CERTIFICATE OF OWNERSHIP AND MERGER

 

                                    MERGING

                              JACK IN THE BOX INC.

 

                                 WITH AND INTO

                                FOODMAKER, INC.

 

                        (Pursuant to Section 253 of the

                       Delaware General Corporation Law)

 

          Foodmaker, Inc., a corporation organized and existing under the

     General Corporation Law of the State of Delaware,

 

          DOES HEREBY CERTIFY:

 

          FIRST: That this corporation owns all of the outstanding shares of

     Jack in the Box Inc., a corporation organized and existing under the

     General Corporation Law of the State of Delaware.

 

          SECOND: That this corporation, by the following resolutions of its

     Board of Directors, duly adopted at a meeting held on the 17th day of

     September, 1999, determined to merge Jack in the Box Inc. into this

     corporation on the terms and conditions set forth in such resolutions:

 

               RESOLVED, that Jack in the Box Inc. be merged with and into the

     Corporation and that the Corporation be the surviving corporation in such

     merger.

 

               FURTHER RESOLVED, that upon the effectiveness of the merger, the

     Corporation shall assume all of the liabilities and obligations of Jack in

     the Box Inc.

 

               FURTHER RESOLVED, that upon the effectiveness of the merger, the

     name of the Corporation shall be changed to "Jack in the Box Inc." and

     Article I of the Restated Certificate of Incorporation shall be amended to

     read as follows:

 

                                   "ARTICLE I

                              NAME OF INCORPORATION

 

              The name of the Corporation is Jack in the Box Inc."

 

          THIRD:  That the merger of Jack in the Box Inc. with and into the

     corporation shall be effective at 8:00 a.m., Eastern Daylight Time, on

     Monday, October 4, 1999.

 

 

<PAGE>

          IN WITNESS WHEREOF, the Corporation has caused this Certificate to be

     executed by its Treasurer, and attested by Lawrence E. Schauf, its

     Secretary, this 30th day of September, 1999.

 

                                   FOODMAKER, INC.

 

                                   By:  HAROLD L. SACHS

                                        ---------------

                                        Harold L. Sachs

                                        Treasurer

 

     Attest:

 

     By:  LAWRENCE E. SCHAUF

          ------------------

          Lawrence E. Schauf

          Secretary

 

<PAGE>

                           CERTIFICATE OF DESIGNATIONS

 

                                       OF

 

                          SERIES A JUNIOR PARTICIPATING

 

                           CUMULATIVE PREFERRED STOCK

 

                                 $.01 Par Value

 

                                       of

 

                                 FOODMAKER, INC.

 

                         Pursuant to Section 151 of the

 

                               General Corporation

 

                          Law of the State of Delaware

 

                  We, Charles W. Duddles, Executive Vice President and Chief

Financial Officer, and William E. Rulon, Senior Vice President and Secretary, of

Foodmaker, Inc., a corporation organized and existing under the General

Corporation Law of the State of Delaware, in accordance with the provisions of

Section 103 thereof, DO HEREBY CERTIFY:

 

                  That pursuant to the authority conferred upon the Board of

Directors by the Restated Certificate of Incorporation of the Corporation, the

Board of Directors on July 26, 1996, adopted the following resolution creating a

series of 750,000 (seven hundred and fifty thousand) shares of Preferred Stock,

par value $0.01 per share, designated as Series A Junior Participating

Cumulative Preferred Stock:

 

                  RESOLVED, that pursuant to the authority vested in the Board

of Directors of this Corporation in accordance with the provisions of its

Restated Certificate of Incorporation, a series of Preferred Stock of the

Corporation be, and it hereby is, created, and that the designation and amount

thereof and the voting powers, preferences and relative, participating, optional

and other special rights of the shares of such series, and the qualifications,

limitations or restrictions thereof, are as follows:

 

                  Section 1. Designation and Amount. The shares of such series

shall be designated as Series A Junior Participating Cumulative Preferred Stock,

par value $0.01 per share (the "Series A Preferred Stock"), and the number of

shares constituting such series shall be 750,000 (seven hundred and fifty

thousand).

 

                                       1

<PAGE>

                  Section 2.  Dividends and Distributions.

 

                  (a) The holders of shares of Series A Preferred Stock, in

preference to the holders of shares of Common Stock, par value $.01 per share,

of the Corporation (the "Common Stock") and of any other junior stock of the

Corporation that may be outstanding, shall be entitled to receive, when, as and

if declared by the Board of Directors out of funds legally available for the

purpose, quarterly dividends payable in cash on the tenth day of January, April,

July and October in each year (each such date being referred to herein as a

"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend

Payment Date after the first issuance of a share or fraction of a share of

Series A Preferred Stock, in an amount per share (rounded to the nearest cent)

equal to the greater of (i) $.25 per share ($1.00 per annum), or (ii) subject to

the provision for adjustment hereinafter set forth, 100 times the aggregate per

share amount of all cash dividends, and 100 times the aggregate per share amount

(payable in kind) of all non-cash dividends or other distributions, other than a

dividend payable in shares of Common Stock, or a subdivision of the outstanding

shares of Common Stock (by reclassification or otherwise), declared on the

Common Stock since the immediately preceding Quarterly Dividend Payment Date or,

with respect to the first Quarterly Dividend Payment Date, since the first

issuance of any share or fraction of a share of Series A Preferred Stock. In the

event that the Corporation shall at any time declare or pay any dividend on

Common Stock payable in shares of Common Stock, or effect a subdivision or

combination or consolidation of the outstanding shares of Common Stock (by

reclassification or otherwise) into a greater or lesser number of shares of

Common Stock, then and in each such event, the amount to which the holder of

each share of Series A Preferred Stock was entitled immediately prior to such

event under clause (ii) of the preceding sentence shall be adjusted by

multiplying such amount by a fraction, the numerator of which is the number of

shares of Common Stock outstanding immediately after such event, and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

