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RESTATED
CERTIFICATE OF INCORPORATION
OF
HORMEL FOODS CORPORATION
This Corporation was originally incorporated September 20, 1928, under
the name Geo. A. Hormel & Company.
This Certificate of Incorporation is restated as of January 28, 1997,
duly adopted in accordance with the provisions of Section 245 of the Delaware
Corporation Law. This restatement only restates and integrates and does not
further amend any provision of the Corporation's Certificate of Incorporation as
theretofore amended or supplemented, and there is no discrepancy between those
provisions and the provisions of this Restated Certificate.
FIRST: The name of this corporation is HORMEL FOODS CORPORATION.
SECOND: Its registered office in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware
19801. The name and address of its registered agent is the Corporation Trust
Company, 1209 Orange Street, Wilmington, Delaware 19801.
THIRD: The nature of the business, or objects or purposes to be
transacted, promoted or carried on are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons might or could do,
and in any part of the world, viz:
(a) To manufacture, buy and in any manner acquire and to prepare for
market and import, export, sell and deal in, both at wholesale and
retail and on its own account and on commission, all kinds of meats and
meat products and all kinds of food and food products, and in
connection therewith to carry on the business of slaughtering livestock
and poultry and to deal in and with all kinds of products and
by-products arising therefrom; to own and operate packing houses and
canning establishments and to market, sell and deal in and with all
articles produced or handled in connection therewith; to acquire by
purchase or lease and to sell, mortgage, own, manage and operate such
real estate and such personal property as may be necessary or
convenient in the conduct of its business; to manufacture ice and to
operate refrigeration plants, to own and operate refrigerator and other
cars, either as owner or lessee, and generally to do all those things
which are incidental to the aforesaid business.
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(b) To buy, or otherwise acquire, sell, lease, mortgage, own, manage, and
operate farms and plantations; to deal in the products thereof; and to
transact all business incidental or appurtenant thereto.
(c) To manufacture, purchase, or otherwise acquire, to hold, own, mortgage,
pledge, sell, assign, and transfer, or otherwise dispose of, to invest,
trade in, deal in and deal with goods, wares, and merchandise and
property of every class and description.
(d) To acquire, by purchase or otherwise, to own, hold, buy, sell, convey,
lease, mortgage or otherwise encumber real estate or other property,
personal or mixed.
(e) To acquire the good will, trademarks, rights and property, and to
undertake the whole or any part of the business or liabilities of any
person, firm, association or corporation; and to pay for the same in
cash, the stock of this corporation, bonds, debentures, promissory
notes, or otherwise; and to hold or in any manner to dispose of the
whole or any part of the property so purchased; to conduct in any
lawful manner the whole or any part of the business so acquired; and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(f) To apply for, obtain, register, lease, purchase, or otherwise to
acquire, and to hold, use, own, operate and introduce, and to sell,
assign, or otherwise dispose of, any trademarks, trade names, patents,
inventions, improvements and processes used in connection with or
secured under Letter Patent of the United States, or elsewhere, or
otherwise: and to use, exercise, develop, grant licenses in respect of,
or otherwise turn to account, any such trademarks, patents, licenses,
processes and the like or any such property or rights.
(g) To enter into, perform and carry out contract of every kind with any
person, firm, association or corporation, and to draw, make, accept,
endorse, discount, execute and issue promissory notes, bills of
exchange, warrants, bonds, debentures and other negotiable or
transferable instruments for any of the objects or purposes of the
corporation, and to secure the same by mortgage, pledge, deed of trust,
or otherwise.
(h) To hold, purchase or otherwise acquire, to sell, assign, transfer,
mortgage, pledge or otherwise dispose of, shares of the capital stock
and bonds, debentures or other evidences of indebtedness created by any
other corporation or corporations, and, while the holder thereof, to
exercise all the rights and privileges of ownership, including the
right to vote thereon.
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(i) To purchase, hold, sell and transfer shares of its own capital stock;
provided that the corporation shall not use its funds or property for
the purchase of its own shares of capital stock when such use would
cause any impairment of its capital, and that shares of its own capital
stock belonging to the corporation shall not be voted upon, directly or
indirectly.
