redemption thereof, then, from and after the date on which
such provision has been made, such Preferred Stock shall no longer be deemed to
be outstanding except for purposes of accruals of quarterly dividends and shall
not have the status of shares of Preferred Stock, and all rights of the holders
thereof as stockholders of the Company (except the right to receive from the
Company quarterly dividends and the Redemption Price without interest) shall
cease with respect to such shares. From and after any date fixed for redemption,
shares of the Preferred Stock, redeemed by the Company shall be restored to the
status of authorized but unissued shares of preferred stock, without designation
as to series until such shares are once more designated as part of a particular
series by the Board of Directors of the Company.
8. RANKING. The Preferred Stock shall, with respect to
dividend payments and rights upon liquidation, winding up and dissolution of the
company, rank junior to the company's $10.00 Cumulative Exchangeable Redeemable
Preferred Stock, the Company's $4.80 Dividend Cumulative Preferred Stock and all
other classes of capital stock of the company hereafter designated and which by
their terms rank senior to the Preferred Stock with respect to either dividend
rights or rights on liquidation, winding up or dissolution (collectively, the
"Senior Securities"). The Preferred Stock shall rank senior to the Company's
$3.50 Cumulative Exchangeable Redeemable Preferred Stock, the Company's common
stock, $.10 par value (the "Common Stock"), and to any other securities of the
Company that are not Senior Securities (such Common Stock and other junior
securities being collectively referred to herein as the "Junior Securities").
There are no restrictions or limitations on the ability of the Company to
authorize, designate or issue additional classes or shares of Senior Securities.
9. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
holders of the Preferred Stock shall be entitled to be paid out of the assets of
the Company available for distribution to its stockholders, whether from
capital, surplus or earnings, an amount in cash equal to $100.00 per share (the
"Liquidation Preference"), plus any accrued and unpaid dividends to the date
fixed for liquidation, dissolution or winding up, whether or not declared,
before any distribution is made on any Junior securities, including the Common
Stock. If upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the assets of the Company available for distribution to
holders of the Preferred Stock shall be insufficient to pay the holders of
outstanding Preferred Stock the full amounts to which they shall be entitled
under this Section 9, the holders of the Preferred Stock shall share equally and
ratably in any distribution of assets of the Company in proportion to the full
Liquidation Preference to which each is entitled. After payment of the full
amount of Liquidation Preference to which they are entitled plus all accrued and
unpaid dividends, whether or not declared, the holders of the Preferred Stock
shall not be entitled to any further participation in any distribution of assets
of the Company. However, neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities, or other consideration) of all
or substantially all of the property or assets of the Company, nor the
consolidation or merger of the Company with any other corporation, shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Company. If the terms of any other preferred stock of the Company require
the Company to redeem such preferred stock
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<PAGE> 41
upon the sale of all or substantially all of the assets of the Company, then the
Preferred Stock shall be required to be redeemed on the same terms and
conditions and in accordance with the terms of Sections 3, 4, 5 and 6.
Liquidating distributions may not be made with respect to any Junior Securities
without provision having been made for the payment in full of the aggregate
Liquidation Preference of then outstanding shares of the Preferred Stock and all
accrued and unpaid dividends, whether or not declared.
10. VOTING RIGHTS. Except as otherwise provided by law, the
entire voting power for the election of directors and for all other purposes
shall be vested exclusively in the holders of the outstanding Common Stock;
provided, however, that the holders of the Preferred Stock, voting as a class,
shall have the right to elect one (1) additional director to the Board of
Directors of the Company if and when (i) the Company shall have failed to
declare and pay an aggregate of six (6) consecutive quarterly dividends or (ii)
the Company shall have failed to redeem shares of Preferred Stock that are
subject to scheduled redemption as provided in Section 3. Such director shall be
entitled to serve on the Board of Directors until all accumulated and unpaid
dividends have been paid on the Preferred Stock or the shares of the Preferred
Stock required to be redeemed shall have been redeemed (either of such periods
hereinafter called the "Class Voting Period"). The Board of Directors of the
Company shall take all actions necessary to effect the election of one (1)
director by the holders of the Preferred Stock under this Section 10, including
without limitation, taking such actions is may be necessary to expand the number
of directors comprising the Board and calling a special meeting of the holders
of the Preferred Stock for the purpose of electing such persons. Upon the
expiration of any Class Voting Period, the term of office of any director
elected by the holders of the Preferred Stock shall terminate and the number of
directors constituting the Board of Directors of the Company shall, without
further action, be reduced by one (1).
