<PAGE>
Exhibit 3.1
VOTING AGREEMENT
THIS IS A VOTING AGREEMENT, dated as of November 15, 2000, and amended
as of January 9, 2001 (the "Agreement"), by and among Manhattan Acquisition
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Corp., a Delaware corporation (the "Company"), and the entities and individuals
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set forth on the signature pages hereto (the "Stockholders").
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Background
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A. The Stockholders as a group beneficially own 1,029,822 shares of
Common Stock, par value $.001 per share (the "Baker Common Stock") of Il Fornaio
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(America) Corporation, a Delaware corporation ("Baker"), and 1,000,722 options
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to purchase shares of Baker Common Stock.
B. The Company has entered into the Agreement and Plan of Merger,
dated as of the date hereof (as it may hereafter be amended, the "Merger
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Agreement"), with Baker, whereby the Company will be merged (the "Merger") with
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and into Baker. Baker will be the surviving corporation in such Merger.
C. Pursuant to the Securities Purchase and Contribution Agreement,
dated as of the date hereof (as it may hereafter be amended, the "Securities
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Purchase Agreement"), by and among the Company, Bruckmann, Rosser, Sherrill &
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Co. II, L.P., a Delaware limited partnership ("BRS"), and certain of the
---
Stockholders, certain of the Stockholders have agreed to purchase securities of
the Company and to deliver as purchase price shares of Baker Common Stock or
cancellation of options to purchase shares of Baker Common Stock.
D. In consideration of the mutual undertakings of the parties
hereinafter set forth and in order to induce the Company to enter into the
Merger Agreement and the Securities Purchase Agreement, the Stockholders wish to
agree to certain restrictions regarding their voting rights, and to grant a
proxy to the Company, with respect to the shares of capital stock of Baker owned
by them, subject to the terms and conditions hereinafter set forth.
Terms
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In consideration of the mutual representations, warranties and
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING OF CERTAIN SHARES AND
OTHER COVENANTS OF THE STOCKHOLDERS
-----------------------------------
1.1. Voting of Shares. From the date hereof until the termination
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of this Agreement pursuant to Section 3.3 hereof (the "Term"), at any meeting of
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the stockholders of Baker, however called, and in any action by consent of such
stockholders, each Stockholder will
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vote (or give consent in respect of) the shares of Baker Common Stock
beneficially owned by such Stockholder (i) in favor of the Merger and adoption
of the Merger Agreement (as amended from time to time), (ii) against any
Acquisition Proposal (as defined in the Merger Agreement) and against any
proposal for action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Baker under
the Merger Agreement or which is reasonably likely to result in any of the
conditions of Baker's or the Company's obligations under the Merger Agreement
not being fulfilled, any change in the directors of Baker, any change in the
present capitalization of Baker or any amendment to Baker's certificate of
incorporation or bylaws, any other material change in Baker's corporate
structure or business, or any other action which could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which
is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing, including the ability for the Company or
its nominees to vote such Baker Common Stock directly. Each Stockholder will use
his, her or its best efforts to cast such Stockholder's vote or give such
Stockholder's consent in accordance with the procedures communicated to the
Stockholder by Baker relating thereto so that the vote or consent shall be duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of the vote or consent taken. As used herein, the term
"beneficially own" shall have the meaning set forth in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended.
1.2. No Inconsistent Arrangements. Except as contemplated by this
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Agreement, each Stockholder will not during the Term (i) transfer (which term
shall include any sale, assignment, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the shares of Baker
Common Stock, or options to purchase such shares, that are beneficially owned by
such Stockholder, or any interest therein, or create or, permit to exist any
Lien on such securities, (ii) enter into any contract, option or other agreement
or understanding with respect to any transfer of any or all such securities, or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such securities, (iv) deposit such
securities into a voting trust or enter into a voting agreement or arrangement
with respect to such securities, or (v) take any other action that would in any
way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement.
1.3. Proxy. Each Stockholder hereby revokes any and all prior
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proxies or powers of attorney in respect of any shares of Baker Common Stock
beneficially owned by such Stockholder and constitutes and appoints the Company,
or any nominee thereof, with full power of substitution and re-substitution, at
any time during the Term, as its true and lawful attorney and proxy (its
"Proxy"), for and in its name, place and stead, to demand that the Secretary of
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Baker call a special meeting of the stockholders of Baker for the purpose of
considering any matter referred to in Section 1.1 and to vote each share of
Baker Common Stock beneficially owned by such Stockholder as its Proxy with
regard to any matter referred to in Section 1.1, at
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every annual, special, adjourned or postponed meeting of the stockholders of
Baker, including the right to sign its name (as stockholder) to any consent,
certificate or other document relating to Baker, that the Delaware General
Corporation Law may permit or require as provided in Section 1.1.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
1.4. Waiver of Appraisal Rights. Each Stockholder hereby waives
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any rights of appraisal or rights to dissent from the Merger.
