Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 120 663K
Business-Combination Transaction
2: EX-2.1 Agreement of Sale and Plan of Merger 90 281K
3: EX-2.2 1st Amendment to Agreement of Sale 5 27K
4: EX-3.1 Cert. of Incorp. - American Home Foods Products 8 41K
13: EX-3.10 Bylaws of Canadian Home Products 14 64K
14: EX-3.11 Ceri. of Incorp. - Heritage Brands Holdings 4 22K
15: EX-3.12 Bylaws of Heritage Brands Holdings 13 57K
16: EX-3.13 Certificate of Incorporation - Heritage Brands 2 17K
17: EX-3.14 Bylaws of Heritage Brands 13 57K
18: EX-3.15 Certificate of Incorporation of Campfire 2 17K
19: EX-3.16 Bylaws of Campfire, Inc. 13 57K
5: EX-3.2 Bylaws of American Home Foods Products, Inc. 9 42K
6: EX-3.3 Certificate of Incorporation - American Home Foods 9 41K
7: EX-3.4 Bylaws of American Home Foods 7 37K
8: EX-3.5 Certificate of Incorporation - Luck's, Inc. 7 33K
9: EX-3.6 Bylaws of Luck's, Inc. 7 36K
10: EX-3.7 Certificate of Incorporation - M. Polaner, Inc. 6 32K
11: EX-3.8 Bylaws of M. Polaner, Inc. 7 41K
12: EX-3.9 Certificate of Continuance 13 45K
20: EX-4.1 Registration Rights Agreement 17 82K
21: EX-4.2 Indenture Dated as of November 1, 1996 125 413K
22: EX-10.1 Transisitional Services Agreement 9 35K
27: EX-10.10 Monitoring and Oversight Agreement 7 30K
23: EX-10.2 Financial Advisory Agreement 5 26K
24: EX-10.3 International Home Foods, Inc. Stock Option Plan 16 74K
25: EX-10.8 Indemnification Agreement 11 45K
26: EX-10.9 Credit Agreement 242 879K
28: EX-12.1 Computation of Ratio of Earnings to Fixed Charges 1 13K
29: EX-12.2 Pro Forma Ratio of Earnings to Fixed Charges 1 13K
30: EX-16.1 Letter Re: Change to Certifying Acountants 1 12K
31: EX-21.1 List of Subsidiaries 1 12K
32: EX-23.1 Consent of Arthur Andersen LLP 1 12K
33: EX-25.1 Form T-1 5 25K
34: EX-27.1 Financial Data Schedule 1 15K
EX-3.3 — Certificate of Incorporation – American Home Foods
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EXHIBIT 3.3
CERTIFICATE OF INCORPORATION
OF
AMERICAN HOME FOODS, INC.
We, the undersigned, for the purpose of associating to establish a
corporation for the transaction of the business and the promotion and conduct
of the objects and purposes hereinafter stated, under the provisions and
subject to the requirements of the laws of the State of Delaware (particularly
Chapter I, Title 8 of the 1953 Delaware Code and the acts amendatory thereof
and supplemental thereto, and known as the "General Corporation Law of the
State of Delaware"), do make and file this Certificate of Incorporation in
writing and do hereby certify as follows, to wit:
FIRST: The name of the corporation (hereinafter called the
corporation) is AMERICAN HOME FOODS, INC.
SECOND: The respective names of the County and of the City within the
County in which the principal office of the corporation is to be located in the
State of Delaware are the County of Kent and the City of Dover. The name of
the resident agent of the corporation is The Prentice-Hall Corporation System,
Inc. The street and number of said principal office and the address by street
and number of said resident agent is 229 South State Street, Dover, Delaware.
THIRD: The nature of the business of the corporation and the objects
or purposes to be transacted, promoted or carried on by it are as follows:
To acquire by purchase, exchange, lease, or otherwise and to own,
hold, use, develop, operate, sell, assign, lease, transfer, convey, exchange,
mortgage, pledge or otherwise dispose of or deal in and with, real and personal
property of every class or description and rights and privileges therein
wheresoever situate.