                  (b) The Corporation shall declare a dividend or distribution

on the Series A Preferred Stock as provided in paragraph (a) of this Section 2

immediately after it declares a dividend or distribution on the Common Stock

(other than a dividend payable in shares of Common Stock); provided, however,

that in the event no dividend or distribution shall have been declared on the

Common Stock during the period between any Quarterly Dividend Payment Date and

the next subsequent Quarterly Dividend Payment Date, a dividend of $.25 per

share ($1.00 per annum) on the Series A Preferred Stock shall nevertheless be

payable on such subsequent Quarterly Dividend Payment Date.

 

                                       2

<PAGE>

                  (c) Dividends shall begin to accrue and be cumulative on

outstanding shares of Series A Preferred Stock from the Quarterly Dividend

Payment Date next preceding the date of issue of such shares of Series A

Preferred Stock, unless the date of issue of such shares is prior to the record

date for the first Quarterly Dividend Payment Date, in which case dividends on

such shares shall begin to accrue from the date of issue of such shares, or

unless the date of issue is a Quarterly Dividend Payment Date or is a date after

the record date for the determination of holders of shares of Series A Preferred

Stock entitled to receive a quarterly dividend and before such Quarterly

Dividend Payment Date, in either of which cases such dividends shall begin to

accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but

unpaid dividends shall cumulate but shall not bear interest. Dividends paid on

the shares of Series A Preferred Stock in an amount less than the total amount

of such dividends at the time accrued and payable on such shares shall be

allocated pro rata on a share-by-share basis among all such shares at the time

outstanding. The Board of Directors may fix a record date for the determination

of holders of shares of Series A Preferred Stock entitled to receive payment of

a dividend or distribution declared thereon, which record date shall be not more

than 60 days prior to the date fixed for the payment thereof.

 

                  Section 3.  Voting Rights.  The holders of shares of Series A

Preferred Stock shall have the following voting rights:

 

                  (a) Each share of Series A Preferred Stock shall entitle the

holder thereof to 100 votes (and each one one-hundredth of a share of Series A

Preferred Stock shall entitle the holder thereof to one vote) on all matters

submitted to a vote of the stockholders of the Corporation. In the event that

the Corporation shall at any time declare or pay any dividend on Common Stock

payable in shares of Common Stock or effect a subdivision or combination or

consolidation of the outstanding shares of Common Stock (by reclassification or

otherwise than by payment of a dividend in shares of Common Stock) into a

greater or lesser number of shares of Common Stock, then and in each such event,

the number of votes per share to which holders of shares of Series A Preferred

Stock were entitled immediately prior to such event shall be adjusted by

multiplying such number by a fraction, the numerator of which is the number of

shares of Common Stock outstanding immediately after such event, and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

                                       3

<PAGE>

                  (b) Except as otherwise provided in the Restated Certificate

of Incorporation of the Corporation or herein or by law, the holders of shares

of Series A Preferred Stock and the holders of shares of Common Stock shall vote

together as one class on all matters submitted to a vote of stockholders of the

Corporation.

 

                  (c) In addition, the holders of shares of Series A Preferred

Stock shall have the following special voting rights:

 

                                  (i) In the event that at any time dividends on

         Series A Preferred Stock, whenever accrued and whether or not

         consecutive, shall not have been paid or declared and a sum sufficient

         for the payment thereof set aside, in an amount equivalent to six

         quarterly dividends on all shares of Series A Preferred Stock at the

         time outstanding, then and in each such event, the holders of shares of

         Series A Preferred Stock and each other series of preferred stock now

         or hereafter issued that shall be accorded such class voting right by

         the Board of Directors and that shall have the right to elect one

         director (or, in the event any such other series is entitled to a

         greater number of directors, such number of directors, which shall be

         cumulative with and not in addition to the director provided for

         herein, such director or directors being hereinafter referred to as

         "Special Directors") as the result of a prior or subsequent default in

         payment of dividends on such series (each such other series being

         hereinafter called "Other Series of Preferred Stock"), voting

         separately as a class without regard to series, shall be entitled to

         elect the Special Director at the next annual meeting of stockholders

         of the Corporation, in addition to the directors to be elected by the

         holders of all shares of the Corporation entitled to vote for the

         election of directors, and the holders of all shares (including the

         Series A Preferred Stock) otherwise entitled to vote for directors,

         voting separately as a class, shall be entitled to elect the remaining

         members of the Board of Directors, provided that the Series A Preferred

         Stock and each Other Series of Preferred Stock, voting as a class,

         shall not have the right to elect more than one Special Director (in

         addition to any Special Director to which the holders of any Other

         Series of Preferred Stock are then entitled). Such special voting right

         of the holders of shares of Series A Preferred Stock may be exercised

         until all dividends in default on the Series A Preferred Stock shall

         have been paid in full or declared and funds sufficient therefor set

         aside, and when so paid or provided for, such special voting right of

         the holders of shares of Series A Preferred Stock shall cease, but

         subject always to the same provisions for the vesting of such special

         voting rights in the event of any such future dividend default or

         defaults.