Any director who shall have been elected by holders of the
Preferred stock may be removed at any time during a Class Voting Period, either
with or- without cause, only by the affirmative vote of the holders of record of
a majority of the outstanding shares of the Preferred Stock and any vacancy
thereby created may be filled during such Class Voting Period only by the
holders of the Preferred Stock.
In connection with any matter on which holders of the
Preferred Stock are entitled to vote including, without limitation, the election
of a director as set forth in this Section 10 or any matter on which the holders
of the Preferred Stock are entitled to vote as a class or otherwise pursuant to
the General Corporation Law of the State of Delaware or the provisions of the
Certificate of Incorporation of the Company, each holder of the Preferred Stock
shall be entitled to one vote for each share of Preferred Stock held by such
holder.
11. CERTAIN RESTRICTIONS. The Company shall not pay dividends
or make distributions on or repurchase any of its Junior Securities, other than
dividends payable in Junior Securities, if any dividend payment, whether or not
declared, on or with respect to any shares of the Preferred Stock shall not have
been paid in full or provision for payment in full shall not have been made at
or prior to the regular quarterly Dividend Payment Date therefor; provided,
however, that redemptions or repurchases of Junior securities from any director,
member of management or employee of the Company, its parent, or any of its
subsidiaries (collectively, the
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<PAGE> 42
"Management Stockholders") in connection with any termination of employment of
any such Management Stockholder shall be permitted without regard to the
foregoing limitation so long as the net aggregate cash payments for or in
respect of such redemptions or repurchases of Junior Securities shall not exceed
$5,000,000 in any calendar year; provided further, however, that the net amount
available for such redemptions or repurchases at any time shall be increased to
the extent that less than the full amounts available in preceding years were
expended in such years, but in any event shall be subject to maximum aggregate
cash payments of $10,000,000 in any calendar year. The maximum amounts specified
in the immediately preceding sentence shall be increased by an amount equal to
(i) the net proceeds from the issuance of any Junior Securities (x) to
Management Stockholders after April 29, 1988, or (y) to any persons if the
proceeds of such offering are designated by the Board of Directors as being for
the purpose of redeeming or repurchasing Junior Securities, less (ii) any prior
redemptions or repurchases of Junior Securities by the Company from the
Management Stockholders.
12. EXCHANGE PROVISIONS. On any Dividend Payment Date, the
Company, at its sole option, may require the exchange of all or any part of the
shires of the Preferred Stock then outstanding for the Company's 12% Junior
subordinated Exchange Debentures (the "Exchange Debentures") on not less than
thirty (30) nor more than sixty (60) days' notice so long as no default shall
have occurred and be continuing in respect of any indebtedness of the Company
with an aggregate unpaid principal amount in excess of $5,000,000. Holders of
record of outstanding shares of the Preferred Stock as they appear on the stock
register of the Company at the close of business on the record date for such
exchange shall be entitled to receive Exchange Debentures having a principal
amount equal to the Liquidation Preference plus any accrued and unpaid
dividends, whether or not declared, to the date of such exchange in exchange for
each share of Preferred Stock held by them. At the time of such exchange (the
"Exchange Date"), the rights of the holders of the Preferred Stock then
outstanding as stockholders of the Company shall cease (except for the right to
receive the Exchange Debentures) and the persons entitled to receive the
Exchange Debentures issuable upon exchange shall be treated for all purposes as
the holders of record of such Exchange Debentures. In the event such exchange
would result in the issuance of any Exchange Debenture in a principal a-mount
which is less than $1,000 or which is not an integral multiple of $1,000, each
holder of Preferred Stock otherwise entitled to the Exchange Debentures shall be
entitled to receive a cash payment in lieu thereof equal to (i) such holder's
proportionate interest in the net proceeds from the sale on the open market of
the aggregate amount of such Exchange Debentures or (ii) if no open market sale
can be effected, an amount to be determined by the Board of Directors of the
Company based upon such holder's proportionate interest in such Exchange
Debentures. The person or persons entitled to receive the Exchange Debentures
issuable upon exchange shall be treated for all purposes as the registered
holder or holders of such Exchange Debentures as of the Exchange Date. The
Exchange Debentures will be issued under an Indenture between the Company, as
successor to Interstate Bakeries Corporation, and Commercial National Bank of
Kansas City, as trustee (the "Indenture"), substantially in the form filed as an
Exhibit to the Registration Statement of Interstate Bakeries Corporation on Form
S-1 as filed with the Securities and Exchange Commission (File No. 33-20914).
