<PAGE>
EXHIBIT 3.6
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
PEET'S COFFEE & TEA, INC.
I.
Name
The name of this corporation is Peet's Coffee & Tea, Inc.
II.
Authorized Shares
A. This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares which the corporation is authorized to issue is sixty million
(60,000,000). Fifty million (50,000,000) shares shall be Common Stock, each
having no par value. Ten million (10,000,000) shares shall be Preferred Stock,
each having no par value.
B. The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby expressly authorized to provide for
the issuance of all or any of the remaining shares of the Preferred Stock in one
or more series, and to fix the number of shares and to determine or alter for
each such series, such voting powers, full or limited, or no voting powers, and
such designation, preferences, and relative, participating, optional, or other
rights and such qualifications, limitations, or restrictions thereof, as shall
be stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such shares and as may be permitted by
the Washington Business Corporations Act (the "Act"). The Board of Directors is
also expressly authorized to increase or decrease the number of shares of any
series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be decreased in accordance with the foregoing sentence, the
shares constituting such decrease shall resume the status that they had prior to
the adoption of the resolution originally fixing the number of shares of such
series.
III.
Directors
For the management of the business and for the conduct of the affairs of
the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its
<PAGE>
directors and of its shareholders or any class thereof, as the case may be, it
is further provided that:
A. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the Board of Directors shall be fixed
exclusively by resolutions adopted by a majority of the authorized number of
directors constituting the Board of Directors.
B.
1. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, the directors
shall be divided into three classes designated as Class I, Class II and Class
III, respectively. At each annual meeting of shareholders, directors shall be
elected for a term of three years to succeed the directors of the class whose
terms expire at such annual meeting. During such time or times that the
corporation is subject to Section 2115(b) of the California General Corporation
Law ("CGCL"), this Section B of Article III shall become effective and be
applicable only when the corporation is a "listed" corporation within the
meaning of Section 301.5 of the CGCL.
2. If the corporation is unable to have a classified board under
applicable law, Section B.1 of this Article III shall not apply and all
directors shall be elected at each annual meeting of shareholders to hold office
until the next annual meeting.
3. No shareholder entitled to vote at an election for directors may
cumulate votes to which such shareholder is entitled, unless, at the time of
such election, the corporation is (i) subject to Section 2115(b) of the CGCL and
(ii) is not or ceases to be a "listed" corporation under Section 301.5 of the
CGCL. During this time, every shareholder entitled to vote at an election for
directors may cumulate such shareholder's votes and give one candidate a number
of votes equal to the number of directors to be elected multiplied by the number
of votes to which such shareholder's shares are otherwise entitled, or
distribute the shareholder's votes on the same principle among as many
candidates as such shareholder thinks fit. No shareholder, however, shall be
entitled to so cumulate such shareholder's votes unless (i) the names of such
candidate or candidates have been placed in nomination prior to the voting and
(ii) the shareholder has given notice at the meeting, prior to the voting, of
such shareholder's intention to cumulate such shareholder's votes. If any
shareholder has given proper notice to cumulate votes, all shareholders may
cumulate their votes for any candidates who have been properly placed in
nomination. Under cumulative voting, the candidates receiving the highest
number of votes, up to the number of directors to be elected, are elected.
Notwithstanding the foregoing provisions of this section, every director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
2.
<PAGE>
C.
1. During such time or times that the corporation is subject to
Section 2115(b) of the CGCL, the Board of Directors or an individual director
may be removed from office at any time without cause by the affirmative vote of
the holders of at least a majority of the outstanding shares entitled to vote on
such removal; provided, however, that unless the entire Board is removed, no
individual director may be removed when the votes cast against such director's
removal, or not consenting in writing to such removal, would be sufficient to
elect that director if voted cumulatively at an election which the same total
number of votes were cast (or, if such action is taken by written consent, all
shares entitled to vote were voted) and the entire number of directors
authorized at the time of such director's most recent election were then being
elected.
2. At any time or times that the corporation is not subject to
Section 2115(b) of the CGCL and subject to any limitations imposed by law,
Section III.C.1 above shall no longer apply and removal shall be effected only
for cause.
D.
1. Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes and any newly created
directorships resulting from any increase in the number of directors shall,
unless the Board of Directors determines by resolution that any such vacancies
or newly created directorships shall be filled by the shareholders, except as
otherwise provided by law, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of
Directors, and not by the shareholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of
the director for which the vacancy was created or occurred and until such
director's successor shall have been elected and qualified.
2. If at the time of filling any vacancy or any newly created
directorship the directors then in office shall constitute fewer than a quorum
of the board, they may fill the vacancy by the affirmative vote of a majority of
all Directors in office.
3. At any time or times that the corporation is subject to Section
2115(b) of the CGCL, if, after the filling of any vacancy by the directors then
in office who have been elected by shareholders shall constitute less than a
majority of the directors then in office, then
a. Any holder or holders of an aggregate of five percent (5%)
or more of the total number of shares at the time outstanding have the right to
vote for those directors may call a special meeting of shareholders; or
b. The Superior Court of the proper county shall, upon
application of such shareholder or shareholders, summarily order a special
meeting of shareholders, to be held to elect the entire board, all in accordance
with Section 305(c) of the CGCL. The term of office of any director shall
terminate upon that election of a successor.