(j) To negotiate policies of insurance, for its own benefit or for the
benefit of others, upon the life or lives of any one or more of its
officers or employees and to pay the premiums thereon; to cause or
permit itself to be made the beneficiary of existing policies of
insurance on the life or lives of any one or more of its officers or
employees and thereafter to pay the premiums thereon; to cause other
persons to be made the beneficiaries of existing policies of insurance
on the life or lives of any one or more of its officers or employees
and thereafter to pay the premiums thereon; and to pay the premiums on
existing policies of insurance, on the life or lives of any one or more
of its officers or employees, in which either this corporation or any
other person or persons is or are named as beneficiary or
beneficiaries.
(k) To do any and all things set forth herein as objects, purposes, powers
or otherwise, and to do all other things which corporations organized
under the laws of the State of Delaware may do, to the same extent and
as fully as natural persons might do, so far as may be permitted by
law; provided, however, that nothing herein contained shall be deemed
to authorize this corporation to construct, hold, maintain or operate
within the State of Delaware railroads, railways, telegraph or
telephone lines, or to carry on within said State any public utility
business.
(l) In general, to carry on any other business in connection with the
foregoing, and to have and to exercise all the powers conferred, now or
hereafter, by the laws of Delaware upon this corporation. The foregoing
clauses shall be construed both as objects and powers; and it is hereby
expressly provided that the foregoing enumeration of specific powers
shall not be held to limit or restrict in any manner the powers of this
corporation.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 680,000,000 shares, divided into
three classes consisting of 400,000,000 shares of Common Stock, par value $.0586
per share ("Common Stock"), 200,000,000 shares of Nonvoting Common Stock, par
value $.01 per share ("Nonvoting Common Stock") and 80,000,000 shares of
Preferred Stock, par value $.01 per share ("Preferred Stock").
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Section A. PREFERRED STOCK.
The Board of Directors is authorized at any time and from time to time,
subject to any limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in one or more series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and any qualifications, limitations or restrictions thereof. The number of
authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the Common Stock, without a vote of the holders of
the Preferred Stock, or of any series thereof, unless a vote of any such holders
is required pursuant to the certificate or certificates establishing the series
of Preferred Stock.
Section B. COMMON STOCK.
1. VOTING RIGHTS.
Each holder of record of Common Stock shall he entitled to one
(1) vote on all matters for each share of Common Stock owned of record by such
holder.
2. DIVIDENDS.
Subject to the rights of the holders of Preferred Stock and
any other class or series of stock having a preference as to dividends over the
Common Stock then outstanding, the holders of the 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, provided, however, that:
(a) No cash dividend or other distribution of assets, rights, evidence of
indebtedness or any other property shall be declared, paid or made to
the holders of Common Stock unless a cash dividend or other such
distribution in like kind and equal per-share amount is simultaneously
declared, paid or made to the holders of the Nonvoting Common Stock;
and that
(b) Stock dividends declared on the Common Stock shall be payable solely in
shares of Common Stock. No stock dividend shall be declared or paid on
the Common Stock unless a stock dividend payable in shares of Nonvoting
Common Stock, proportionate on a per-share basis to the dividend on the
Common Stock, is simultaneously declared and paid on the Nonvoting
Common Stock.
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3. LIQUIDATION.
In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock and any other class or series of
stock having a preference as to liquidating distributions over the Common Stock,
the holders of the Common Stock shall be entitled to share ratably on a
per-share basis with the holders of the Nonvoting Common Stock as a single class
in all of the remaining assets of the Corporation of whatever kind available for
distribution to stockholders. A consolidation or merger of the Corporation with
and into any other corporation or corporations shall not be deemed to be a
liquidation, dissolution, or winding-up of the Corporation as those terms are
used in this paragraph 3.
Section C. NONVOTING COMMON STOCK.
1. VOTING RIGHTS.
Except as otherwise required by law or provided in this
Certificate of Incorporation, the holders of shares of Nonvoting Common Stock
shall have no vote on any matter.