To manufacture, process, purchase, sell and generally to trade and
deal in and with goods, wares and merchandise of every kind, nature and
description, and to engage and participate in any mercantile, industrial or
trading business of any kind or character whatsoever.
To apply for, register, obtain, purchase, lease, take licenses in
respect of or otherwise acquire, and to hold, own, use, operate, develop,
enjoy, turn to account, grant licenses and immunities in respect of,
manufacture, under and to introduce, sell, assign, mortgage, pledge or
otherwise dispose of, and, in any manner deal with and contract with reference
to:
(a) inventions, devices, formulae, processes and any
improvements and modifications thereof;
(b) letters patent, patent rights, patented processes,
copyrights, designs, and similar rights, trade-marks, trade symbols
and other indications of origin and ownership granted by or recognized
under the laws of the United States of America
or of any state or subdivision thereof or of any foreign country or
subdivision thereof, and all rights connected therewith or
appertaining thereunto;
(c) franchises, licenses, grants and concessions.
To purchase or otherwise acquire, and to hold, mortgage, pledge, sell,
exchange or otherwise dispose of, securities (which term, for the purpose of
this Article THIRD, includes, without limitation of the generality thereof, any
shares of stock, bonds, debentures, notes, mortgages, or other obligations, and
any certificates, receipts or other instruments representing rights to receive,
purchase or subscribe for the same, or representing any other rights or
interests therein or in any property or assets) created or issued by any
persons, firms, associations, corporations, or governments or subdivisions
thereof; to make payment therefor in any lawful manner; and to exercise, as
owner or holder of any securities, any and all rights, powers and privileges in
respect thereof.
To make, enter into, perform and carry out contracts of every kind and
description with any person, firm, association, corporation or government or
subdivision thereof.
To acquire by purchase, exchange or otherwise, all, or any part of, or
any interest in, the properties, assets, business and good will of any one or
more persons, firms, associations or corporations heretofore or hereafter
engaged in any business for which a corporation may now or hereafter be
organized under the laws of the State of Delaware; to pay for the same in cash,
property or its own or other securities; to hold, operate, reorganize,
liquidate, sell or in any manner dispose of the whole or any part thereof; and
in connection therewith, to assume or guarantee performance of any liabilities,
obligations or contracts of such persons, firms, associations or corporations,
and to conduct the whole or any part of any business thus acquired.
To lend its uninvested funds from time to time to such extent, to such
persons, firms, associations, corporations, governments or subdivisions
thereof, and on such terms and on such security, if any, as the Board of
Directors of the corporation may determine.
To endorse or guarantee the payment of principal, interest or
dividends upon, and to guarantee the performance of sinking fund or other
obligations of, any securities, and to guarantee in any way permitted by law
the performance of any of the contracts or other undertakings in which the
corporation may otherwise be or become interested, of any persons, firm,
association, corporation, government or subdivision thereof, or of any other
combination, organization or entity whatsoever.
To borrow money for any of the purposes of the corporation, from time
to time, and without limit as to amount; from time to time to issue and sell
its own securities in such amounts, on such terms and conditions, for such
purposes and for such prices, now or hereafter permitted by the laws of the
State of Delaware and by this Certificate of Incorporation, as the Board of
Directors of the corporation may determine; and to secure such securities by
mortgage upon, or the pledge of, or the conveyance or assignment in trust of,
the whole or any part of the properties, assets, business and good will of the
corporation, then owned or thereafter acquired.
-2-
To draw, make, accept, endorse, discount, execute, and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and
other negotiable or transferable instruments and evidences of indebtedness
whether secured by mortgage or otherwise, as well as to secure the same by
mortgage or otherwise, so far as may be permitted by the laws of the State of
Delaware.
To purchase, hold, cancel, reissue, sell, exchange, transfer or
otherwise deal in its own securities from time to time to such an extent and in
such manner and upon such terms as the Board of Directors of the corporation
shall determine; provided that the corporation shall not use its funds or
property for the purchase of its own shares of capital stock when such use
would cause any impairment of its capital, except to the extent permitted by
law; and provided further that shares of its own capital stock belonging to the
corporation shall not be voted upon directly or indirectly.