The Exchange Debentures shall have the terms and benefits provided in the
Indenture.
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<PAGE> 43
13. SELECTION OF PREFERRED STOCK TO BE EXCHANGED. If less than
all of the outstanding shares of the Preferred Stock are to be exchanged
pursuant to Section 12, the Board of Directors of the Company shall select the
shares of the Preferred Stock, as nearly as practicable, to the nearest whole
share, to be exchanged from the outstanding shares by lot or pro rata as
determined by the Board of Directors of the Company, in their sole discretion;
provided, however, that the Board of Directors of the Company may in selecting
shares to be exchanged choose to exchange all shares of the Preferred Stock held
by holders of a number of such shares not to exceed one hundred (100).
14. NOTICE OF EXCHANGE. At least thirty (30) days but not more
than sixty (60) days prior to the Exchange Date, written notice of such exchange
shall be mailed to each holder of record of shares of the Preferred Stock to be
exchanged at the address shown on the stock transfer books of the Company. Each
such notice shall specify (i) the number of shares of the Preferred Stock to be
received in the exchange from each holder, (ii) the principal amount of Exchange
Debentures to be issued in exchange for such shares, (iii) the Exchange Date,
(iv) the place or places at which the shares of the Preferred Stock shall be
exchanged for Exchange Debentures, and (v) that dividends on the shares to be
exchanged shall cease to accrue on the Exchange Date.
15. STATUS OF SHARES OF PREFERRED STOCK UPON EXCHANGE. Upon
surrender of the certificates for any of the Preferred Stock so exchanged, such
shares of Preferred Stock shall be exchanged by the Company at the required
exchange rate. In case fewer than all the shares of Preferred Stock by any such
certificate are exchanged, a new certificate or certificates shall be issued
representing the unexchanged shares of Preferred Stock without cost to the
holder thereof. From and after any date fixed for exchange, dividends on the
shares of the Preferred Stock so called for exchange shall cease to accrue, such
shares of Preferred Stock shall no longer be deemed to be outstanding and shall
not have the status of shares of Preferred Stock, and all rights of the holders
thereof as stockholders of the Company (except the right to receive from the
Company the Exchange Debentures upon exchange) or the right to receive cash
payments in lieu thereof shall cease with respect to such shares. From and after
any date fixed for exchange, shares of Preferred Stock exchanged for the
Exchange Debentures shall be restored to the status of authorized but unissued
shares of preferred stock, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors of the Company.
16. The effective date of the Designation of this corporation
is to be June 2, 1990.
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<PAGE> 44
IN WITNESS WHEREOF, said Interstate Brands Corporation has
caused this Certificate to be signed and attested this 1st day of June, 1990.
INTERSTATE BRANDS CORPORATION
By: /s/ Charles A. Sullivan
------------------------------
Charles A. Sullivan, President
ATTEST:
/s/ Ray Sandy Sutton
------------------------------
Ray Sandy Sutton, Secretary
-8-
<PAGE> 45
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
INTERSTATE BRANDS CORPORATION
Interstate Brands Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of Interstate Brands
Corporation (the "Corporation") adopted a resolution pursuant to Section 141(i)
of the General Corporation Law of the State of Delaware setting forth a proposed
amendment to the Restated Certificate of Incorporation filed May 16, 1979, and
amended May 31, 1990, through Exhibit A to a Certificate of Merger filed May 31,
1990, of the Corporation. The resolution setting forth the proposed amendment is
as follows:
RESOLVED, that the Restated Certificate of Incorporation be
amended by changing the Article thereof numbered IV so that,
as amended, said Article shall be and read as follows:
"The total number of shares of all classes of stock
which the Corporation shall have authority to issue is Seven
Thousand Twenty-Six (7,026) shares; consisting of:
(a) Six Thousand Twenty-Six (6,026) shares of $4.80
Dividend Cumulative Preferred Stock, without par value
(hereinafter referred to as "$4.80 Preferred Stock"); and,
(b) One Thousand (1,000) shares of Common Stock, par
value $.10 per share (hereinafter referred to as "Common
Stock").