2. DIVIDENDS.
Subject to the rights of the holders of Preferred Stock and
any other class or series of stock having a preference as to dividends over the
Nonvoting Common Stock then outstanding, the holders of the Nonvoting 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,
provided, however, that:
(a) No cash dividend or other distribution of assets, rights, evidence of
indebtedness or any other property shall be declared, paid or made to
the holders of the Nonvoting Common Stock unless a cash dividend or
other such distribution in like kind and equal per-share amount is
simultaneously declared, paid or made to the holders of Common Stock;
and that
(b) Stock dividends declared on the Nonvoting Common Stock shall be payable
solely in shares of Nonvoting Common Stock. No stock dividend shall be
declared or paid on the Nonvoting Common Stock unless a stock dividend
payable in shares of Common Stock, proportionate on a per-share basis
to the dividend on the Nonvoting Common Stock, is simultaneously
declared and paid on the Common Stock.
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3. LIQUIDATION.
In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up of the Corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of the Preferred Stock and any other class or series of
stock having a preference as to liquidating distributions over the Nonvoting
Common Stock, the holders of the Nonvoting Common Stock shall be entitled to
share ratably on a per-share basis with the holders of the Common Stock as a
single class in all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders. A consolidation or merger of the
Corporation with and into any other corporation or corporations shall not be
deemed to be a liquidation, dissolution, or winding-up of the Corporation as
those terms are used in this paragraph 3.
FIFTH: The corporation is to have perpetual existence.
SIXTH: The private property of the stockholders of the corporation
shall not be subject to the payment of corporate debts of the corporation to any
extent whatever.
SEVENTH: 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 on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: In furtherance, and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
(a) To make, alter, amend and rescind the Bylaws of this corporation;
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(b) From time to time to determine whether and to what extent and at which
times and places and under what conditions and regulations, the
accounts and books of this corporation (other than the stock ledger) or
any of them, shall be open to inspection of stockholders; and no
stockholder shall have any right of inspecting any account, book, or
document of this corporation except as conferred by statute, unless
authorized by a resolution of stockholders or directors;
(c) To fix the amount to be reserved as working capital; to authorize and
cause to be executed mortgages and liens upon the real and personal
property and franchises of this corporation;
(d) By resolution or resolutions passed by a majority of the whole Board,
to designate one or more committees, each committee to consist of two
or more of the directors of the corporation, which, to the extent
provided in said resolution or resolutions, or in the Bylaws of the
corporation shall have and may exercise the powers of the Board of
Directors in the management of the business and the affairs of the
corporation, and may have power to authorize the seal of the
corporation to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be stated
in the Bylaws of the corporation or as may be determined from time to
time by resolution adopted by the Board of Directors.
Both stockholders and directors shall have the power, if the Bylaws so
provide, to hold their meetings either within or without the State of Delaware;
the corporation shall also have the power, if the Bylaws so provide, to have one
or more offices within or without the State of Delaware, in addition to the
principal office in Delaware, and to keep the books of this corporation (subject
to the provisions of the statute) outside of the State of Delaware at such
places as may from time to time be designated by the Board of Directors.
This corporation may in its Bylaws confer powers additional to the
foregoing upon the directors and may also confer upon them powers in addition to
the powers and authorities expressly conferred upon them by the statute.
NINTH: Except as otherwise expressly provided in this Article NINTH:
(i) any merger or consolidation of the corporation with or into
any other corporation;
(ii) any sale, lease, exchange or other disposition of all or
substantially all of the assets of the corporation to or with
any other corporation, person or other entity;
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(iii) the issuance or transfer of any securities of the corporation
to any other corporation, person or other entity in exchange
for assets or securities or a combination thereof (except
assets or securities or a combination thereof so acquired in a
single transaction or a series of related transactions having
an aggregate fair market value of less than $5,000,000); or
(iv) the issuance or transfer of any securities of the corporation
to any other corporation, person or other entity for cash,
shall require the affirmative vote of the holders of
(a) at least 75% of the outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors,
(considered for the purposes of this Article as one class), and
(b) at least a majority of the outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors
which are not beneficially owned, directly or indirectly, by such other
corporation, person or other entity,
if, as of the record date for the determination of stockholders entitled to
notice thereof and to vote thereon, such other corporation, person or other
entity is the beneficial owner, directly or indirectly, of 5% or more of the
outstanding shares of capital stock of the corporation entitled to vote
generally in the election of directors. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that some lesser
percentage may be specified by law or in any agreement with any national
securities exchange.