 

                                       4

<PAGE>

                                  (ii) At any time after such special voting

         rights shall have so vested in the holders of shares of Series A

         Preferred Stock, the Secretary of the Corporation may, and upon the

         written request of the holders of record of 10% or more in number of

         the shares of Series A Preferred Stock and each Other Series of

         Preferred Stock then outstanding addressed to the Secretary at the

         principal executive office of the Corporation shall, call a special

         meeting of the holders of shares of Preferred Stock so entitled to

         vote, for the election of the Special Directors to be elected by them

         as herein provided, to be held within 60 days after such call and at

         the place and upon the notice provided by law and in the By laws for

         the holding of meetings of stockholders; provided, however, that the

         Secretary shall not be required to call such special meeting in the

         case of any such request received less than 90 days before the date

         fixed for any annual meeting of stockholders, and if in such case such

         special meeting is not called or held, the holders of shares of

         Preferred Stock so entitled to vote shall be entitled to exercise the

         special voting rights provided in this paragraph at such annual

         meeting. If any such special meeting required to be called as above

         provided shall not be called by the Secretary within 30 days after

         receipt of any such request, then the holders of record of 10% or more

         in number of the shares of Series A Preferred Stock and each Other

         Series of Preferred Stock then outstanding may designate in writing one

         of their number to call such meeting, and the person so designated may,

         at the expense of the Corporation, call such meeting to be held at the

         place and upon the notice given by such person, and for that sole

         purpose shall have access to the stock books of the Corporation. No

         such special meeting and no adjournment thereof shall be held on a date

         later than 60 days before the annual meeting of stockholders. If, at

         any meeting so called or at any annual meeting held while the holders

         of shares of Series A Preferred Stock have the special voting rights

         provided for in this paragraph, the holders of not less than 40% of the

         aggregate voting power of Series A Preferred Stock and each Other

         Series of Preferred Stock then outstanding are present in person or by

         proxy, which percentage shall be sufficient to constitute a quorum for

 

                                       5

<PAGE>

         the election of additional directors as herein provided, the then

         authorized number of directors of the Corporation shall be increased by

         the number of Special Directors to be elected, as of the time of such

         special meeting or the time of the first such annual meeting held while

         such holders have special voting rights and such quorum is present, and

         the holders of shares of Series A Preferred Stock and each Other Series

         of Preferred Stock, voting as a class, shall be entitled to elect the

         Special Director or Directors so provided for. If the directors of the

         Corporation are then divided into classes under provisions of the

         Restated Certificate of Incorporation of the Corporation or the Bylaws,

         the Special Director or Directors shall belong to each class of

         directors in which a vacancy is created as a result of such increase in

         the authorized number of directors. If the foregoing expansion of the

         size of the Board of Directors shall not be valid under applicable law,

         then the holders of shares of Series A Preferred Stock and of each

         Other Series of Preferred Stock, voting as a class, shall be entitled,

         at the meeting of stockholders at which they would otherwise have

         voted, to elect a Special Director or Directors to fill any then

         existing vacancies on the Board of Directors, and shall additionally be

         entitled, at such meeting and each subsequent meeting of stockholders

         at which directors are elected, to elect all of the directors then

         being elected until by such class vote the appropriate number of

         Special Directors has been so elected.

 

                                  (iii) Upon the election at such meeting by the

         holders of shares of Series A Preferred Stock and each Other Series of

         Preferred Stock, voting as a class, of the Special Director or

         Directors they are entitled so to elect, the persons so elected,

         together with such persons as may be directors or as may have been

         elected as directors by the holders of all shares (including Series A

         Preferred Stock) otherwise entitled to vote for directors, shall

         constitute the duly elected directors of the Corporation. Each Special

         Director so elected by holders of shares of Series A Preferred Stock

         and each Other Series of Preferred Stock, voting as a class, shall

         serve until the next annual meeting or until their respective

         successors shall be elected and qualified, or if any such Special

         Director is a member of a class of directors under provisions dividing

         the directors into classes, each such Special Director shall serve

         until the annual meeting at which the term of office of such Special

         Director's class shall expire or until such Special Director's

         successor shall be elected and shall qualify, and at each subsequent

         meeting of stockholders at which the directorship of any Special

 

                                       6

<PAGE>

 

         Director is up for election, said special class voting rights shall

         apply in the reelection of such Special Director or in the election of

         such Special Director's successor; provided, however, that whenever the

         holders of shares of Series A Preferred Stock and each Other Series of

         Preferred Stock shall be divested of the special rights to elect one or

         more Special Directors as above provided, the terms of office of all

         persons elected as Special Directors, or elected to fill any vacancies

         resulting from the death, resignation, or removal of Special Directors

         shall forthwith terminate (and the number of directors shall be reduced

         accordingly).

 

                                  (iv) If, at any time after a special meeting

         of stockholders or an annual meeting of stockholders at which the

         holders of shares of Series A Preferred Stock and each Other Series of

         Preferred Stock, voting as a class, have elected one or more Special

         Directors as provided above, and while the holders of shares of Series

         A Preferred Stock and each Other Series of Preferred Stock shall be

         entitled so to elect one or more Special Directors, the number of

         Special Directors who have been so elected (or who by reason of one or

         more resignations, deaths or removals have succeeded any Special

         Directors so elected) shall by reason of resignation, death or removal

         be reduced the vacancy in the Special Directors may be filled by any

         one or more remaining Special Director or Special Directors. In the

         event that such election shall not occur within 30 days after such

         vacancy arises, or in the event that there shall not be incumbent at

         least one Special Director, the Secretary of the Corporation may, and

         upon the written request of the holders of record of 10% or more in

         number of the shares of Series A Preferred Stock and each Other Series

         of Preferred Stock then outstanding addressed to the Secretary at the

         principal office of the Corporation shall, call a special meeting of

         the holders of shares of Series A Preferred Stock and each Other Series

         of Preferred Stock so entitled to vote, for an election to fill such

         vacancy or vacancies, to be held within 60 days after such call and at

         the place and upon the notice provided by law and in the Bylaws for the

         holding of meetings of stockholders; provided, however, that the

         Secretary shall not be required to call such special meeting in the

         case of any such request received less than 90 days before the date

         fixed for any annual meeting of stockholders, and if in such case such

         special meeting is not called, the holders of shares of Preferred Stock

         so entitled to vote shall be entitled to fill such vacancy or vacancies

         at such annual meeting. If any such special meeting required to be

         called as above provided shall not be called by the Secretary within 30

 