A. $4.80 PREFERRED STOCK:
1. Holders of the $4.80 Preferred Stock shall be
entitled to receive, when and as declared from the net profits or from
the net assets in excess of capital legally available therefor,
cumulative dividends at the rate of $4.80 per share per annum, and no
more, payable quarterly, before any dividends shall be declared or paid
upon or set apart for the Common Stock, and such dividends shall be
cumulative from April 1, 1947. Whenever the cumulative dividends on the
$4.80 Preferred Stock for all previous dividend periods and for the
current dividend period shall have been declared and paid, or a sum
sufficient for the payment thereof set apart, the Board of Directors
may declare dividends on the Common Stock out of any remaining net
profits or out of any remaining assets in excess of capital to the
extent permitted by the Delaware Corporation Law.
<PAGE> 46
2. The $4.80 Preferred Stock may be redeemed at any
time as a whole or from time to time in part at the option of the Board
of Directors upon notice duly given as hereinafter provided, by paying
therefor in cash a sum equivalent to $105 per share, together with the
amount of any and all accrued dividends thereon. Notice of every such
redemption of $4.80 Preferred Stock shall be mailed at least thirty
(30) days prior to the date therein fixed for such redemption,
addressed to the holders of record of the shares to be redeemed at
their respective addresses as the same shall appear upon the stock
record books of the corporation. If at any time less than the whole of
the $4.80 Preferred Stock at the time outstanding shall be called for
redemption, the shares so to be redeemed shall be determined by lot or
in such other manner as may be approved by the Board of Directors and
as may be permitted by the rules of any stock exchange upon which the
shares of $4.80 Preferred Stock may at the time be listed. Subject to
the limitations and provisions herein contained, the Board of Directors
shall have full power and authority to prescribe the manner in which
and the terms and conditions upon which the $4.80 Preferred Stock shall
be redeemed from time to time. If such notice of redemption shall have
been duly given and if, on or before the redemption date specified
therein, the funds necessary for such redemption shall have been set
aside by the corporation separate and apart from its other funds in
trust for the pro rata benefit of the holders of the shares so called
for redemption, then, notwithstanding that any certificate for shares
of $4.80 Preferred Stock so called for redemption shall not have been
surrendered for cancellation, the shares represented thereby shall no
longer be deemed outstanding and the right to receive dividends thereon
shall cease to accrue from and after the date of redemption, and all
rights with respect to such shares shall forthwith on such redemption
date cease and terminate, except only the right of holders thereof to
receive the redemption price therefor, but without interest. All shares
of $4.80 Preferred Stock redeemed, purchased, retired or surrendered to
the corporation, or otherwise acquired in any manner by the
corporation, whether upon exchange or otherwise, shall be cancelled and
shall not be reissued; and at any time, and from time to time, upon the
reacquisition by the corporation of any shares of $4.80 Preferred
Stock, by whatever means, and upon the filing and recording of the
necessary certificate referred to in Section 244(c) of the Delaware
Corporation Law, or other applicable requirements, if any, of the laws
of the State of Delaware, or if no certificate is then so required, the
authorized Capital Stock of the corporation will be reduced and the
Certificate of Incorporation accordingly amended without further action
by the stockholders.