1.5. Stop Transfer. Each Stockholder will not request that Baker
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or the Company (or their respective registrars or transfer agents) register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of shares of Baker Common Stock beneficially owned by such
Stockholder, unless such transfer is made in compliance with this Agreement.
1.6. No Solicitation. During the Term, each Stockholder will not,
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nor shall it permit or authorize any of its officers, directors, employees,
agents or representatives (collectively, the "Representatives") to, (i) solicit
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or initiate, or encourage, directly or indirectly, any inquiries regarding the
submission of, any Acquisition Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information or date with
respect to, or take any other action to knowingly facilitate the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal or (iii) enter into any agreement with respect to any
Acquisition Proposal or approve or agree or resolve to approve any Acquisition
Proposal. Upon execution of this Agreement, each Stockholder will, and it will
cause its Representatives to, immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing. Each Stockholder will promptly (and in any event,
within 24 hours) advise the Company orally and in writing of any request for
information or the submission or receipt of any Acquisition Proposal, or any
inquiry with respect to or which could lead to any Acquisition Proposal, the
material terms and conditions of such request, Acquisition Proposal or inquiry
and the identity of the person making any such request, Acquisition Proposal or
inquiry and such Stockholder's response or responses thereto. This Section 1.6
relates only to action taken or omitted by any Stockholder in his, her or its
capacity as such, and does not restrict or require action taken or omitted by
such Stockholder or any person affiliated with such Stockholder in his or her
capacity, if any, as an officer or director of Baker so long as any such action
of such Stockholder or any person affiliated with such Stockholder in his or her
capacity as an officer or director of Baker is not in breach of the terms and
provisions of the Merger Agreement.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF EACH STOCKHOLDER
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2.1. Representations, Warranties and Covenants of Each Stockholder.
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Each of the Stockholders severally represents and warrants to, and covenants and
agrees with, the Company as to itself that:
(a) Such Stockholder has full legal right, power and
authority (including the due authorization by all necessary corporate, limited
liability company or partnership action in the case of Stockholders who are
corporations, limited liability companies or partnerships) to enter into this
Agreement and to perform such Stockholder's obligations hereunder without the
need for the consent of any other person or entity; and this Agreement has been
duly authorized, executed and delivered by such Stockholder.
(b) To the knowledge of the Stockholders, the execution,
delivery and performance of this Agreement by each Stockholder does not
contravene or violate any laws, rules or regulations applicable to it.
(c) Each Stockholder represents that it is and will at
Closing be the sole record (except as otherwise noted on Schedule I) and
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beneficial owner of, with Control (as defined below) over, the shares of Baker
Common Stock and/or options to purchase Baker Common Stock set forth beside his,
her or its name on Schedule I, free and clear of any pledge, lien, security
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interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind ("Lien"), other than restrictions imposed by the securities laws or
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Liens arising under this Agreement, the Merger Agreement and the Securities
Purchase Agreement (and, in the case of such options, the terms of the option
agreement and plan document relating thereto). Such Stockholder does not
beneficially own any equity securities of Baker other than the securities set
forth on Schedule I. For purposes of this Agreement, "Control" shall mean the
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right, power and authority to vote and to sell shares of Baker Common Stock
and/or options to purchase Baker Common Stock without the need for the consent
of any other person or entity.
ARTICLE III
MISCELLANEOUS
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3.1. Definitions. Capitalized terms used but not otherwise defined
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in this Agreement have the meanings assigned to such terms in the Merger
Agreement.
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3.2. Amendment and Modification.
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(a) Any of the provisions of this Agreement may be amended or
modified pursuant to a writing executed by the Company and each of the parties
hereto.
(b) Any party hereto may (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(iii) waive compliance by the other parties hereto with any of their agreements
or conditions contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only as against such party and only
if set forth in an instrument in writing signed by such party.
(c) The failure of any party hereto to exercise any right,
power, or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, any custom or practice of the parties at
variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
3.3. Termination. This Agreement will terminate and be of no
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further force and effect (i) by the written mutual consent of the parties
hereto, (ii) automatically and without any required action of the parties hereto
immediately following the Effective Time (as defined in the Merger Agreement),
(iii) upon termination of the Merger Agreement in accordance with its terms
(provided, however, that if such termination is effected under Section 7.1(d) as
a result of the failure of the stockholders of Baker to approve the Merger
Agreement, termination of this Agreement will alternatively occur on the date
that is 90 days after such termination of the Merger Agreement) or (iv) unless
otherwise determined by BRS, on May 31, 2001. No such termination of this
Agreement shall relieve any party hereto from any liability for any breach of
this Agreement prior to termination.