                                       7

<PAGE>

 

         days after receipt of any such request, then the holders of record of

         10% or more in number of the shares of Series A Preferred Stock and

         each Other Series of Preferred Stock then outstanding may designate in

         writing one of their number to call such meeting, and the person so

         designated may, at the expense of the Corporation, call such meeting to

         be held at the place and upon the notice above provided, and for that

         purpose shall have access to the stock books of the Corporation; no

         such special meeting and no adjournment thereof shall be held on a date

         later than 60 days before the annual meeting of stockholders.

 

                  (d) Nothing herein shall prevent the directors or stockholders

from taking any action to increase the number of authorized shares of Series A

Preferred Stock, or increasing the number of authorized shares of Preferred

Stock of the same class as the Series A Preferred Stock or the number of

authorized shares of Common Stock, or changing the par value of the Common Stock

or Preferred Stock, or issuing options, warrants or rights to any class of stock

of the Corporation as authorized by the Restated Certificate of Incorporation of

the Corporation, as it may hereafter be amended.

 

                  (e) Except as set forth herein, holders of shares of Series A

Preferred Stock shall have no special voting rights and their consent shall not

be required (except to the extent they are entitled to vote as set forth in the

Restated Certificate of Incorporation of the Corporation or herein or by law)

for taking any corporate action.

 

                  Section 4.  Certain Restrictions.

 

                  (a) Whenever any dividends or other distributions payable on

the Series A Preferred Stock as provided in Section 2 hereof are in arrears,

thereafter and until all accrued and unpaid dividends and distributions, whether

or not declared, on shares of Series A Preferred Stock outstanding shall have

been paid in full, the Corporation shall not, directly or indirectly:

 

                                  (i) declare or pay dividends on, or make any

         other distributions with respect to, any shares of stock ranking junior

         (either as to dividends or upon liquidation, dissolution or winding up)

         to the Series A Preferred Stock;

 

                                  (ii) declare or pay dividends on, or make any

         other distributions with respect to, any shares of stock ranking on a

         parity (either as to dividends or upon liquidation, dissolution or

         winding up) with the Series A Preferred Stock, except dividends paid

         ratably on shares of the Series A Preferred Stock and all such parity

         stock on which dividends are payable or in arrears in proportion to the

         total amounts to which the holders of all such shares are then

         entitled;

 

                                       8

<PAGE>

                                  (iii) redeem or purchase or otherwise acquire

         for consideration shares of any stock ranking junior (either as to

         dividends or upon liquidation, dissolution or winding up) with the

         Series A Preferred Stock, provided that the Corporation may at any time

         redeem, purchase or otherwise acquire shares of any such junior stock

         in exchange for shares of any stock of the Corporation ranking junior

         (either as to dividends or upon dissolution, liquidation or winding up)

         to the Series A Preferred Stock; or

 

                                  (iv) purchase or otherwise acquire for

         consideration any shares of Series A Preferred Stock, or any shares of

         stock ranking on a parity with the Series A Preferred Stock, except in

         accordance with a purchase offer made in writing or by publication (as

         determined by the Board of Directors) to all holders of such shares

         upon such terms as the Board of Directors, after consideration of the

         respective annual dividend rates and other relative rights and

         preferences of the respective series and classes, shall determine in

         good faith will result in fair and equitable treatment among the

         respective series or classes.

 

                  (b) The Corporation shall not permit any subsidiary of the

Corporation to purchase or otherwise acquire for consideration, directly or

indirectly, any shares of stock of the Corporation unless the Corporation could,

under paragraph (a) of this Section 4, purchase or otherwise acquire such shares

at such time and in such manner.

 

                  Section 5. Reacquired Shares. Any shares of Series A Preferred

Stock purchased or otherwise acquired by the Corporation in any manner

whatsoever shall be retired and cancelled promptly after the acquisition

thereof. All such shares shall upon their cancellation become authorized but

unissued shares of preferred stock, without designation as to series, and may be

reissued as part of any series of preferred stock created by resolution or

resolutions of the Board of Directors (including Series A Preferred Stock),

subject to the conditions and restrictions on issuance set forth herein.

 

                  Section 6.  Liquidation, Dissolution or Winding Up.  Upon any

liquidation, dissolution or winding up of the Corporation, no distribution shall

be made to:

 

                                       9

<PAGE>

 

                  (a) the holders of shares of stock ranking junior (either as

to dividends or upon liquidation, dissolution or winding up) to the Series A

Preferred Stock unless, prior thereto, the holders of shares of Series A

Preferred Stock shall have received the greater of (i) $1.00 per share ($.001

per one one-hundredth of a share), plus an amount equal to accrued and unpaid

dividends and distributions thereon, whether or not declared, to the date of

such payment, or (ii) an aggregate amount per share, subject to the provision

for adjustment hereinafter set forth, equal to 100 times the aggregate amount to

be distributed per share to holders of shares of Common Stock; or

 

                  (b) the holders of shares of stock ranking on a parity (either

as to dividends or upon liquidation, dissolution or winding up) with the Series

A Preferred Stock, except distributions made ratably on the Series A Preferred

Stock and all other such parity stock in proportion to the total amounts to

which the holders of all such shares are entitled upon such liquidation,

dissolution or winding up.