To organize or cause to be organized under the laws of the State of
Delaware, or of any other State of the United States of America, or of the
District of Columbia, or of any territory, dependency, colony or possession of
the United States of America, or of any foreign country, a corporation or
corporations for the purpose of transacting, promoting or carrying on any or
all of the objects or purposes for which the corporation is organized, and to
dissolve, wind up, liquidate, merge or consolidate any such corporation or
corporations or to cause the same to be dissolved, wound up, liquidated, merged
or consolidated.
To conduct its business in any and all of its branches and maintain
offices both within and without the State of Delaware, in any and all States of
the United States of America, in the District of Columbia, in any or all
territories, dependencies, colonies or possessions of the United States of
America, and in foreign countries.
To such extent as a corporation organized under the General
Corporation Law of the State of Delaware may now or hereafter lawfully do, to
do, either as principal or agent and either alone or in connection with other
corporations, firms or individuals, all and everything necessary, suitable,
convenient or proper for, or in connection with, or incident to, the
accomplishment of any of the purposes or the attainment of any one or more of
the objects herein enumerated, or designed directly or indirectly to promote
the interests of the corporation or to enhance the value of its properties; and
in general to do any and all things and exercise any and all powers, rights and
privileges which a corporation may now or hereafter be organized to do or to
exercise under the General Corporation Law of the State of Delaware or under
any act amendatory thereof, supplemental thereto or substituted therefor.
The foregoing provisions of this Article THIRD shall be construed both
as purposes and powers and each as an independent purpose and power. The
foregoing enumeration of specified purposes and powers shall not be held to
limit or restrict in any manner the purposes and powers of the corporation, and
the purposes and powers herein specified shall, except when otherwise provided
in this Article THIRD, be in no wise limited or restricted by reference to, or
inference from, the terms of any provision of this or any other Article of this
Certificate of Incorporation; provided that nothing herein contained shall be
construed as authorizing the corporation to issue bills, notes or other
evidences of debt for circulation as money, or to carry on the business of
receiving deposits of money or the business of buying gold or silver bullion or
foreign coins or as authorizing the
-3-
corporation to engage in the business of banking or insurance or to carry on
the business of constructing, maintaining or operating public utilities in the
State of Delaware; and provided, further, that the corporation shall not carry
on any business or exercise any power in any state, territory, or country which
under the laws thereof the corporation may not lawfully carry on or exercise.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is One Thousand (1,000), and the par value of
each of such shares shall be One ($1.00) Dollar. All such shares are of one
class and are designated as Common Stock.
FIFTH: The minimum amount of capital with which the corporation will
commence business is One Thousand ($1,000.00) Dollars.
SIXTH: The names and places of residence of each of the incorporators
are as follows:
C.D. Crowley, Jr. 509 North Broadway, Yonkers, New York
David S. Junker 22 Montrose Road, Scarsdale, New York
Dorothy Barnes 56-38 Bell Blvd., Bayside, New York
SEVENTH: The corporation is to have perpetual existence.
EIGHTH: The private property of the stockholders of the corporation
shall not be subject to the payment of corporate debts to any extent whatever.
NINTH: 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 and of its directors and
stockholders, it is further provided:
1. The number of directors of the corporation shall be
as specified in the By-Laws of the corporation but such number may
from time to time be increased or decreased in such manner as may be
prescribed by the By-Laws. In no event, shall the number of directors
be less than three. The election of directors need not be by ballot.
Directors need not be stockholders.
2. In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors
is expressly authorized and empowered:
(a) To make, alter, amend, and repeal By-Laws,
subject to the power of the stockholders to alter or repeal
the By-Laws made by the Board of Directors.
(b) Subject to the applicable provisions of the
By-Laws then in effect, to determine, from time to time,
whether and to what extent and at what times and places and
under what conditions and regulations the accounts and books
of the corporation, or any of them,
-4-
shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any account or
book or document of the corporation, except as conferred by
the laws of the State of Delaware, unless and until authorized
so to do by resolution of the Board of Directors or of the
stockholders of the corporation.
