Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Form S-1 Registration Statement 115 718K
2: EX-1 Purchase Agreement 23 99K
3: EX-2 Asset Purchase Agreement 147 372K
4: EX-3.1 Restated Certificate of Incorporation 7 34K
5: EX-3.2 Gorges/Quik-To-Fix Foods, Inc. Bylaws 14 53K
6: EX-4 Indenture 208 778K
7: EX-10.1 Agreement for Investment Banking Services 4 23K
16: EX-10.10 Lease Agreement 17 63K
17: EX-10.11 Supply Agreement 35 104K
18: EX-10.12 Letter Agreement 2 15K
19: EX-10.13 Beef Pattie Agreement 2 15K
20: EX-10.14 Gas Sales Agreement Dated December 1, 1995 9 41K
21: EX-10.15 Contract for Industrial Gas Service 33 126K
22: EX-10.16 Gas Sales Agreement Dated June 1, 1995 17 57K
23: EX-10.17 Waste Water Treatment Agreement 1 13K
24: EX-10.18 Securities Purchase and Stockholders Agreement 77 302K
25: EX-10.19 Consulting Agreement 6 28K
8: EX-10.2 Transition Services Agreement 27 83K
26: EX-10.20 Bill of Sale - Tyson Foods, Inc. 4 19K
27: EX-10.21 Bill of Sale - Gorges Foodservice, Inc. 4 19K
28: EX-10.22 Employment Agreement - J. David Culwell 10 53K
29: EX-10.23 Employment Agreement - Hernando Aviles 11 53K
30: EX-10.24 Employment Agreement - Stuart A. Ensor 11 53K
31: EX-10.25 Employment Agreement - Robert M. Powers 11 53K
32: EX-10.26 Employment Agreement - Randall H. Collins 11 53K
33: EX-10.27 Employment Agreement - Richard E. Mitchell 11 53K
9: EX-10.3 Collection Agreement 9 39K
10: EX-10.4 Trademark Licence Agreement 7 32K
11: EX-10.5 Assumption Agreement 2 18K
12: EX-10.6 Credit Agreement 157 551K
13: EX-10.7 Registration Rights Agreement 24 108K
14: EX-10.8 Co-Pack Pricing Agreement 8 27K
15: EX-10.9 Agreement of Lease 4 20K
34: EX-23.1 Consent of Ernst & Young 1 12K
35: EX-25 Statement of Eligibility of Trustee 8 30K
36: EX-27 Article 5 Financial Data Schedule 2 14K
37: EX-99.1 Stock Option Agreement - J. David Culwell 15 53K
46: EX-99.10 Form of Letter to Clients 2 16K
47: EX-99.11 Form of Letter to Nominees 2 15K
38: EX-99.2 Stock Option Agreement - Richard E. Mitchell 15 53K
39: EX-99.3 Stock Option Agreement - Randall H. Collins 15 53K
40: EX-99.4 Stock Option Agreement - Robert M. Powers 15 53K
41: EX-99.5 Stock Option Agreement - Hernando Aviles 15 53K
42: EX-99.6 Stock Option Agreement - Stuart Alan Ensor 15 53K
43: EX-99.7 Gorges Holding Company 1996 Stock Incentive Plan 18 70K
44: EX-99.8 Letter of Transmittal 12 64K
45: EX-99.9 Notice of Guaranteed Delivery 3 18K
EX-3.1 — Restated Certificate of Incorporation
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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GORGES/QUIK-TO-FIX FOODS, INC.
Gorges/Quik-to-Fix Foods, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Gorges/Quik-to-Fix Foods, Inc. The
original Certificate of Incorporation of Gorges/Quik-to-Fix Foods, Inc. was
filed with the Secretary of the State of Delaware on October 1, 1996.
2. Pursuant to Sections 242 and 245 of the Delaware General
Corporation Law, this Amended and Restated Certificate of Incorporation restates
and integrates and further amends the provisions of the Certificate of
Incorporation of this corporation. This Amended and Restated Certificate of
Incorporation was duly adopted by the Board of Directors and the stockholders of
the Corporation in accordance with Sections 242 and 245 of the Delaware General
Corporation Law.
3. The text of the Amended and Restated Certificate of Incorporation
as heretofore amended or supplemented is hereby restated and further amended to
read in its entirety as follows:
ARTICLE I
NAME
The name of the corporation is Gorges/Quik-to-Fix Foods, Inc. (the
"Corporation").
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801. The name of its registered agent at
that address is The Corporation Trust Company.
ARTICLE III
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may now or hereafter be organized under the
Delaware General Corporation Law. It shall have all powers that may now or
hereafter be lawful for a corporation to exercise under the Delaware General
Corporation Law.