 

                  In the event that the Corporation shall at any time declare or

pay any dividend on Common Stock payable in shares of Common Stock, or effect a

subdivision or combination or consolidation of the outstanding shares of Common

Stock (by reclassification or otherwise) into a greater or lesser number of

shares of Common Stock, then and in each such event, the aggregate amount to

which the holder of each share of Series A Preferred Stock was entitled

immediately prior to such event under the proviso in clause (a) of the preceding

sentence shall be adjusted by multiplying such amount by a fraction, the

numerator of which is the number of shares of Common Stock outstanding

immediately after such event, and the denominator of which is the number of

shares of Common Stock that were outstanding immediately prior to such event.

 

                  Section 7. Consolidation, Merger, etc. In the event that the

Corporation shall enter into any consolidation, merger, combination or other

transaction in which the shares of Common Stock are exchanged for or changed

into other stock or securities, cash and/or any other property, or otherwise

changed, then and in each such event, the shares of Series A Preferred Stock

shall at the same time be similarly exchanged or changed in an amount per share

(subject to the provision for adjustment hereinafter set forth) equal to 100

times the aggregate amount of stock, securities, cash and/or any other property

(payable in kind), as the case may be, into which or for which each share of

Common Stock is changed or exchanged. In the event that the Corporation shall at

any time declare or pay any dividend on Common Stock payable in shares of Common

Stock, or effect a subdivision or combination or consolidation of the

outstanding shares of Common Stock (by reclassification or otherwise) into a

 

                                       10

<PAGE>

 

greater or lesser number of shares of Common Stock, then and in each such event,

the amount set forth in the preceding sentence with respect to the exchange or

change of shares of Series A Preferred Stock shall be adjusted by multiplying

such amount by a fraction, the numerator of which is the number of shares of

Common Stock outstanding immediately after such event, and the denominator of

which is the number of shares of Common Stock that were outstanding immediately

prior to such event.

 

                  Section 8. No Redemption. The shares of Series A Preferred

Stock shall not be redeemable. Notwithstanding the foregoing, the Corporation

may acquire shares of Series A Preferred Stock in any other manner permitted by

law, the Restated Certificate of Incorporation of the Corporation or herein.

 

                  Section 9. Rank. Unless otherwise provided in the Restated

Certificate of Incorporation of the Corporation or a Certificate of Designations

relating to a subsequent series of preferred stock of the Corporation, the

Series A Preferred Stock shall rank junior to all other series of the

Corporation's preferred stock as to the payment of dividends and the

distribution of assets on liquidation, dissolution or winding up, and senior to

the Common Stock of the Corporation.

 

                  Section 10. Amendment. The Restated Certificate of

Incorporation of the Corporation shall not be amended in any manner that would

materially and adversely alter or change the powers, preferences or special

rights of the Series A Preferred Stock without the affirmative vote of the

holders of at least two-thirds of the outstanding shares of Series A Preferred

Stock, voting together as a single series.

 

                  Section 11. Fractional Shares. Series A Preferred Stock may be

issued in fractions of a share (in one one-hundredths (1/100) of a share and

integral multiples thereof) that shall entitle the holder thereof, in proportion

to such holder's fractional shares, to exercise voting rights, receive

dividends, participate in distributions and have the benefit of all other rights

of holders of shares of Series A Preferred Stock.

 

                                       11

<PAGE>

 

                  IN WITNESS WHEREOF, we have executed and subscribed this

Certificate and do affirm the foregoing as true under the penalties of perjury

this 15th day of August, 1996.

 

                                          CHARLES W. DUDDLES

                                          -------------------

                                          Charles W. Duddles

                                          Executive Vice President and

                                          Chief Financial Officer

 

Attest:

WILLIAM E. RULON

----------------

William E. Rulon

Senior Vice President and Secretary

 

                                       12

<PAGE>

                                                                Exhibit 3.1

                                     RESTATED

                            CERTIFICATE OF INCORPORATION

                                        OF

                                  FOODMAKER, INC.

 

         Foodmaker, 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 Foodmaker, Inc. Foodmaker, Inc. was

originally incorporated under the name National Restaurant Systems, Inc., and

the original Certificate of Incorporation of the Corporation was filed with

the Secretary of State of the State of Delaware on July 28, 1971.

 

         2.  Pursuant to Sections 242 and 245 of the General Corporation Law of

the State of Delaware, this Restated Certificate of incorporation restates and

integrates and further amends the provisions of the Certificate of

Incorporation of this Corporation.

 

         3.  The text of the 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 OF CORPORATION

 

                The name of this Corporation is Foodmaker, Inc .

 

                                 ARTICLE II

 

                              REGISTERED OFFICE

 

         The address of the registered office of the corporation in the

State of Delaware is 1209 Orange Street, in the City of Wilmington, County

of New Castle, and the name of its registered agent at that address is The

Corporation Trust Company.

 

 

<PAGE>

                              ARTICLE III

 

                                 PURPOSE

 

         The purpose of the Corporation is to engage in any lawful act or

activity for which corporations may be organized under the General Corporation

Law of Delaware (the "GCL").

 

                              ARTICLE IV

 

                       AUTHORIZED CAPITAL STOCK

 

         A.  The total number of shares which the Corporation shall have

authority to issue is ninety million (90,000,000) shares, consisting of

seventy-five million (75,000,000) shares of Common Stock, par value of $.01 per

share (the "Common Stock"), and fifteen million (15,000,000) shares of

Preferred Stock, par value $.01 per share (the "Preferred Stock").