(c) Without the assent or vote of the
stockholders, to authorize and issue obligations of the
corporation, secured or unsecured, to include therein such
provisions as to redeemability, convertibility or otherwise,
as the Board of Directors, in its sole discretion, may
determine, and to authorize the mortgaging or pledging, as
security therefor, of any property of the corporation, real or
personal, including after-acquired property.
(d) To determine whether any, and, if any, what
part, of the net profits of the corporation or of its net
assets in excess of its capital shall be declared in dividends
and paid to the stockholders, and to direct and determine the
use and disposition of any such net profits or such net assets
in excess of capital.
(e) To fix from time to time the amount of
profits of the corporation to be reserved as working capital
or for any other lawful purpose.
(f) To establish bonus, profit-sharing or other
types of incentive or compensation plans for the employees
(including officers and directors) of the corporation and to
fix the amount of profits to be distributed or shared and to
determine the persons to participate in any such plans and the
amounts of their respective participations.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon it, the Board of Directors may
exercise all such powers and do all such acts and things as may be
exercised or done by the corporation, subject, nevertheless, to the
provisions of the laws of the State of Delaware, of the Certificate of
Incorporation and of the By-Laws of the corporation.
3. Any director or any officer elected or appointed by
the stockholders or by the Board of Directors may be removed at any
time in such manner as shall be provided in the By-Laws of the
corporation.
4. No contract or other transaction between the
corporation and any other corporation and no other act of the
corporation shall, in the absence of fraud, in any way be affected or
invalidated by the fact that any of the directors of the corporation
are pecuniarily or otherwise interested in, or are directors or
officers of, such other corporation. Any director of the corporation
individually or any firm or association
-5-
of which any director may be a member, may be a party to, or may be
pecuniarily or otherwise interested in, any contract or transaction of
the corporation, provided that the fact that he individually or such
firm or association is so interested shall be disclosed or shall have
been known to the Board of Directors or a majority of such members
thereof as shall be present at any meeting of the Board of Directors
at which action upon any such contract or transaction shall be taken.
Any director of the corporation who is also a director or officer of
such other corporation or who is so interested may be counted in
determining the existence of a quorum at any meeting of the Board of
Directors which shall authorize any such contract or transaction, and
may vote thereat to authorize any such contract or transaction, with
like force and effect as if he were not such director or officer of
such other corporation or not so interested. Any director of the
corporation may vote upon any contract or other transaction between
the corporation and any subsidiary or affiliated corporation without
regard to the fact that he is also a director of such subsidiary or
affiliated corporation.
Any contract, transaction or act of the corporation or of the
directors, which shall be ratified by a majority of a quorum of the
stockholders of the corporation at any annual meeting, or at any
special meeting called for such purpose, shall, in so far as permitted
by law or by the Certificate of Incorporation of the corporation, be
as valid and as binding as though ratified by every stockholder of the
corporation provided, however, that any failure of the stockholders to
approve or ratify any such contract, transaction or act, when and if
submitted, shall not be deemed in any way to invalidate the same or
deprive the corporation, its directors, officer, or employees, of its
or their right to proceed with such contract, transaction or act.
5. Subject to any limitation in the By-Laws, the members
of the Board of Directors shall be entitled to such fees, salaries or
other compensation for their services and to reimbursement for their
expenses as such members as the Board of Directors shall determine.
Nothing contained herein shall preclude any director from serving the
corporation, or any subsidiary or affiliated corporation, in any other
capacity and receiving proper compensation therefor.
6. If the By-Laws so provide, the stockholders and Board
of Directors of the corporation shall have power to hold their
meetings, to have an office or offices and to keep the books of the
corporation, subject to the provisions of the laws of the State of
Delaware, outside of said State at such place or places as may from
time to time be designated by them.
TENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver
-6-
or receivers appointed for this corporation under the provisions of Section 279
of Title 8 of the Delaware Code order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said
Court directs.
If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this corporation as a consequence
of such compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the Court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders of this
corporation, as the case may be, and also on this corporation.