3.4. Survival of Representations and Warranties. The
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representations and warranties set forth in Article II will survive the
execution and delivery of this Agreement, the Closing Date and the consummation
of the transactions contemplated hereby, regardless of any investigation made by
a Stockholder or on its behalf. No other representations, warranties or
covenants set forth herein shall so survive.
3.5. Assignment; Successors and Assigns; Entire Agreement. This
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Agreement may not be assigned by any party by operation of law or otherwise
without the prior written consent of the Company. This Agreement constitutes
the entire agreement and supersedes any and all other prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof, and this Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
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3.6. Severability. In the event that any provision of this
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Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be affected except to the extent necessary
to delete such illegal, invalid or unenforceable provision unless that provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
3.7. Notices. All notices provided for or permitted hereunder
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shall be made in writing by hand-delivery, registered or certified first-class
mail, telex, fax or air courier guaranteeing overnight delivery to the other
party at the following addresses (or at such other address as shall be given in
writing by any party to the others):
If to the Company:
c/o Bruckmann, Rosser, Sherrill & Co., L.P.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Harold O. Rosser, II
Fax: 212-521-3799
with a copy to:
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Carmen J. Romano, Esq.
David S. Denious, Esq.
Fax: 215-994-2222
If to any Stockholder to its address as listed on the signature pages
hereof.
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if faxed; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
3.8. Governing Law. Except to the extent the provisions of the
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Delaware General Corporation Law apply mandatorily hereto, the validity,
performance, construction and effect of this Agreement shall be governed by and
construed in accordance with the substantive laws of the State of New York,
regardless of the laws that might otherwise govern under principles of conflicts
of law applicable thereto.
3.9. Headings. The headings in this Agreement are for convenience
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of reference only and shall not constitute a part of this Agreement, nor shall
they affect its meaning,
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construction or effect. Unless otherwise specified, section references herein
refer to sections of this Agreement and schedules and exhibits refer to
schedules and exhibits attached hereto.
3.10. Counterparts. This Agreement may be executed in two or more
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same instrument.
3.11. Further Assurances. Each party shall cooperate and take such
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action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
3.12. Remedies. In the event of a breach or a threatened breach by
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any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of such provision will be inadequate compensation
for any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived. Accordingly, if the Company should
institute an action or proceeding seeking specific enforcement of the provisions
hereof, each Stockholder hereby waives the claim or defense that the Company, as
the case may be, has an adequate remedy at law and hereby agrees not to assert
in any such action or proceeding the claim or defense that such a remedy at law
exists. Each Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
3.13. Pronouns. Whenever the context may require, any pronouns
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used herein shall be deemed also to include the corresponding neuter, masculine
or feminine forms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MANHATTAN ACQUISITION CORP.
By: /s/ Harold O. Rosser
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Name: Harold O. Rosser
Title: President
"STOCKHOLDERS"
/s/ Laurence B. Mindel
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Laurence B. Mindel
Address: Il Fornaio
770 Tamalpais Drive, #400
Corte Madera, CA 94925
/s/ Michael J. Hislop
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Michael J. Hislop
Address: Il Fornaio
770 Tamalpais Drive, #400
Corte Madera, CA 94925
/s/ Michael J. Beatrice
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Michael J. Beatrice
Address: 36 Mahogany Drive
San Rafael, CA 94903
/s/ Peter P. Hausback
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Peter P. Hausback
Address: Il Fornaio
770 Tamalpais Drive, #400
Corte Madera, CA 94925
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/s/ F. Warren Hellman
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F. Warren Hellman
Address: Hellman & Friedman L.L.C.
One Maritime Plaza, 12th Floor
San Francisco, CA 94111
/s/ Dean A. Cortopassi
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Dean A. Cortopassi
Address: San Tomo Group
11280 N. Alpine Rd.
Stockton, CA 95212
/s/ Joan A. Cortopassi
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Joan A. Cortopassi
Address: San Tomo Group
11280 N. Alpine Rd.
Stockton, CA 95212
/s/ Donald G. Lenz
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Donald G. Lenz
Address: San Tomo Group
11280 N. Alpine Rd.
Stockton, CA 95212
/s/ W. Scott Hedrick
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W. Scott Hedrick
Address: InterWest Partners
3000 Sand Hill Road
Bldg. Three, Ste. 255
Menlo Park, CA 94025
/s/ Carlo Veggetti
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Carlo Veggetti
Address: c/o Mrs. Flavia Alberti
C.S. P.B.
