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-3.5 — Certificate of Incorporation – Luck’s, Inc.
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EXHIBIT 3.5
CERTIFICATE OF INCORPORATION
OF
LUCK'S, INCORPORATED
I, the undersigned, for the purpose of establishing 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 1,
Title 8 of the 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)
LUCK'S, INCORPORATED.
SECOND: The address, including street, number, city and county, of
the registered office of the corporation in the State of Delaware is 229 South
State Street, City of Dover, County of Kent; and the name of the registered
agent of the corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business of the corporation and the object 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 a 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, trademarks, 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, firm, 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 accounts, 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.
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To draw, make, accept, endorse, discount, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures, and other
negotiable or transferrable 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, exclude, 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 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 and 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 the business of buying gold or
silver bullion or foreign coins or as authorizing the corporation to engage in
the business of banking or insurance or
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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
have authority to issue is Five Hundred (500) without par value. 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 One Thousand Dollars ($1,000.00).
SIXTH: The name and place of residence of the incorporator is as
follows:
NAME PLACE OF RESIDENCE
---- ------------------
R. G. Dickerson 229 South State Street
Dover, Delaware
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
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regulations the accounts and books of the corporation, or any of
them, 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 shares 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 other corporation and no other act of the corporation shall, in the
absence of fraud, in anyway 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,
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such other corporation. Any director of the corporation individually or
any firm or association 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 in 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 which 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, insofar 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, officers 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 receiving proper compensation therefor.
6. If the By-laws no 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 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
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291 of Title 8 of the Delaware Code, or on the application of trustees in
dissolution or of any receiver 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, 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, the undersigned, being the incorporator herein-above
named, does hereby certify that the facts hereinabove stated are truly set
forth and according has hereunto set his hand and seal.
Dated: August 30, 1967.
/s/ R.G. Dickerson (L.S.)
-------------------------------------
STATE OF DELAWARE )
) SS.:
COUNTY OF KENT )
BE IT REMEMBERED that personally appeared before me, the undersigned, a
Notary Public duly authorized to take acknowledgment of deeds by the laws of
the place where the foregoing Certificate of Incorporation was signed, R. G.
Dickerson, the incorporator who signed the foregoing Certificate of
Incorporation, known to me personally to be such, and who acknowledged the same
to be his act and deed, and that the facts therein stated are true.
GIVEN under my hand on August 30, 1967.
/s/
-------------------------------------
Notary Public
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