ELEVENTH: From time to time any of the provisions of this Certificate
of Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the corporation by
this Certificate of Incorporation are granted subject to the provisions of this
Article ELEVENTH.
IN WITNESS WHEREOF, we, the undersigned, being all of the
incorporators hereinabove named, do hereby further certify that the facts
hereinabove stated are truly set forth and accordingly have hereunto set our
respective hands and seals.
Dated: November 22, 1955.
/s/ C.D. Crowley, Jr. (L.S.)
-------------------------------------
/S/ David S. Junker (L.S.)
-------------------------------------
/s/ Dorothy Barnes (L.S.)
-------------------------------------
STATE OF NEW YORK, )
: SS.:
COUNTY OF NEW YORK, )
BE IT REMEMBERED that personally appeared before me, Lillian D.
Ryerson, a Notary Public in and for the County and State aforesaid, C. D.
CROWLEY, JR., DAVID S. JUNKER and DOROTHY BARNES, all the incorporators who
signed the foregoing Certificate of Incorporation, known to me personally to be
such, and 1 having made known to them and each of them the contents of said
Certificate of Incorporation, they did severally acknowledge the same to be the
act and deed of the signers, respectively, and that the facts therein stated
are truly set forth.
GIVEN under my hand and seal of office this 22nd day of November,
1955.
/s/ Lillian D. Ryerson
-----------------------------
Notary Public
-7-
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN HOME FOODS, INC.
(Pursuant to Section 242 of Title 8, Chapter 1 of the
Delaware Code of 1953)
---------------
AMERICAN HOME FOODS, INC. (hereinafter called the "corporation"), a
corporation organized and existing under and by virtue of Title 8, Chapter 1 of
the Delaware Code of 1953, does hereby certify as follows:
1. That the following amendment of the Certificate of
Incorporation of the corporation has been duly adopted in accordance with the
provisions of Section 242 of Title 8, Chapter 1 of the Delaware Code of 1953:
By striking out Article FOURTH thereof, reading as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is One Thousand (1,000), and
the par value of each of such shares shall be One ($1.00) Dollar. All
such shares are of one class and are designated as Common Stock."
and substituting in lieu thereof a new Article FOURTH as follows:
"FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is Twenty-Five Thousand
(25,000), and the par value of each of such shares shall be One
($1.00) Dollar. All such shares are of one class and are designated
as Common Stock."
2. That the capital of the corporation will not be reduced
under or by reason of said amendment.
IN WITNESS WHEREOF, the said AMERICAN HOME FOODS, INC. has made under
its corporate seal and signed by E.L. DOSCH, its President, and GILBERT S.
McINERNY, its Secretary, the foregoing certificate, and the said E.L. DOSCH, as
President, and GILBERT S. McINERNY, as Secretary, have hereunto respectively
set their hands and caused the corporate seal of the said corporation to be
affixed this 20th day of December, 1955.
/s/ E.L.Dosch
-------------------------------------
/s/ Gilbert S. McInerny
-------------------------------------
STATE OF NEW YORK, )
: SS.:
COUNTY OF NEW YORK, )
BE IT REMEMBERED, that on this 20 day of December, 1955,
personally came before me, LILLIAN D. RYERSON, a Notary Public in and for the
County and State aforesaid, duly commissioned and sworn to take acknowledgment
or proof of deeds, E.L. DOSCH, President of AMERICAN HOME FOODS, INC., a
corporation of the State of Delaware, the corporation described in the
foregoing Certificate, known to me personally to be such, and he the said E.L.
DOSCH, as such President, duly executed said Certificate before me, and
acknowledged the said Certificate to be his act and deed and made on behalf of
said corporation; that the signatures of the said President and of the
Secretary of said corporation to said foregoing Certificate are in the
handwriting of the said President and of the Secretary of said corporation,
respectively, and that the seal affixed to said Certificate is the common or
corporate sale of said corporation, and that his act of sealing, executing,
acknowledging and delivering the said Certificate was duly authorized by the
stockholders of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of
office the day and year aforesaid.
/s/ Lillian D. Ryerson
-------------------------------------
Notary Public
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