 

         B.  The Board of Directors is hereby authorized to issue the Preferred

Stock in one or more series, to fix the number of shares of any such series of

Preferred Stock, to determine the designation of any such series, and to fix

the powers, preferences and rights, and the qualifications, limitations or

restrictions of the Preferred Stock to the full extent permitted under the

GCL.

 

         C.  The authority of the Board of Directors shall include, without

limitation, the power to fix or alter the dividend rights, dividend rate,

conversion rights, voting rights, rights and terms of redemption (including

sinking fund provisions, if any), the redemption price or prices, and the

liquidation preferences of any wholly unissued series of Preferred Stock, and

the number of shares constituting any such unissued series and the designation

thereof, or any of them; and to increase or decrease the number of shares of any

series subsequent to the issue 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 so decreased, the shares constituting such decrease shall

resume the status which they had prior to the adoption of the resolution

originally fixing the number of shares of such series.

 

         The designation and the powers, preferences and rights, and the

qualifications, limitations or restrictions thereof of the initial series of

Preferred Stock are the following:

 

                                    2

 

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         (1) Designation and Number of Shares.  The distinctive designation of

such series of Preferred Stock is "Junior Preferred Stock" (the "Junior

Preferred Stock").  The number of shares of Junior Preferred Stock shall be

5,000,000.

 

         (2) Dividends.  The holders of shares of the Junior Preferred Stock

shall be entitled to receive, from and after the filing of this Restated

Certificate of Incorporation with the Secretary of State of the State of

Delaware, when, as and if declared by the Board of Directors of the Corporation

out of the funds of the Corporation legally available therefor, dividends at the

rate of nine dollars ($9) per year, payable only in the form of additional

shares of Junior Preferred Stock (valued at $100 per share) and not in cash.

Dividends shall be paid on a quarterly basis in arrears and will be cumulative

from the date of issue.

 

         Fractional shares of Junior Preferred Stock shall be issued to the

extent necessary to make such dividend payments.  Each fractional share of

Junior Preferred Stock outstanding shall be entitled to a ratably proportionate

amount of all dividends accruing with respect to each outstanding share of

the Junior Preferred Stock pursuant to this paragraph (2), and all of such

dividends with respect to such outstanding fractional shares shall be fully

cumulative and shall accrue (whether or not declared), and shall be payable

in the same manner and at such times as provided for in this paragraph (2)

with respect to dividends on each outstanding share of the Junior Preferred

Stock.

 

         (3) Priority With Respect to Dividends.  Shares of Junior Preferred

Stock shall have priority as to the payment of dividends with respect to the

Common Stock of the Corporation and other future series of Preferred Stock

ranking junior to the Junior Preferred Stock as to the payment of dividends.

No dividends may be paid on any junior series of Preferred Stock or on the

Common Stock (other than dividends payable in the Corporation's capital stock)

unless full cumulative dividends have been paid (or declared and shares

sufficient for the payment thereof set apart for such payment) on the Junior

Preferred Stock for all quarterly dividend periods terminating on or prior to

the date of payment in full of such dividends on the Common Stock and Junior

Preferred Stock.

 

         The Corporation may not redeem or purchase or otherwise acquire for

value shares of Common Stock or any other class of stock or series of Preferred

Stock thereof ranking junior to or a parity with the Junior Preferred Stock

as to dividends or upon liquidation (other than

 

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redemptions pursuant to employee stock subscription agreements between the

Corporation and certain officers and key employees of the Corporation or its

subsidiaries) unless, at the time of making such redemption, purchase or other

acquisition, the Corporation is not in default with respect to any dividends

payable on, or any obligation to redeem or retire, shares of the Junior

Preferred Stock.

 

         (4) Voting Rights.  The holders of the Junior Preferred Stock shall

not be entitled to vote, except as hereinafter provided in this paragraph (4)

or as otherwise provided by law.  On matters subject to a vote by holders of

the Junior Preferred Stock, the holders shall be entitled to one vote per share.

 

         (a) So long as shares of Junior Preferred Stock remain outstanding, the

Corporation shall not directly or indirectly or through merger or

consolidation with any other Corporation, without the affirmative vote at a

meeting (or the written consent with or without a meeting) of the holders of

at least a majority in number of shares of the Junior Preferred Stock then

outstanding, (i) create any class or classes of stock ranking equal or prior

to the Junior Preferred Stock, either as to dividends or upon liquidation, or

increase the number of authorized shares of any class or classes of stock

ranking equal or prior to the Junior Preferred Stock either as to dividends

or upon liquidation, (ii) amend, alter or repeal (whether by merger,

consolidation or otherwise and whether or not the Corporation is the

surviving corporation) any of the provisions of the Certificate of

Incorporation of the Corporation so as to affect adversely the preferences,

special rights or powers of the Junior Preferred Stock (iii) authorize any

reclassification of the Junior Preferred Stock.

 

         (b) In the event that six (6) or more quarterly dividends (whether or

not consecutive) payable on the Junior Preferred Stock are in arrears, the

number of directors of the Corporation shall automatically be increased by one

and the holders of all outstanding shares of Junior Preferred Stock, voting as

a separate class, shall be entitled to elect one director of the Corporation.

Such voting right shall remain vested until such time as all dividends in

arrears are paid (or declared and a sum sufficient for the payment thereof

set aside for payment).

