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EXHIBIT 4.1
RESTATED IN ELECTRONIC FORMAT
FOR SEC PURPOSES ONLY
AMENDED AND RESTATED CHARTER
OF
PERFORMANCE FOOD GROUP COMPANY
The undersigned corporation under the Tennessee Business Corporation
Act, adopts the following restated charter:
1. The name of the corporation is Performance Food Group Company.
2. The corporation is for profit.
3. The street address of the corporation's principal office is:
25 Century Boulevard, Suite 509
Nashville, Tennessee 37214
County of Davidson
4. (a) The name of the corporation's registered agent is Roger L. Boeve.
(b) The street address of the corporation's registered office in
Tennessee is:
25 Century Boulevard, Suite 509
Nashville, Tennessee 37214
County of Davidson
5. The Corporation is authorized to issue two classes of stock in the
following number of shares: (i) 50,000,000 shares of common stock, $.01 par
value per share (the "Common Stock"), and (ii) 5,000,000 shares of $.01 par
value preferred stock (the "Preferred Stock").
The preferences, limitations and relative rights of the above two
classes of stock shall be as follows:
A. Preferred Stock.
(1) Shares of Preferred Stock may be issued in one or more series
at such time or times and for such consideration as the Board of
Directors may determine. Each such series shall be given a
distinguishing designation. All shares of any one series shall have
preferences, limitations and relative rights identical with those of
other shares of the same series and, except to the extent otherwise
provided in the description of such series, with those of other shares
of Preferred Stock.
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(2) Authority is hereby expressly granted to the Board of
Directors to fix from time to time, by resolution or resolutions
providing for the establishment and/or issuance of any series of
Preferred Stock, the designation of such series and preferences,
limitations and relative rights of the shares of such series, including
the following:
(a) The distinctive designation and number of shares
comprising such series, which number may (except where otherwise
provided by the Board of Directors in creating such series) be
increased or decreased (but not below the number of shares then
outstanding) from time to time by action of the Board of
Directors;
(b) The voting rights, if any, which shares of that
series shall have, which may be special, conditional, limited or
otherwise;
(c) The rate of dividends, if any, on the shares of that
series, whether dividends shall be no-cumulative, cumulative to
the extent earned, partially cumulative or cumulative (and, if
cumulative, from which date or dates), whether dividends shall be
payable in cash, property rights, or in shares of the
corporation's capital stock, and the relative rights of priority,
if any, of payment of dividends on shares of that series over
shares of any other series or over the Common Stock;
(d) Whether the shares of that series shall be redeemable
and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be
redeemable, the event or events upon or after which they shall be
redeemable, whether they shall be redeemable at the option of the
corporation, the shareholder or another person, the amount per
share payable in case of redemption (which amount may vary under
different conditions and at different redemption dates), whether
such amount shall be designated amount or an amount determined in
accordance with a designated formula or by reference to extrinsic
data or events and whether such amount shall be paid in cash,
indebtedness, securities or other property rights, including
securities of any other corporation;
(e) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the
terms of and amount payable into such sinking fund;
(f) The rights to which the holders of the shares shall
be entitled in the event of voluntary or involuntary dissolution
of liquidation of the corporation, and the relative rights of
priority, if any, of payment of shares of that series over shares
of any other series or over the Common Stock in any such event;
(g) Whether the shares of that series shall be
convertible into or exchangeable for cash, shares of stock, of
any other class or any other series,
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indebtedness, or other property or rights, including securities
of another corporation, and if so, the terms and conditions of
such conversion or exchange, including the rate or rates of
conversion or exchange, and whether such rate shall be a
designated amount or an amount determined in accordance with a
designated formula or by reference to extrinsic data or events,
the date or dates upon or after which they shall be convertible
or exchangeable, the duration for which they shall be convertible
or exchangeable, the event or events upon or after which they
shall be convertible or exchangeable, and whether they shall be
convertible or exchangeable at the option of the corporation, the
shareholder or another person, and the method (if any) of
adjusting the rate of conversion or exchange in the event of a
stock split, stock dividend, combination or shares of similar
event;
(h) Whether the issuance of any additional shares of such
series, or of any shares of any other series, shall be subject to
restrictions as to issuance, or as to the powers, preferences or
rights of any such other series; and
(i) Any other preferences, privileges and powers and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions of such series, as
the Board of Directors may deem advisable and as shall not be
inconsistent with the provisions of this Article 5 and to the
full extent not or hereafter permitted by the laws of the State
of Tennessee.
Before issuing any shares of a series of Preferred Stock, the
corporation shall deliver to the Secretary of State for filing Articles of
Amendment, which shall be effective without shareholder action, that set forth
(a) the name of the corporation, (b) the text of the amendment determining the
terms of the series, (c) the date it was adopted and (d) a statement that the
amendment was duly adopted by the Board of Directors.
