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EXHIBIT 3.1
Restated Articles Of Incorporation
of
Peet's Coffee and Tea, Inc.
Pursuant to RCW 23B.10.070, the following constitute the Restated Articles
of Incorporation of the undersigned, a Washington corporation. These Restated
Articles of Incorporation shall become effective immediately upon filing with
the Secretary of State of the State of Washington.
ARTICLE 1. NAME
The name of this corporation is Peet's Companies, Inc.
ARTICLE 2. DURATION
The period of this corporation's duration shall be perpetual.
ARTICLE 3. PURPOSES AND POWERS
This corporation is organized to engage in any business, trade or activity
which may lawfully be conducted by a corporation organized under the Washington
Business Corporation Act.
This corporation shall have the authority to engage in any and all such
activities as are incidental or conducive to the attainment of the foregoing
purpose or purposes of this corporation and to exercise any and all powers
authorized or permitted under any laws that may be now or hereafter applicable
or available to this corporation.
ARTICLE 4. SHARES
4.1 Authorized Capital
The total number of shares which this corporation is authorized to issue is
60,000,000, consisting of 50,000,000 shares of Common Stock without par value
and 10,000,000 shares of Preferred Stock without par value. The Common Stock is
subject to the rights and preferences of the Preferred Stock as hereinafter set
forth.
4.2 Issuance of Preferred Stock in Series
The Preferred Stock may be issued from time to time in one or more series
in any manner permitted by law and the provisions of these Restated Articles of
Incorporation, as determined from time to time by the Board of Directors and
stated in the resolution or resolutions providing for the issuance thereof,
prior to the issuance of any shares thereof. The Board of Directors shall have
the authority to fix and determine and to amend, subject to the provisions
hereof, the designation, preferences, limitations and relative rights of the
shares of any series that is wholly unissued or is to be established. Unless
otherwise specifically provided in the resolution establishing any series, the
Board of Directors shall further have the authority, after the issuance
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of shares of a series whose number it has designated, to amend the resolution
establishing such series to decrease the number of shares of that series, but
not below the number of shares of such series then outstanding. In the event
that there are no issued or outstanding shares of a series of Preferred Stock
which this corporation has been authorized to issue, unless otherwise
specifically provided in the resolution establishing such series, the Board of
Directors, without any further action on the part of the holders of the
outstanding shares of any class or series of stock of this corporation, may
amend these Restated Articles of Incorporation to delete all reference to such
series.
4.3 Dividends
The holders of shares of Preferred Stock shall be entitled to receive
dividends, out of the funds of this corporation legally available therefor, at
the rate and at the time or times, whether cumulative or noncumulative, as may
be provided by the Board of Directors in designating a particular series of
Preferred Stock. If such dividends on the Preferred Stock shall be cumulative,
then if dividends shall not have been paid, the deficiency shall be fully paid
or the dividends declared and set apart for payment at such rate, but without
interest on cumulative dividends, before any dividends on the Common Stock shall
be paid or declared and set apart for payment. The holders of Preferred Stock
shall not be entitled to receive any dividends thereon other than the dividends
referred to in this section.
4.4 Redemption
The Preferred Stock may be redeemable at such price, in such amount, and at
such time or times as may be provided by the Board of Directors in designating a
particular series of Preferred Stock. In any event, such Preferred Stock may be
repurchased by this corporation to the extent legally permissible.
4.5 Liquidation
In the event of any liquidation, dissolution or winding up of the affairs
of this corporation, whether voluntary or involuntary, then, before any
distribution shall be made to the holders of Common Stock, the holders of
Preferred Stock at the time outstanding shall be entitled to be paid the
preferential amount or amounts per share as may be provided by the Board of
Directors in designating a particular series of Preferred Stock and dividends
accrued thereon to the date of such payment. The holders of Preferred Stock
shall not be entitled to receive any distributive amounts upon the liquidation,
dissolution or winding up of the affairs of this corporation other than the
distributive amounts referred to in this section, unless otherwise provided by
the Board of Directors in designating a particular series of Preferred Stock.
4.6 Conversion
Shares of Preferred Stock may be convertible into Common Stock of this
corporation upon such terms and conditions, at such rate and subject to such
adjustments as may be provided by the Board of Directors in designating a
particular series of Preferred Stock.
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4.7 Voting Rights
Holders of Preferred Stock shall have such voting rights as may be provided
by the Board of Directors in designating a particular series of Preferred Stock.
ARTICLE 5. PREEMPTIVE RIGHTS
No preemptive rights shall exist with respect to shares of stock or
securities convertible into shares of stock of this corporation.
ARTICLE 6. CUMULATIVE VOTING
The right to cumulate votes in the election of Directors shall not exist
with respect to shares of stock of this corporation.