3. In the event of any liquidation, dissolution or
winding up of the affairs of the corporation, either voluntary or
involuntary, the holders of the $4.80 Preferred Stock shall be entitled
to receive $100 per share, together with a sum equal to any and all
accrued dividends thereon before any distribution or payment shall be
made to the holders of any stock rating junior to the $4.80 Preferred
Stock. Upon the payment in full to the holders of the $4.80 Preferred
Stock of the preferential amounts aforesaid and to the holders of any
series of Preferred Stock the preferential amount thereof, all of the
remaining assets and funds of the corporation shall be distributed
among the holders of the Common Stock. A statutory merger or
consolidation of the corporation into or with another corporation or
corporations, or the transfer by the corporation of substantially all
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<PAGE> 47
of its assets to another corporation in consideration of securities or
stock in such other corporation shall not be deemed to be a
liquidation, dissolution or winding up of the affairs of the
corporation within the meaning of this paragraph.
4. The holders of the $4.80 Preferred Stock as such
shall not be entitled to vote at any stockholders' meeting; provided,
however, that in the event of default in the payment of dividends upon
the $4.80 Preferred Stock and such default shall continue so that at
any time such dividends shall be in arrears to the extent of four or
more quarterly dividend payments, then the holders of the $4.80
Preferred Stock shall have the same voting rights as the holders of the
Common Stock, namely, one vote for each share of stock. If, at any time
after the holders of the $4.80 Preferred Stock have become entitled to
vote as aforesaid, all accrued dividends on such $4.80 Preferred Stock
shall have been paid, or if all of such $4.80 Preferred Stock shall
have been redeemed or called for redemption, and the redemption price
thereof paid or set apart, then the voting power of the holders of such
$4.80 Preferred Stock shall cease.
B. COMMON STOCK
1. The authorized but unissued shares of Common Stock
as well as any shares of Common Stock held as treasury shares may be
issued from time to time, at such time or times, in such amounts and
manner, for such consideration, whether in cash or property or
otherwise, and to such persons as may be fixed and determined by the
Board of Directors of the corporation.
2. After the requirements with respect to
preferential dividends on the $4.80 Preferred Stock shall have been met
and after the corporation shall have complied with all the
requirements, if any, with respect to the setting aside of sums as
sinking funds or redemption or purchase accounts (fixed in accordance
with the provisions of Paragraph A of this Article IV), and subject
further to any other conditions which may be fixed in accordance with
the provisions of Paragraph A of this Article IV, then and not
otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of
Directors.
3. After distribution in full of the preferential
amount to be distributed to the holders of the $4.80 Preferred Stock in
the event of voluntary or involuntary liquidation, distribution or sale
of assets, dissolution or winding-up of the corporation, the holders of
Common Stock shall be entitled to receive all the remaining assets of
the corporation, tangible and intangible, of whatever kind available
for distribution to the holders of Common Stock ratably in proportion
to the number of shares of Common Stock held by them respectively,
4. Except as may otherwise be required by law, each
holder of Common Stock shall have one vote in respect of each share of
Common Stock held by him on all matters upon which he is entitled to
vote.
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<PAGE> 48
C. OTHER PROVISIONS
1. No holder of any of the shares of any class or
series of stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other securities of the
corporation shall have any preemptive right to purchase or subscribe
for any unissued stock of any class or series or any additional shares
of any class or series to be issued by reason of any increase of the
authorized capital stock of the corporation, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares of any class
or series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution or resolutions of the Board of
Directors to such persons, firms, corporations or associations, and
upon such terms as may be deemed advisable by the Board of Directors,
in its sole discretion.
2. The authorized amount of shares of Common Stock
and $4.80 Preferred Stock may be increased or decreased, without a
class or series vote, from time to time by the affirmative vote of the
holders of a majority of the stock of the corporation entitled to vote
thereon."
SECOND: That thereafter, the stockholders of the Corporation
adopted a resolution by written consent pursuant to Section 228(a) of the
General Corporation Law of the State of Delaware approving the proposed
amendment to the Restated Certificate of Incorporation of said corporation as
stated above in its entirety.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by Charles A. Sullivan, its President, and Ray Sandy
Sutton, its Secretary, this 6th day of March, 1992.