ARTICLE IV
CAPITAL STOCK
SECTION 4.1. TOTAL NUMBER OF SHARES OF STOCK. The total number of
shares of stock of all classes that the Corporation shall have authority to
issue is two thousand (2,000) shares, all of which shall be shares of Common
Stock with a par value of $.01 each (the "Common Stock").
SECTION 4.2. COMMON STOCK. The shares of Common Stock of the
Corporation shall be of one and the same class. The holders of Common Stock
shall have one vote per share of Common Stock on all matters on which holders of
Common Stock are entitled to vote.
ARTICLE V
BOARD OF DIRECTORS
SECTION 5.1. POWERS OF THE BOARD OF DIRECTORS. The business and
affairs of the Corporation shall be managed by or under the direction of its
Board of Directors. 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 to:
(a) adopt, amend, alter, change or repeal the Bylaws of the
Corporation; provided, however, that no Bylaws hereafter adopted shall
invalidate any prior act of the directors that would have been valid if such new
Bylaws had not been adopted;
(b) determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to manage and direct the business and
affairs of the Corporation, including the power to designate and empower
committees of the Board of Directors, to elect, appoint and empower the officers
and other agents of the Corporation, and to determine the time and place of, and
the notice requirements for, Board meetings, as well as quorum and voting
requirements for, and the manner of taking, Board action; and
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(c) exercise all such powers and do all such acts as may be exercised
or done by the Corporation, subject to the provisions of the laws of the State
of Delaware, this Certificate of Incorporation, and the Bylaws of the
Corporation.
SECTION 5.2. NUMBER OF DIRECTORS. The number of directors
constituting the Board of Directors shall be as specified in the Bylaws or fixed
in the manner provided therein.
SECTION 5.3. VACANCIES. Any vacancies in the Board of Directors for
any reason and any newly created directorships resulting by reason of any
increase in the number of directors may be filled by the Board of Directors,
acting by a majority of the remaining directors then in office, although less
than a quorum, or by a sole remaining director, and any directors so appointed
shall hold office until their successors are elected and qualified or their
earlier death, resignation or removal.
SECTION 5.4. FACTORS TO BE CONSIDERED BY THE DIRECTORS. In
connection with the exercise of its or their judgment in determining what is in
the best interests of the Corporation and its stockholders, the Board of
Directors, any committee of the Board of Directors or any individual director
may, but shall not be required to, in addition to considering the long-term and
short-term interests of the stockholders, consider all of the following factors
and any other factors which it deems relevant: (i) the social and economic
effects of the matter to be considered on the Corporation and its subsidiaries,
its and their employees, customers and creditors and the communities in which
the Corporation and its subsidiaries operate or are located; and (ii) when
evaluating a business combination or a proposal by another Person or Persons to
make a business combination or a tender or exchange offer or any other proposal
relating to a potential change of control of the Corporation, (x) the business
and financial condition and earnings prospects of the acquiring Person or
Persons, including, but not limited to, debt service and other existing
financial obligations, financial obligations to be incurred in connection with
the acquisition, and other likely financial obligations of the acquiring Person
or Persons, and the possible effect of such conditions upon the Corporation and
its subsidiaries and the communities in which the Corporation and its
subsidiaries operate or are located, (y) the competence, experience and
integrity of the acquiring Person or Persons and its or their management, and
(z) the prospects for successful conclusion of the business combination, offer
or proposal. The provisions of this Section shall be deemed solely to grant
discretionary authority to the directors and shall not be deemed to provide to
any constituency the right to be considered. As used in this Section, the term
"Person" means any individual, partnership, firm, corporation, limited liability
company, association, trust, unincorporated organization or other entity; when
two or more Persons act as a partnership, limited partnership, syndicate, or
other group acting in concert for the purpose of acquiring, holding, voting or
disposing of securities of the Corporation, such partnership, limited
partnership, syndicate or group shall also be deemed a "Person" for purposes of
this Section.