3.
<PAGE>
IV.
Bylaws
A. The Board of Directors shall have the power to make, adopt, amend or
repeal the Bylaws, or adopt new Bylaws for this corporation. Any adoption,
amendment or repeal of the Bylaws of the corporation by the Board of Directors
shall require the approval of a majority of the authorized number of directors.
B. Subject to paragraph (b) of Section 44 of the corporation's Bylaws,
the shareholders shall also have the power to adopt, amend or repeal the Bylaws
of the corporation; provided, however, that, in addition to any vote of the
holders of any class or series of stock of the corporation required by law or by
these Amended and Restated Articles of Incorporation, the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of all of the then-outstanding shares of the capital stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the Bylaws of the corporation.
V.
Shareholders
A. No action shall be taken by the shareholders of the corporation except
at an annual or special meeting of shareholders called in accordance with the
Bylaws.
B. Advance notice of shareholder nominations for the election of
directors and of business to be brought by shareholders before any meeting of
the shareholders of the corporation shall be given in the manner provided by the
Bylaws of the corporation.
C.
1. No shareholder of this Corporation shall have, solely by reason
of being a shareholder, any preemptive or preferential right or subscription
right to any stock of this Corporation or to any obligations convertible into
stock of this Corporation, or to any warrant or option for the purchase thereof,
except to the extent provided by resolution or resolutions of the Board of
Directors establishing a series of Preferred Stock or by written agreement with
this Corporation.
2. The approval of any plan of merger, plan of share exchange, sale,
lease, exchange or other disposition of all, or substantially all, of the
Corporation's property otherwise than in the usual and regular course of
business, or proposal to dissolve, shall require the affirmative vote of the
holders of not less than a majority of all outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors of
the Corporation. At any time when the corporation is subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, pursuant to the authority granted under Revised Code of
Washington ("RCW") 23B.10.030, RCW 23B.11.030, RCW 23B.12.020, and RCW
23B.14.020,
4.
<PAGE>
the vote of shareholders of this Corporation required in order to approve
amendments to the Articles of Incorporation, a plan of merger or share exchange,
the sale, lease, exchange, or other disposition of all or substantially all of
the property of the Corporation not in the usual and regular course of business,
or dissolution of the Corporation shall be a majority of all of the votes
entitled to be cast by each voting group, regardless of whether or not the
corporation is a "public company," as that term is defined in Section 23B.01.400
of the Act.
VI.
Liability and Indemnification
A. No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for his or her conduct as a
director, which conduct takes place on or after the date this Article VI becomes
effective, except for (i) acts or omissions that involve intentional misconduct
or a knowing violation of law by the director, (ii) conduct violating RCW
23B.08.310, or (iii) any transaction from which the director will personally
receive a benefit in money, property or services to which the director is not
legally entitled. If, after this Article VI becomes effective, the Act is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
corporation shall be deemed eliminated or limited to the fullest extent
permitted by the Act, as so amended.
B. The corporation shall indemnify any individual made a party to a
proceeding because that individual is or was a director of the corporation and
shall advance or reimburse the reasonable expenses incurred by such individual
in advance of final disposition of the proceeding, without regard to the
limitations in RCW 23B.08.510 through 23B.08.550 of the Act, or any other
limitation which may hereafter be enacted to the extent such limitation may be
disregarded if authorized by the articles of incorporation, to the full extent
and under all circumstances permitted by applicable law. If, after this Article
VI becomes effective, the Act is amended to authorize corporate action further
extending indemnification of directors, then the indemnification of a director
of the corporation shall be deemed extended to the fullest extent permitted by
the Act, as so amended.
C. This corporation is authorized to provide indemnification of agents
(as defined is Section 317 of the CGCL) for breach of duty to the corporation
and its shareholders through bylaw provisions or through agreements with the
agents, or through shareholder resolutions, or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the CGCL, subject, at any
time or times the corporation is subject to Section 2115(b), to the limits on
such excess indemnification set forth in Section 204 of the CGCL.
D. Any repeal or modification of this Article VI shall be prospective and
shall not affect the rights under this Article VI in effect at the time of the
alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
5.
<PAGE>
VII.
Other Matters
A. Except as otherwise provided in these Articles, as amended from time
to time, the corporation reserves the right to amend, alter, change or repeal
any provision contained in these Amended and Restated Articles of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon the shareholders herein are granted subject to this reservation.
B. The corporation shall have authority to correct clerical errors in any
documents filed with the Secretary of State of Washington, including these
Articles or any amendments hereto, without the necessity of special shareholder
approval of such corrections.
C. Notwithstanding any other provisions of these Amended and Restated
Articles of Incorporation or any provision of law which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the capital stock of the corporation
required by law or by these Amended and Restated Articles of Incorporation or
any certificate of designation filed with respect to a series of Preferred
Stock, the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the voting power of all the then-outstanding shares of
capital stock of the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend
or repeal the Articles.
In Witness Whereof, these Articles have been subscribed this day
of November, 2000 by the undersigned who affirms that the statements made herein
are true and correct.
____________________________________________
Christopher P. Mottern
President and Chief Executive Officer
6.