INTERSTATE BRANDS CORPORATION
By: /s/ Charles A. Sullivan
-------------------------
President
ATTEST:
/s/ Ray Sandy Sutton
-------------------------
Secretary
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<PAGE> 49
CERTIFICATE OF OWNERSHIP
AND
MERGER
OF
CONTINENTAL BAKING COMPANY
INTO
INTERSTATE BRANDS CORPORATION
PURSUANT TO SECTION 253 OF THE GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE
Pursuant to Section 253 of the General Corporation Law of the
State of Delaware (the "DGCL"), INTERSTATE BRANDS CORPORATION, a Delaware
corporation ("Brands"), one of the constituent corporations to and the surviving
corporation in a merger (the "Merger") with CONTINENTAL BAKING COMPANY, a
Delaware corporation ("CBC"), has executed this Certificate of Ownership and
Merger in accordance with Section 103 of the DGCL.
Brands hereby certifies as follows:
1. Brands is incorporated pursuant to the DGCL.
2. CBC is incorporated pursuant to the DGCL.
3. Brands owns all of the issued and outstanding shares of
capital stock of CBC.
4. Section 253 of the DGCL permits the merger of a
wholly-owned subsidiary with and into its parent corporation, without the
approval of the stockholders of either the parent or subsidiary corporation.
5. The Agreement of Merger, dated as of July 24, 1995 (the
"Merger Agreement"), between Brands and CBC has been approved, adopted,
certified, executed and acknowledged by Brands and CBC pursuant to the following
resolutions of the Board of Directors of Brands, duly adopted on July 21, 1995:
RESOLVED, that the Board of Directors of Brands (i) has
reviewed the form and terms of the Certificate of Merger and (ii) hereby
determines that the effectuation of the Merger is in the best interests of
Brands and its stockholder, Interstate Bakeries Corporation.
<PAGE> 50
FURTHER RESOLVED, that the appropriate officers of Brands are
hereby authorized and directed, in the name and on behalf of Brands to (i)
execute, deliver and cause to be filed with the appropriate governmental
authorities a Certificate of Ownership and Merger, with such modifications or
amendments thereto such officers, in their sole discretion, may deem necessary
or appropriate, and (ii) take any and all actions necessary to implement and
effectuate the Merger Agreement.
6. The surviving corporation, which will assume all of CBC's
liabilities and obligations, is INTERSTATE BRANDS CORPORATION.
IN WITNESS WHEREOF, Brands has caused its corporate seal to be
affixed and this Certificate to be signed by Charles A. Sullivan, its Chief
Executive Officer, and Ray Sandy Sutton, its Secretary, this 24th day of July,
1995.
INTERSTATE BRANDS CORPORATION
By: /s/ Charles A. Sullivan
-------------------------
Charles A. Sullivan
Chief Executive Officer
ATTEST:
/s/ Ray Sandy Sutton
-------------------------
Ray Sandy Sutton
Secretary
[SEAL]
-2-
<PAGE> 51
CERTIFICATE OF OWNERSHIP
AND
MERGER
OF
INTERSTATE BRANDS COMPANY - LICENSING CO.
INTO
INTERSTATE BRANDS CORPORATION
PURSUANT TO SECTION 253 OF THE GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE
Pursuant to Section 253 of the General Corporation Law of the
State of Delaware (the "DGCL"), INTERSTATE BRANDS CORPORATION, a Delaware
corporation ("Brands"), one of the constituent corporations to and the surviving
corporation in a merger (the "Merger") with INTERSTATE BRANDS COMPANY -
LICENSING CO., a Delaware corporation ("IBC-LC"), has executed this Certificate
of Ownership and Merger in accordance with Section 103 of the DGCL.
Brands hereby certifies as follows:
1. Brands is incorporated pursuant to the DGCL.
2. IBC-LC is incorporated pursuant to the DGCL.
3. Brands owns all of the issued and outstanding shares of
capital stock of IBC-LC.
4. Section 253 of the DGCL permits the merger of a
wholly-owned subsidiary with and into its parent corporation, without the
approval of the stockholders of either the parent or subsidiary corporation
5. The Agreement of Merger dated as of December 18, 1996 (the
"Merger Agreement"), between Brands and IBC-LC has been approved, adopted
certified, executed and acknowledged by Brands and IBC-LC pursuant to the
following resolutions of the Board of Directors of Brands, duly adopted on
December 18, 1996:
RESOLVED, that the Board of Directors of Brands (i) has
reviewed the form and terms of the Merger Agreement and Certificate of Merger
and (ii) hereby determines that the effectuation of the Merger is in the best
interests of Brands and its stockholder, Intestate Bakeries Corporation.