A.1. Series A Preferred Stock. Pursuant to the authority vested in the
Board of Directors in accordance with the provisions of this Paragraph 5.A. of
the Restated Charter, the Board of Directors does hereby create, authorize and
provide for the issuance of Series A Junior Preferred Stock out of the class of
5,000,000 shares of preferred stock, $.01 par value (the "Preferred Stock"),
having the voting powers, designation, relative, participating, optional and
other special rights, preferences, and qualifications, limitations and
restrictions thereof that are set forth as follows:
(1) Series A Preferred Stock.
(a) Designation and Amount. There shall be a series of
Preferred Stock to be known and designated as Series A Preferred
Stock (the "Series A Preferred Stock") and the number of shares
constituting such series shall be 1,000,000.
(b) Dividends. Subject to the prior and superior rights
of the holders of any shares of any other series of Preferred
Stock or any other shares of Preferred
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Stock of the Corporation ranking prior and superior to the shares
of Series A Preferred Stock with respect to dividends, each
holder of one-hundredth (1/100) of a share (a "Unit") of Series A
Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for that purpose, such dividends as may be declared from time to
time by the Board of Directors in its discretion, in the same
kind and in an amount per Unit equal to the aggregate per share
amount of all dividends (whether payable in cash or stock or
other securities or property) declared, if any, on shares of
Common Stock of the Corporation. In the event the Corporation
shall at any time after the date of issuance of the Series A
Preferred Stock (i) increase by way of a stock split or similar
transaction the number of outstanding shares of Common Stock
(except by way of a stock dividend received by holders of Units
and shares of Common Stock in accordance with this Section 1(b)),
(ii) subdivide the outstanding shares of Common Stock or (iii)
combine the outstanding shares of Common Stock into a smaller
number of shares, then in each such case the amount per Unit of
any dividend payable in accordance with the preceding sentence of
this Section 1(b) shall be adjusted proportionately so that the
holders of each Unit shall receive an amount per Unit equal to
the amount that would be received per share of Common Stock
outstanding prior to such stock split or similar transaction,
subdivision or combination of the shares (as if such stock split
or similar transaction, subdivision or combination had not
occurred).
(c) Voting Rights. The holders of Units of Series A
Preferred Stock shall have the following voting rights.
(i) Each Unit of Series A Preferred Stock shall
entitle the holder thereof to one vote on all matters
submitted to a vote of the shareholders of the
Corporation. In the event the Corporation shall at any
time after the date of issuance of the Series A Preferred
Stock (i) increase by way of a stock split or similar
transaction the number of outstanding shares of Common
Stock (except by way a stock dividend received by holders
of Units and shares of Common Stock in accordance with
Section 1(b) above), (ii) subdivide the outstanding
shares of Common Stock or (iii) combine the outstanding
shares of Common Stock into a smaller number of shares,
then in each such case the number of votes per Unit to
which holders of Units of Series A Preferred Stock were
entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the
numerator of which shall be the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to
such event.
(ii) Except as otherwise provided herein or
required by law, the holders of Units of Series A
Preferred Stock and the holders of shares of
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Common Stock shall vote together as one class on all
matters submitted to a vote of shareholders of the
Corporation.
(iii) Except as set forth herein or required by
law, holders of Units of Series A Preferred Stock shall
have no special voting rights and their consent shall not
be required (except to the extent they are entitled to
vote with holders of shares of Common Stock as set forth
herein or as otherwise required by law) for the taking of
any corporate action.
(d) Reacquired Shares. Any Units of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after
the acquisition thereof. All such Units shall, upon their
cancellation, become authorized but unissued Units of Preferred
Stock and may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance
set forth herein.
(e) Liquidation, Dissolution or Winding Up. In the event
of any voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Corporation and after payment or
provision for payment of the debts and other liabilities of the
Corporation, including the prior claims of the holders of any
other series of Preferred Stock, the holders of each Unit of
Series A Preferred Stock shall be entitled to share in any assets
remaining, ratably with the holders of each share of Common
Stock. In the event the Corporation shall at any time after the
date of issuance of the Series A Preferred Stock (i) increase by
way of a stock split or similar transaction the number of
outstanding shares of Common Stock (except by way of a stock
dividend received by holders of Units and shares of Common Stock
in accordance with Section 1(b)), (ii) subdivide the outstanding
shares of Common Stock or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, then in each such
case the amount per Unit of any distribution in accordance with
this Section 1(e) shall be adjusted proportionately so that the
holders of each Unit shall receive an amount per Unit equal to
the amount that would be received per share of Common Stock
outstanding prior to such stock split or similar transaction,
subdivision or combination of the shares (as if such stock split
or similar transactions, subdivision or combination had not
occurred).