ARTICLE 7. BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal the
Bylaws of this corporation subject to approval by a majority of the Continuing
Directors (as defined in Article 13 hereof); provided, however, that the Board
of Directors may not repeal or amend any bylaw that the shareholders have
expressly provided may not be amended or repealed by the Board of Directors. The
shareholders shall also have the power to adopt, amend or repeal the Bylaws of
this corporation by the affirmative vote of the holders of not less than two-
thirds of the outstanding shares entitled to vote thereon and, to the extent, if
any, provided by resolution adopted by the Board of Directors authorizing the
issuance of a class or series of Common Stock or Preferred Stock, by the
affirmative vote of the holders of not less than two-thirds of the outstanding
shares of such class or series, voting as a separate voting group.
ARTICLE 8. REGISTERED OFFICE AND AGENT
The name of the current registered agent of this corporation and the
address of its current registered office are as follows:
Lawco of Washington, Inc.
1201 Third Avenue, 40th Floor
Seattle, WA 98101-3099
ARTICLE 9. DIRECTORS
9.1 Number
The number of Directors of this corporation shall be determined in the
manner provided by the Bylaws and may be increased or decreased from time to
time in the manner provided therein.
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9.2 Staggered Terms
Each Director shall serve for a term of one (1) year; provided, however,
that at the first election of Directors following the approval by the
shareholders of this corporation of these Restated Articles of Incorporation,
the Board of Directors shall be divided into three classes, with said classes to
be as equal in number as may be possible. Any Director or Directors in excess of
the number divisible by three shall be assigned to Class 1 or to Class 1 and
Class 2, as the case may be. At the first election of Directors to such
classified Board of Directors, each Class 1 Director shall be elected to serve
until the next ensuing annual meeting of shareholders, each Class 2 Director
shall be elected to serve until the second ensuing annual meeting of
shareholders and each Class 3 Director shall be elected to serve until the third
ensuing annual meeting of shareholders. For so long as the authorized number of
Directors, as determined in the manner provided in the Bylaws, exceeds two, at
each annual meeting of shareholders following the meeting at which the Board of
Directors is initially classified, the number of Directors equal to the number
of Directors in the class whose term expires at the time of such meeting shall
be elected to serve until the third ensuing annual meeting of shareholders.
Notwithstanding any of the foregoing provisions of this Article 9, Directors
shall serve until their successors are elected and qualified or until their
earlier death, resignation or removal from office, or until there is a decrease
in the number of Directors; provided, however, that no decrease in the number of
Directors shall have the effect of shortening the term of any incumbent
Director.
9.3 Removal
Until the closing of a Public Offering, as defined below, the Directors of
this corporation may be removed with or without cause. After the closing of a
Public Offering, the Directors of this corporation may be removed only for
cause, in the manner provided by the Bylaws, by the affirmative vote of the
holders of not less than two-thirds of the shares entitled to elect the Director
or Directors whose removal is being sought. The vacancy created by the removal
of any Director under this Article 9 shall be filled only by the affirmative
vote of the holders of at least two-thirds of the shares entitled to elect the
Director who was removed.
For purposes of this Article 9.3, a "Public Offering" means a primary,
public offering of equity securities by this corporation pursuant to a
registration statement filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended.
ARTICLE 10. AMENDMENTS TO RESTATED ARTICLES OF
INCORPORATION
This corporation reserves, and the rights of the shareholders of this
corporation are granted subject to, the right to amend or repeal any of the
provisions contained in these Restated Articles of Incorporation as follows:
10.1 Supermajority Voting
Except as provided in Section 10.2 or Section 10.3 of this Article 10, the
following Articles and Sections may be amended or repealed only upon the
affirmative vote of the holders of at least two-thirds of the outstanding shares
and, to the extent, if any, provided by resolution adopted by the Board of
Directors authorizing the issuance of a class or series of Common Stock
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or Preferred Stock, by the affirmative vote of the holders of at least two-
thirds of the outstanding shares of such class or series, voting as a separate
voting group:
Section 4.1 ("Shares - Authorized Capital"),
Article 5 ("Preemptive Rights"),
Article 6 ("Cumulative Voting"),
Article 7 ("Bylaws"),
Article 9 ("Directors"),
Article 10 ("Amendments to Restated Articles of Incorporation"),
Article 11 ("Limitation of Director Liability"),
Article 12 ("Special Meetings of Shareholders"), and
Article 13 ("Special Voting Requirements").
10.2 Majority Voting
Notwithstanding the provisions of Section 10.1 of this Article 10, and
except as provided in Section 10.3 of this Article 10, an amendment or repeal of
a Section or Article identified in Section 10.1 that is approved by a majority
of the Continuing Directors (as defined in Section 13.1 hereof), voting
separately and as a subclass of Directors, shall require the affirmative vote of
the holders of at least a majority of the outstanding shares entitled to vote
thereon and, to the extent, if any, provided by resolution adopted by the Board
of Directors authorizing the issuance of a class or series of Common Stock or
Preferred Stock, by the affirmative vote of the holders of at least a majority
of the outstanding shares of such class or series, voting as a separate voting
group.
10.3 No Shareholder Vote
Notwithstanding the provisions of Sections 10.1 or 10.2 hereof, if the
amendment or repeal of any Section or Article not identified in Section 10.1
hereof shall have been approved by a majority of the Continuing Directors,
voting separately and as a subclass of Directors, and if such amendment or
repeal is not otherwise required to be approved by this corporation's
shareholders pursuant to the provisions of the Washington Business Corporation
Act or of these Restated Articles of Incorporation other than this Article 10,
then no vote of the shareholders of this corporation shall be required for
approval of such amendment or repeal.