 

         (i) Whenever such voting right shall have vested, such right may be

exercised initially either at a

 

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<PAGE>

special meeting of the holders of the Junior Preferred Stock, called as

hereinafter provided, or at any annual meeting of stockholders held for the

purpose of electing directors, and thereafter at such annual meetings or by

the written consent of the holders of the Junior Preferred Stock pursuant to

Section 228 of the GCL.  Such voting right shall continue until such time

as (x) all cumulative dividends accumulated on the Junior Preferred

Stock, together with additional dividends accrued thereon, if any, shall have

been paid in full, and (y) all mandatory redemption obligations with respect

to the Junior Preferred Stock which have matured have been met, at which time

such voting right of the holders of the Junior Preferred Stock shall

terminate, subject to revesting in the event of each and every subsequent

event of default of the character indicated above.

 

         (ii) At any time when such voting right shall have vested in the

holders of the Junior Preferred Stock, and if such right shall not already have

been initially exercised, a proper officer of the Corporation shall, upon the

written request of the holders of record of ten percent (10%) of the shares

of Junior Preferred Stock then outstanding, addressed to the Secretary of the

Corporation, call a special meeting of the holders of the Junior Preferred

Stock and of any other class or classes of stock having voting power with

respect thereto for the purpose of electing directors.  Such meeting shall be

held at the earliest practicable date upon the notice required for annual

meetings of stockholders at the place for holding annual meetings of

stockholders of the Corporation or, if none, at a place designated by the

Secretary of the Corporation.  If such meeting shall not be called by the

proper officers of the corporation within 30 days after the personal service

of such written request upon the Secretary of the Corporation, or within 30

days after mailing the same within the United States, by registered mail,

addressed to the Secretary of the Corporation at its principal office (such

mailing to be evidenced by the registry receipt issued by the postal

authorities), the holders of record of ten percent (10%) of the shares of the

Junior Preferred Stock then outstanding may designate in writing a holder of

Junior Preferred Stock to call such meeting at the expense of the

Corporation and such meeting may be called by such person so designated upon

the notice required for annual meetings of stockholders and shall be held at

the same place as is elsewhere provided in this sub-paragraph (ii).  Any

holder of Junior Preferred Stock entitled to vote at such meeting shall have

access to the stock books of the Corporation for the purpose of causing a

meeting of stockholders to be called pursuant to the provisions of this

sub-paragraph (ii).

 

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<PAGE>

Notwithstanding the provisions of this sub-paragraph (ii), however, no such

special meeting shall be called during a period within ninety (90) days

immediately preceding the date fixed for the next annual meeting of

stockholders.

 

         (iii) At any meeting held for the purpose of electing directors at

which the holders of Junior Preferred Stock shall have the right to elect a

director as provided herein, the presence in person or by proxy of the holders

of a majority of the then outstanding shares of Junior Preferred Stock shall be

required and be sufficient to constitute a quorum of such class for the

election of directors by such class.  At any such meeting or adjournment

thereof (x) the absence of a quorum of the holders of the Junior Preferred

Stock having such right shall not prevent the election of directors other

than those to be elected by the holders of Junior Preferred Stock and the

absence of a quorum or quorums of the holders of capital stock entitled to

elect such other directors shall not prevent the election of directors to be

elected by the holders of the Junior Preferred Stock entitled to elect such

directors and (y) in the absence of a quorum of the holders of any class of

stock entitled to vote for the election of directors, a majority of the

holders of such class present in person or by proxy shall have the power to

adjourn the meeting for the election of directors which the holders of such

class are entitled to elect, from time to time, without notice (except as

required by law) other than announcement at the meeting, until a quorum shall

be present.

 

         (iv) Any director elected by the holders of Junior Preferred Stock

pursuant to sub-paragraph (b) shall serve until the earlier of payment in full

of the dividend arrearage or the next annual meeting of stockholders, and may

be otherwise removed, with or without cause, only by the holders of at least a

majority of the shares of Junior Preferred Stock outstanding at the time of

such removal.

 

         (5) Liquidation Preference.  In the event of any voluntary or

involuntary liquidation, dissolution or winding up of the Corporation, the

holders of shares of Junior Preferred Stock (including shares issued as

dividends) will be entitled to receive $100 per share (or pro rata portion

thereof with respect to fractional shares) plus an amount equal to the cash

value of accrued and unpaid dividends to the date fixed for distribution before

any distribution of assets may be made to holders of Common Stock or of any

other class of stock of the corporation or series of Preferred Stock ranking

junior to the Junior Preferred Stock with respect to the

 

                                    6

 

<PAGE>

distribution of assets.  If upon any liquidation, dissolution or winding up of

the Corporation, the amounts payable with respect to the Junior Preferred

Stock and any other shares of capital stock of the Corporation ranking as to

any such distribution on a parity with the Junior Preferred Stock are not

paid in full, the holders of the Junior Preferred Stock and of such other

shares will share ratably in any such distribution of assets of the

Corporation in proportion to the full respective preferential amounts to

which they are entitled.  After payment of the full amount of the liquidating

distribution to which they are entitled, the holders of shares of Junior

Preferred Stock will not be entitled to any further participation in any

distribution of assets by the Corporation.  Such liquidation rights are not

triggered by any consolidation or merger of the Corporation with or into any

other corporation or by the sale, transfer or lease of all or substantially

all of the Corporation's assets, provided that the Corporation shall not

effect such transaction unless provision is made in the certificate of

incorporation of the resulting and surviving corporation or otherwise

for the protection of the rights of the holders of Junior Preferred Stock.

 

         (6) Optional Redemption.  The Junior Preferred Stock may be redeemed

at any time at the option of the Corporation, in whole or in part, upon not

less than thirty (30) nor more than sixty (60) days' prior notice at a

redemption price of $100 per share plus an amount equal to the cash value of

all accrued and unpaid dividends to the redemption date.  On and after the

redemption date, dividends shall cease to accumulate on shares of Junior

Preferred Stock called for redemption.