Casella Postale 2836
CH-6900 Lugano
Suisse
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Mindel Family Trust
By: /s/ Laurence B. Mindel
-----------------------------------
Name: Laurence B. Mindel
Title: Trustee
Address: Il Fornaio
770 Tamalpais Drive, #400
Corte Madera, CA 94925
Attn: Laurence B. Mindel
Trust created for the benefit of Laurence B.
Mindel and his family
By: /s/ Laurence B. Mindel
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Name: Laurence B. Mindel
Title: Trustee
Address: Il Fornaio
770 Tamalpais Drive, #400
Corte Madera, CA 94925
Attn: Laurence B. Mindel
The Mindel Living Trust
By: /s/ Laurence B. Mindel
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Name: Laurence B. Mindel
Title: Trustee
Address: Il Fornaio
770 Tamalpais Drive, #400
Corte Madera, CA 94925
Attn: Laurence B. Mindel
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FWH Associates
By: /s/ F. Warren Hellman ,
--------------------------------
its general partner
Name: F. Warren Hellman
Title: Trustee
Address: Hellman & Friedman L.L.C.
One Maritime Plaza, 12th Floor
San Francisco, CA 94111
Attn: F. Warren Hellman
Marco H. Hellman Trust "B"
By: /s/ F. Warren Hellman
--------------------------------
Name: F. Warren Hellman
Title: Trustee
Address: Hellman & Friedman L.L.C.
One Maritime Plaza, 12th Floor
San Francisco, CA 94111
Attn: F. Warren Hellman
Stanislaus Food Products Company
By: /s/ Dean A. Cortopassi
--------------------------------
Name: Dean A. Cortopassi
Title: Trustee
Address: San Tomo Group
11292 N. Alpine Rd.
Stockton, CA 95212
Attn: Dean A. Cortopassi
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Capecchio Foundation
By: /s/ Dean A. Cortopassi
--------------------------------
Name: Dean A. Cortopassi
Title: Trustee
Address: San Tomo Group
11292 N. Alpine Rd.
Stockton, CA 95212
Attn: Dean A. Cortopassi
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Schedule I
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Securities Owned
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<TABLE>
<CAPTION>
Number of Shares of Baker
Shares of Baker Common Common Stock Purchasable
Name of Stockholder Stock Beneficially Owned/*/ under Options Beneficially Owned/*/*/
-------------------------------- ------------------------------ ----------------------------------------
<S> <C> <C>
Laurence B. Mindel(1) 679,536 112,496
Mindel Family Trust(1) 7,195 0
Trust created for the benefit 9,157 0
of Laurence B. Mindel and his
family(1)
The Mindel Living Trust(1) 663,184 0
Michael J. Hislop 0 684,056
Michael J. Beatrice 0 130,610
Peter P. Hausback 0 43,560
F. Warren Hellman(2) 137,854 10,500
FWH Associates(2) 125,802 0
Marco H. Hellman Trust "B"(2) 2,052 0
Dean A. Cortopassi(3) 117,794 12,000
Joan A. Cortopassi(3) 60,000 0
Donald G. Lenz(3) 60,000 0
Stanislaus Food Products 57,794 0
Company(3)
Capecchio Foundation(3) 60,000 0
W. Scott Hedrick 14,879 7,500
Carlo Veggetti(4) 79,759 0
</TABLE>
(1) Includes 7,195 shares held of record by the Mindel Family Trust, 9,157
shares held of record by a Trust created for the benefit of Laurence B.
Mindel and his family, and 663,184 shares held by The Mindel Living Trust.
Mr. Mindel represents and warrants that he is a trustee of these three
trusts.
(2) Includes 125,802 shares held of record by FWH Associates, a California
limited partnership. Mr. Hellman represents and warrants that he is a
general partner of FWH Associates. Also includes 2,052 shares held of
record by Marco H. Hellman Trust "B".
________________________
/*/ Exclusive of shares purchasable under options set forth in the adjacent
column.
/*/*/ Exclusive of any vesting limitations.
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(3) Includes 57,794 shares held of record by Stanislaus Food Products Company,
a California corporation. Mr. Cortopassi represents and warrants that he is
Chief Executive Officer and a controlling stockholder of Stanislaus Food
Products Company. Includes 60,000 shares held of record by the Capecchio
Foundation, a California not-for-profit corporation, the Board of Directors of
which is comprised of Mr. Cortopassi, Mrs. Cortopassi and Mr. Lenz.
(4) Mr. Veggetti's shares are held in "street" name.
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