ARTICLE 11. LIMITATION OF DIRECTOR LIABILITY
To the full extent that the Washington Business Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of Directors, a Director of this corporation shall
not be liable to this corporation or its shareholders
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for monetary damages for conduct as a Director. Any amendments to or repeal of
this Article 11 shall not adversely affect any right or protection of a Director
of this corporation for or with respect to any acts or omissions of such
Director occurring prior to such amendment or repeal.
ARTICLE 12. SPECIAL MEETINGS OF SHAREHOLDERS
The Chairman of the Board of Directors, the President or the Board of
Directors may call special meetings of the shareholders for any purpose.
Further, a special meeting of the shareholders shall be held if the holders of
not less than 25% of all the votes entitled to be cast on any issue proposed to
be considered at such special meeting have dated, signed and delivered to the
Secretary of this corporation one or more written demands for such meeting,
describing the purpose or purposes for which it is to be held; provided,
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however, that upon qualification of the corporation as a "public company" under
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RCW Title 23B, the percentage of votes required to call a special meeting shall
be 30%.
ARTICLE 13. SPECIAL VOTING REQUIREMENTS
In addition to any affirmative vote required by law, by these Restated
Articles of Incorporation or otherwise, any "Business Combination" (as
hereinafter defined) involving this corporation shall be subject to approval in
the manner set forth in this Article 13.
13.1 Definitions
For the purposes of this Article 13:
(a) "Business Combination" means (i) a merger, share exchange or
consolidation of this corporation or any of its Subsidiaries with any
other corporation; (ii) the sale, lease, exchange, mortgage, pledge,
transfer or other disposition or encumbrance, whether in one
transaction or a series of transactions, by this corporation or any of
its Subsidiaries of all or a substantial part of this corporation's
assets otherwise than in the usual and regular course of business; or
(iii) any agreement, contract or other arrangement providing for any
of the foregoing transactions.
(b) "Continuing Director" means any member of the Board of Directors who
was a member of the Board of Directors on the date these Restated
Articles of Incorporation are first filed with the Secretary of State
of the State of Washington or who is subsequently elected to the Board
of Directors after such date upon the recommendation of a majority of
the persons who are Continuing Directors at the time of such
recommendation, voting separately and as a subclass of Directors on
such recommendation.
(c) "Subsidiary" means a domestic or foreign corporation, a majority of
the outstanding voting shares of which are owned, directly or
indirectly, by this corporation.
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13.2 Vote Required for Business Combinations
13.2.1 Supermajority Vote
Except as provided in subsection 13.2.2 or 13.2.3 hereof, the
affirmative vote of the holders of not less than two-thirds of the outstanding
shares and, to the extent, if any, provided by resolution adopted by the Board
of Directors authorizing the issuance of a class or series of Common Stock or
Preferred Stock, the affirmative vote of the holders of not less than two-thirds
of the outstanding shares of such class or series, voting as a separate voting
group, shall be required for the adoption or authorization of a Business
Combination.
13.2.2 Majority Vote
Notwithstanding subsection 13.2.1 hereof, if a Business Combination
shall have been approved by a majority of the Continuing Directors, voting
separately and as a subclass of Directors, and if such Business Combination is
required to be approved by this corporation's shareholders pursuant to the
provisions of the Washington Business Corporation Act or of these Restated
Articles of Incorporation other than this Article 13, then such Business
Combination shall be approved upon receiving the affirmative vote of the holders
of not less than a majority of the outstanding shares entitled to vote thereon
and, to the extent, if any, provided by resolution adopted by the Board of
Directors authorizing the issuance of a class or series of Common Stock or
Preferred Stock, the affirmative vote of the holders of not less than a majority
of the outstanding shares of such class or series, voting as a separate voting
group.
13.2.3 No Shareholder Vote
Notwithstanding the provisions of subsections 13.2.1 or 13.2.2 hereof,
if a Business Combination shall have been approved by a majority of the
Continuing Directors, voting separately and as a subclass of Directors, and if
such Business Combination is not otherwise required to be approved by this
corporation's shareholders pursuant to the provisions of the Washington Business
Corporation Act or of these Restated Articles of Incorporation other than this
Article 13, then no vote of the shareholders of this corporation shall be
required for approval of such Business Combination.
1. These Restated Articles of Incorporation contain amendments to the
Restated Articles of Incorporation, as heretofore amended. The date of the
adoption of the amendments by the shareholders of the corporation is August 29,
1994.
2. The amendments were duly approved by the shareholders of the
corporation in accordance with the provisions of RCW 23B. 10.030 and RCW 23B.
10.040.
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These Restated Articles of Incorporation are executed by said corporation
by its duly authorized officer.
DATED: September 9, 1994
PEET'S COFFEE AND TEA, INC.
By /s/ Gerald Baldwin
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Gerald Baldwin, President
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