The provisions of this Article NINTH shall not apply to any transaction
described in clauses (i), (ii), (iii) or (iv) of the first paragraph of this
Article, (i) with another corporation if a majority, by vote, of the outstanding
shares of all classes of capital stock of such other corporation entitled to
vote generally in the election of directors, (considered for this purpose as one
class), is owned of record or beneficially by the corporation and/or its
subsidiaries; or (ii) with another corporation, person or other entity if the
Board of Directors of the corporation shall by resolution have approved a
memorandum of understanding with such other corporation, person or other entity
with respect to and substantially consistent with such transaction prior to the
time such other corporation, person or other entity became the beneficial owner,
directly or indirectly, of 5% or more of the outstanding shares of capital stock
of the corporation entitled to vote generally in the election of directors.
For the purposes of this Article NINTH, a corporation, person or other
entity shall be deemed to be the beneficial owner of any shares of capital stock
of the corporation (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, or (ii) which are beneficially owned,
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directly or indirectly (including shares deemed owned through application of
clause (i) of this paragraph above), by any other corporation, person or other
entity (a) with which it or its "affiliate" or "associate" (as referenced below)
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of capital stock of the corporation or (b) which is
its "affiliate" or "associate" as those terms were defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934 as in
effect on December 1, 1979. For the purposes of this Article NINTH, the
outstanding shares of capital stock of the corporation shall include shares
deemed owned through the application of clauses (i) and (ii) of this paragraph
but shall not include any other shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise.
The Board of Directors of the corporation shall have the power and duty
to determine for the purposes of this Article NINTH, on the basis of information
then known to it, whether (i) any corporation, person or other entity
beneficially owns, directly or indirectly, 5% or more of the outstanding shares
of capital stock of the corporation entitled to vote generally in the election
of directors, or is an "affiliate" or an "associate" (as referenced above) of
another, (ii) any proposed sale, lease, exchange or other disposition of part of
the assets of the corporation involves a substantial part of the assets of the
corporation, (iii) assets or securities, or a combination thereof, to be
acquired in exchange for securities of the corporation, have an aggregate fair
market value of less than $5,000,000 and whether the same are proposed to be
acquired in a single transaction or a series of related transactions, and (iv)
the memorandum of understanding referred to above is substantially consistent
with the transaction to which it relates. Any such determination by the Board
shall be conclusive and binding for all purposes of this Article NINTH.
Notwithstanding any other provision of this Certificate of
Incorporation or the Bylaws (and in addition to any other vote that may be
required by law, this Certificate of Incorporation or the Bylaws), there shall
be required to amend, alter, change, or repeal, directly or indirectly, this
Article NINTH the affirmative vote of (i) at least 75% of the outstanding shares
of capital stock of the corporation entitled to vote generally in the election
of directors and (ii) at least a majority of the outstanding shares of capital
stock of the corporation entitled to vote generally in the election of directors
exclusive of all voting stock of the corporation beneficially owned, directly or
indirectly by any corporation, person or entity which is, as of the record date
for the determination of stockholders entitled to notice of such amendment,
alteration, change or repeal, and to vote thereon, the beneficial owner,
directly or indirectly, of 5% or more of the outstanding shares of capital stock
of the corporation entitled to vote generally in the election of directors.
TENTH: Except as otherwise provided in the Certificate of Incorporation
or the Bylaws, the corporation reserves the right to amend, alter, change or
repeal any
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provision contained in this Agreement of Merger which constitutes the
Certificate of Incorporation, as amended, of the corporation in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ELEVENTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages or breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation law is amended
after approval by the stockholders of this provision to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation law, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
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