(f) Share Exchange, Merger, Etc. In case the Corporation
shall enter into any share exchange, merger, combination or other
transaction in which the shares of Common Stock are exchanged for
or converted into other stock or securities, cash and/or any
other property, then in any such case Units of Series A Preferred
Stock shall at the same time be similarly exchanged for or
converted into an amount per Unit (subject to the provision for
adjustment hereinafter set forth) equal to the aggregate amount
of stock, securities, cash and/or any other property (payable in
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kind), as the case may be, into which or for which each share of
Common Stock is converted or exchanged. In the event the
Corporation shall at any time after the date of issuance of the
Series A Preferred Stock (i) increase by way of a stock split or
similar transaction the number of outstanding shares of Common
Stock (except by way of a stock dividend received by holders of
Units and shares of Common Stock in accordance with Section
1(b)), (ii) subdivide the outstanding shares of Common Stock or
(iii) combine the outstanding shares of Common Stock into a
smaller number of shares, then in each such case the amount set
forth in the immediately preceding sentence with respect to the
exchange or conversion of shares of Series A Preferred Stock
shall be adjusted proportionately so that the holders of each
Unit shall receive an amount per Unit equal to the amount that
would be received per share of Common Stock outstanding prior to
such stock split or similar transaction, subdivision or
combination of the shares (as if such stock split or similar
transactions, subdivision or combination had not occurred).
(g) Redemption. The Units of Series A Preferred Stock
shall not be redeemable at the option of the Corporation or any
holder thereof. Notwithstanding the foregoing sentence of this
Section, the Corporation may acquire Units of Series A Preferred
Stock in any other manner permitted by law and the Amended and
Restated Charter or by-laws of the Corporation.
(h) Conversion. The Series A Preferred Stock is not
convertible into shares of any other class or series of stock of
the Corporation.
(i) Ranking. The Units of Series A Preferred Stock shall
rank junior to all other series of the Preferred Stock and to any
other class of preferred stock that hereafter may be issued by
the Corporation as to the payment of dividends and the
distribution of assets, unless the terms of any such series or
class shall provide otherwise.
(j) Amendment. The Amended and Restated Charter,
including without limitation the provisions hereof, shall not
hereafter be amended, either directly or indirectly, or through
merger or share exchange with another corporation, in any manner
that would alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect the
holders thereof adversely without the affirmative vote of the
holders of a majority or more of the outstanding Units of Series
A Preferred Stock, voting separately as a class.
(k) Fractional Shares. The Series A Preferred Stock may
be issued in Units or other fractions of a share, which Units or
fractions shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Preferred Stock.
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B. Common Stock.
Each share shall be entitled to one vote. No holder of any Common Stock
of the corporation, now or hereafter authorized, shall have any right, as such
holder, to purchase, subscribe for or otherwise acquire any shares of stock of
the corporation, or any securities or obligations convertible into, or
exchangeable for, or any right, warrant or option to purchase, any shares of any
class which the corporation may at any time hereafter issue or sell, whether now
or hereafter authorized, but any and all such stock, securities, obligations,
rights, warrants or options may be issued and disposed of by the Board of
Directors to such persons, firms or corporations, and for such lawful
consideration and on such terms as the Board of Directors in its discretion may,
from time to time, determine, without first offering the same to the
shareholders of the corporation.
6. The shareholders of the corporation shall not have preemptive rights.
7. The Board of Directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as possible, of one-third of the total number for a three-year term, except at
the July 1993 special meeting of shareholders, Class I directors shall be
elected for a one-year term; Class II directors shall be elected for a two-year
term; and Class III directors shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class shall
coincide with the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office.
Any director may be removed from office but only for cause by the
affirmative vote of the holders of a majority of the voting power of the shares
entitled to vote for the election of directors, considered for this purpose as
one class.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by the corporation shall have the
right, voting separately by class or series, to elect directors at any annual or
special meeting of shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Charter applicable thereto, and such directors so elected shall
not be divided into class pursuant to this Article 7 unless expressly provided
by such terms. In the event of a vacancy among the directors so elected by the
holders of preferred stock, the remaining preferred directors may fill the
vacancy for the unexpired term.
Notwithstanding any other provisions of this Charter, the affirmative
vote of holders of two-third of the voting power of the shares entitled to vote
at an election of directors shall be required to amend alter, change or repeal,
or to adopt any provisions as part of this Charter or as part of the
Corporation's Bylaws inconsistent with the purpose and intent of, this
Article 7.
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8. To the fullest extent permitted by the Tennessee Business Corporation
Act as in effect on the date hereof and as hereafter amended from time to time,
a director of the corporation shall not be liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director. If
the Tennessee Business Corporation Act or any successor statute is amended after
adoption 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 Tennessee Business Corporation Act, as so amended from time to
time. Any repeal or modification of this Article 8 by the shareholders 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 or with
respect to events occurring prior to such time.
Dated:__________________ PERFORMANCE FOOD GROUP COMPANY
By:____________________________________
Title:_________________________
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