Certificate of Incorporation - Weider Nutritional International Inc.
CERTIFICATE OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WEIDER NUTRITION INTERNATIONAL, INC.
Adopted in accordance with the provisions of Section 242 and
Section 245 of the General Corporation Law of the State of Delaware
We, the Chief Executive Officer and President and Chief Operating
Officer, Executive Vice President and Secretary of Weider Nutrition
International, Inc. (the "Corporation"), a corporation existing under the laws
of the State of Delaware, do hereby certify as follows:
FIRST: That the Corporation was incorporated August 8, 1996.
SECOND: That the Certificate of Incorporation of the Corporation has
been amended and restated in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation shall be Weider Nutrition International,
Inc.
ARTICLE II
REGISTERED OFFICE
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, Delaware 19805-1297 in the City of
Wilmington. The name of the Corporation's registered agent at such address is
The Prentice-Hall Corporation System, Inc.
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ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL STRUCTURE
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is eighty-five million
(85,000,000) shares, consisting of:
(a) fifty million (50,000,000) shares of Class A common
stock, par value $.01 per share (the "Class A Common Stock");
(b) twenty-five million (25,000,000) shares of Class B common
stock, par value $.01 per share (the "Class B Common Stock"); and
(c) ten million (10,000,000) shares of preferred stock, par
value $.01 per share (the "Preferred Stock").
The board of directors of the Corporation (the "Board of Directors")
is hereby expressly vested with authority to provide for the issuance of shares
of Preferred Stock in one or more classes or one or more series, with such
voting powers, full or limited, or no voting powers, and with such
designations, preferences and relative, participating, optional and other
special rights, and qualifications, limitations or restrictions thereof, if
any, as shall be stated and expressed in the resolution or resolutions
providing for such issue adopted by the Board of Directors under the General
Corporation Law of the State of Delaware. Except as otherwise provided by law,
the holders of the Preferred Stock of the Corporation shall only have such
voting rights as are provided for or expressed in the resolutions of the Board
of Directors relating to such Preferred Stock adopted pursuant to the authority
contained in the Certificate of Incorporation.
ARTICLE V
VOTING RIGHTS
Subject to the limitations provided by law and subject to any voting
rights applicable to shares of the Preferred Stock, the Class A Common Stock
and the Class B Common Stock shall have the sole right and power to vote on all
matters on which a vote of shareholders is to be taken. In all matters, with
respect to actions both by vote and by consent, each holder of shares of the
Class A Common Stock shall be entitled to cast one vote in person or by proxy
for each share of Class A Common Stock standing in such holder's name on the
transfer books of the Corporation; and each holder of shares of the Class B
Common Stock shall be entitled to cast ten votes in person or by proxy for each
share of Class B Common Stock standing in such holder's name on the transfer
books of the Corporation. Except as
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otherwise provided above and subject to the limitations provided by law and
subject to any voting rights applicable to shares of the Preferred Stock, the
holders of shares of the Class A Common Stock and Class B Common Stock shall
vote together as a single class, together with the holders of any shares of the
Preferred Stock which are entitled to vote, and not as a separate class.
ARTICLE VI
BOARD OF DIRECTORS
The business and affairs of the Corporation shall be managed by the
Board of Directors. The Board of Directors shall consist of three or more
members as determined by the bylaws of the Corporation. A director shall hold
office until his or her successor shall be elected and duly qualified;
provided, however, that any director of the Corporation may be removed from
office with or without cause by the affirmative vote of holders of a majority
of the capital stock of the Corporation entitled to vote thereon at any annual
or special meeting of stockholders of the Corporation.
Newly created directorships resulting from any increase in the number
of directors or any vacancy on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum, or by a sole remaining director. Any director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of directors in which the newly created
directorship was created or the vacancy occurred.
ARTICLE VII
BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or
repeal the bylaws of the Corporation.
ARTICLE VIII
ELECTION OF DIRECTORS
The election of directors of the Corporation need not be by written
ballot unless the bylaws of the Corporation shall so provide.
ARTICLE IX
DIVIDENDS
Subject to the rights, if any, of the holders of Preferred Stock then
outstanding, the holders of shares of Class A Common Stock and the holders of
shares of Class B Common Stock shall be entitled to receive when, as, and if
declared by the Board of Directors, out of the assets of the Corporation which
are by law available therefor, dividends payable either in cash, in property,
or in shares of capital stock
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of the Corporation. Upon consummation of the Corporation's initial public
offering of Class A Common Stock, the holders of shares of Class B Common Stock
shall be entitled to a one-time dividend payment of $18.0 million.
ARTICLE X
CONVERSION
The holders of shares of the Class A Common Stock shall not have the
right to convert their shares of Class A Common Stock into any other
securities.
The holders of shares of the Class B Common Stock at their election
shall have the right, at any time or from time to time, to convert any or all
of their shares of Class B Common Stock into shares of Class A Common Stock, on
a one to one basis, by delivery to the Corporation of the certificates
representing such shares of Class B Common Stock duly endorsed for such
conversion. Any shares of the Class B Common Stock that are transferred will
automatically convert into shares of the Class A Common Stock, on a one to one
basis, effective as of the date on which certificates representing such shares
are presented for transfer on the books of the Corporation.
ARTICLE XI
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by Delaware
law, indemnify any person (the "Indemnitee") who is or was involved in any
manner (including, without limitation, as a party or a witness) in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action, suit or proceeding brought by or in
the right of the Corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that the Indemnitee is or was a director or
officer of the Corporation, or is or was serving another entity in such
capacity at the request of the Corporation, against all expenses and
liabilities actually and reasonably incurred by the Indemnitee in connection
with the defense or settlement of such Proceeding (including attorneys' fees).
THIRD: That such amended and restated Certificate of Incorporation
has been duly adopted in accordance with Section 242 and Section 245 of the
General Corporation Law of the State of Delaware by the written consent of a
majority of the stockholders of the Corporation in accordance with Section 228
of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, we have signed this certificate this 26th day of
August, 1996.
/s/ Richard B. Bizzaro
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Richard B. Bizzaro
Chief Executive Officer and President
ATTEST:
/s/ Robert K. Reynolds
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Robert K. Reynolds
Chief Operating Officer, Executive
Vice President and Secretary