FURTHER RESOLVED, that the appropriate officers of Brands are
hereby authorized and directed, in the name and on behalf of Brands to (i)
execute, deliver and cause to be filed with the appropriate governmental
authorities a Certificate of Ownership and Merger, with such modifications or
amendments thereto such officers, in their sole discretion, may deem
<PAGE> 52
necessary or appropriate, and (ii) take any and all actions necessary to
implement and effectuate the Merger Agreement.
6. The surviving corporation, which will assume all of
IBC-LC's liabilities and obligations, is INTERSTATE BRANDS CORPORATION.
IN WITNESS WHEREOF, Brands has caused its corporate seal to be
affixed and this Certificate to be signed by Charles A. Sullivan, its Chairman
of the Board and Chief Executive Officer, and Ray Sandy Sutton, its Secretary,
this 18th day of December, 1996.
INTERSTATE BRANDS CORPORATION
By: /s/ Charles A. Sullivan
-----------------------------------
Name: Charles A. Sullivan
Title: Chairman of the Board and Chief
Executive Officer
ATTEST:
/s/ Ray Sandy Sutton
----------------------------------
Name: Ray Sandy Sutton
Title: Secretary
[SEAL]
-2-
<PAGE> 53
CERTIFICATE OF OWNERSHIP
AND
MERGER
OF
DRAKE BAKERIES, INC.
INTO
INTERSTATE BRANDS CORPORATION
PURSUANT TO SECTION 253 OF THE GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE
Pursuant to Section 253 of the General Corporation Law of the
State of Delaware (the DGCL"), INTERSTATE BRANDS CORPORATION, a Delaware
corporation ("Brands"), one of the constituent corporations to and the surviving
corporation in a merger (the "Merger") with DRAKE BAKERIES, INC., a Delaware
corporation ("Drake"), has executed this Certificate of Ownership and Merger in
accordance with Section 103 of the DGCL.
Brands hereby certifies as follows:
1. Brands is incorporated pursuant to the DGCL.
2. Drake is incorporated pursuant to the DGCL.
3. Brands owns all of the issued and outstanding shares of
capital stock of Drake.
4. Section 253 of the DGCL permits the merger of a
wholly-owned subsidiary with and into its parent corporation, without the
approval of the stockholders of either the parent or subsidiary corporation.
5. The Agreement of Merger, dated as of August 14, 1998 (the
"Merger Agreement"), between Brands and Drake has been approved, adopted,
certified, executed and acknowledged by Brands and Drake pursuant to the
following resolutions of the Board of Directors of Brands, duly adopted on July
13, 1998:
RESOLVED, that the Board of Directors of Brands (i) has
reviewed the form and terms of the Merger Agreement and Certificate of Merger
and (ii) hereby determines that the effectuation of the Merger is in the best
interests of Brands and its stockholder, Interstate Bakeries Corporation.
FURTHER RESOLVED, that the appropriate officers of Brands are
hereby authorized and directed in the name and on behalf of Brands to (i)
execute, deliver and cause to be filed with the appropriate governmental
authorities a Certificate of Ownership and Merger with such modifications or
amendments thereto such officers, in their sole discretion may deem necessary or
appropriate, and (ii) take any and all actions necessary to implement and
effectuate the Merger Agreement.
<PAGE> 54
6. The surviving corporation, which will assume all of Drake's
liabilities and obligations, is INTERSTATE BRANDS CORPORATION.
7. The Merger shall be effective as of 12:02 a.m. Eastern
time, Sunday, August 16, 1998.
IN WITNESS WHEREOF, Brands has caused its corporate seal to be
affixed and this Certificate to be signed by Ray Sandy Sutton, its Corporate
Secretary, this 14th day of August, 1998.
INTERSTATE BRANDS CORPORATION
By: /s/ Ray Sandy Sutton
--------------------------
Name: Ray Sandy Sutton
Title: Secretary
[SEAL]
-2-