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ARTICLE VI
INDEMNIFICATION
SECTION 6.1. RIGHT TO INDEMNIFICATION. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact:
(a) that he or she, or a person of whom he or she is the legal
representative, is or was a director or Board-elected officer of the
Corporation, or
(b) that he or she, being at the time a director or Board-elected
officer of the Corporation, is or was serving at the request of the Corporation
as a director, trustee, officer, employee or agent of another corporation or of
a partnership, limited liability company, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(collectively, "another enterprise" or "other enterprise"), whether either in
case (a) or in case (b) the basis of such proceeding is alleged action or
inaction (x) in an official capacity as a director or officer of the
Corporation, or as a director, trustee, officer, employee or agent of such other
enterprise, or (y) in any other capacity related to the Corporation or such
other enterprise while so serving as a director, trustee, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law (or any
successor provision or provisions) as the same exists or may hereafter be
amended (but, in the case of any such amendment, with respect to alleged action
or inaction occurring prior to such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
permitted prior thereto), against all expense, liability and loss (including
without limitation attorneys' fees and expenses, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) actually and reasonably
incurred by such person in connection therewith. The persons indemnified by
this Article VI are hereinafter referred to as "indemnitees." Such
indemnification as to such alleged action or inaction shall continue as to an
indemnitee who has after such alleged action or inaction ceased to be a director
or officer of the Corporation, or director, trustee, officer, employee or agent
of such other enterprise; and shall inure to the benefit of the indemnitee's
heirs, executors and administrators. Notwithstanding the foregoing, except as
may be provided in the Bylaws or by the Board of Directors, the Corporation
shall not indemnify any such indemnitee in connection with a proceeding (or
portion thereof) initiated by such indemnitee (but this prohibition shall not
apply to a counterclaim, cross-claim or third-party claim brought by the
indemnitee in any proceeding) unless such proceeding (or portion thereof) was
authorized by the Board of Directors. The right to indemnification conferred in
this Article VI: (i) shall be a contract right; (ii) shall not be affected
adversely as to any indemnitee by any amendment of this Certificate of
Incorporation with respect to any alleged action or inaction occurring prior to
such amendment; and (iii) shall, subject to any requirements imposed by law and
the
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Bylaws, include the right to be paid by the Corporation the expenses (including
attorneys' fees) incurred in defending any such proceeding in advance of its
final disposition.
SECTION 6.2. RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
INDEMNIFICATION. The rights to indemnification and to the advancement of
expenses conferred in this Article VI shall not be exclusive of any other right
which any person may have or hereafter acquire under this Certificate of
Incorporation, any statute, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. The Bylaws may contain such other
provisions concerning indemnification, including provisions specifying
reasonable procedures relating to and conditions to the receipt by indemnitees
of indemnification, provided that such provisions are not inconsistent with the
provisions of this Article VI.
SECTION 6.3. AGENTS AND EMPLOYEES. The Corporation may, to the
extent authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any other officer,
employee or agent of the Corporation (or any person serving at the Corporation's
request as a director, trustee, officer, employee or agent of another
enterprise) or to any person who is or was a director, officer, employee or
agent of any of the Corporation's affiliates, predecessor or subsidiary
corporations or of a constituent corporation absorbed by the Corporation in a
consolidation or merger or who is or was serving at the request of such
affiliate, predecessor or subsidiary corporation or of such constituent
corporation as a director, trustee, officer, employee or agent of another
enterprise, in each case as determined by the Board of Directors to the fullest
extent of the provisions of this Article VI in cases of the indemnification and
advancement of expenses of directors and Board-elected officers of the
Corporation, or to any lesser extent (or greater extent, if permitted by law)
determined by the Board of Directors. If so indemnified, such persons shall be
included in the term "indemnitee" or "indemnitees" as used in this Article VI
and in the Bylaws of the Corporation.
ARTICLE VII
LIMITATION ON LIABILITY OF DIRECTORS
No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided, however, that the foregoing shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. If the Delaware
General Corporation Law is amended hereafter to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the
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Delaware General Corporation Law, as so amended. Any amendment, repeal or
modification of this Article VII shall not adversely affect any right or
protection of a director of the Corporation existing hereunder with respect to
any act or omission occurring prior to such amendment, repeal or modification.
For purposes of this Article VII, "fiduciary duty as a director" also shall
include any fiduciary duty arising out of serving at the Corporation's request
as a director of another corporation, partnership, limited liability company,
joint venture or other enterprise, and "personal liability to the Corporation or
its stockholders" also shall include any liability to such other corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, and any liability to the Corporation in its capacity as a security
holder, joint venturer, partner, member, beneficiary, creditor or investor of or
in any such other corporation, partnership, limited liability company, joint
venture, trust or other enterprise.
ARTICLE VIII
COMPROMISE
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 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.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time and from time to time
to amend, alter, change or repeal any provisions contained in this Certificate
of Incorporation; and other provisions authorized by the Delaware General
Corporation Law at the time in force
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may be added or inserted, in the manner now or hereafter prescribed by law; and
all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other person whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article.
ARTICLE X
SEVERABILITY
In the event that any of the provisions of this Certificate of
Incorporation (including any provision within a single Article, Section,
paragraph or sentence) is held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, the remaining provisions are severable
and shall remain enforceable to the full extent permitted by law.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been executed by a duly authorized officer this _____ day of
November, 1996.
GORGES/QUIK-TO-FIX FOODS, INC.
By: /s/ James A. O'Donnell
------------------------------------
Name: James A. O'Donnell
-------------------------------
Title: President
-------------------------------
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Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 1/22/97 | | | | | | | None on these Dates |
| | 10/1/96 | | 1 |
| List all Filings |
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