 

         (7) Mandatory Redemption.  The Corporation shall redeem all outstanding

shares of Junior Preferred Stock at a redemption price of $100 per share plus an

amount equal to the cash value of all accrued and unpaid dividends to the

redemption date upon or immediately prior to the occurrence of any of the

following: (i) the sale of all or substantially all of the Corporation's

assets to any person other than an affiliate of the Corporation; (ii) the

merger or consolidation of the Corporation with or into another corporation

or of another corporation with or into the Corporation with the effect that

the common stockholders of the Corporation immediately prior to such

transaction hold less than 50% of the total voting power entitled to vote

in election of directors, managers or trustees of the surviving corporation

of such merger; (iii) the liquidation or dissolution of the Corporation; or

(iv) the completion by the Corporation of one or more

 

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<PAGE>

public offerings of Common Stock for aggregate net proceeds of at least $75

million; provided, however, that no such redemption may be effected until the

earlier of May 15, 1998 and the date on which no 14-1/4% Senior Subordinated

Notes due 1998 of the Corporation remain outstanding.

 

         If, for any reason, the Corporation shall fail to discharge its

mandatory obligations pursuant to this paragraph (7), such mandatory redemption

obligations shall be discharged as soon as the Corporation is able to

discharge such obligations, but the redemption price shall be determined as

of the date such redemption should have occurred except with respect to the

calculation of the amount equal to accrued and unpaid dividends, which

calculation shall include all such dividends to the date of payment.  If and

so long as any mandatory redemption obligations with respect to the Junior

Preferred Stock shall not be fully discharged, the Corporation shall not

declare or pay any cash dividend or make any distributions in cash upon, or,

directly or indirectly, purchase, redeem or otherwise acquire, any capital

stock (including any warrants, rights or options exercisable for or

convertible into any capital stock of the Corporation, but not including the

Junior Preferred Stock) or permit any of its subsidiaries or affiliates to,

directly or indirectly, purchase or acquire any such capital stock.  Dividends

shall continue to accrue on a compounding basis on any mandatory redemption

obligation that has not been discharged by the Corporation pursuant to this

paragraph (7).

 

         (8) Selection of Securities to be Redeemed.  In the event that fewer

than all of the outstanding shares of Junior Preferred Stock are to be redeemed

at any time, number of shares to be redeemed shall be determined by Board of

Directors and the shares to be redeemed shall determined as follows: first,

all fractional shares of Junior Preferred Stock shall be redeemed, then the

Corporation shall select the remaining shares of Junior Preferred Stock to be

redeemed pro rata or by lot as may be determined by the Board of Directors.

 

         (9) Procedure for Redemption.

 

         (a) In the event the Corporation shall redeem shares of Junior

Preferred Stock at any time, notice of such redemption shall be given by first

class mail, postage prepaid, mailed not less than 30 days nor more than 60 days

prior to the redemption date, to each

 

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<PAGE>

holder of record of the shares to be redeemed at such holder's address as the

same appears on the stock register of the Corporation; provided, however,

that no failure to mail such notice nor any defect therein shall affect the

validity of the proceeding for the redemption of any shares of Junior

Preferred Stock to be redeemed except as to the holder to whom the

Corporation has failed to mail said notice or except as to the holder whose

notice was defective.  Each such notice shall state: (i) the redemption date;

(ii) the number of shares of Junior Preferred Stock to be redeemed and, if

fewer than all the shares held by such holder are to be redeemed from such

holder, the number of shares to be redeemed from such holder; (iii) the

redemption price; (iv) the place or places where certificates for such shares

are to be surrendered for payment of the redemption price, and (v) that

dividends on the shares to be redeemed will cease to accrue on such

redemption date unless the Corporation defaults in making such payment.

 

         (b) Notice having been mailed as aforesaid, from and after the

redemption date (unless the Corporation shall fail to provide money for the

payment of the redemption price of the shares called for redemption) dividends

on the shares of Junior Preferred Stock so called for redemption shall cease to

accrue, and said shares shall no longer be deemed to be outstanding, and all

rights o the holders thereof as stockholders of the Corporation (except the

right to receive from the Corporation the redemption price including an

amount equal to any accrued and unpaid dividends) shall cease.  Upon surrender

in accordance with said notice of the certificates for any shares so redeemed

(properly endorsed or assigned for transfer, if the Board of Directors of the

Corporation shall so require and the notice shall so state), such shares

shall be redeemed by the Corporation at the redemption price aforesaid.  In

case fewer than all the shares represented by any such certificate are

redeemed, a new certificate shall be issued representing the unredeemed

shares without cost to the holder thereof.

 

                                 ARTICLE V

 

                                 DIRECTORS

 

         The number of directors may hereafter be fixed from time to time

pursuant to procedures set forth in the Corporation's bylaws.

 

                                    9

 

<PAGE>

                               ARTICLE VI

 

                       BOARD POWER REGARDING BYLAWS

 

         In furtherance and not in limitation of the powers conferred by

statute, the Board of Directors is expressly authorized to make, repeal, alter,

amend and rescind the bylaws of the Corporation.

 

                               ARTICLE VII

 

                          ELECTION OF DIRECTORS

 

         Elections of directors at annual or special meetings need not be by

written ballot unless the bylaws of the Corporation shall so provide.

 

                               ARTICLE VIII

 

                      LIMITATION OF DIRECTOR LIABILITY

 

         To the fullest extent permitted by the GCL as the same exists or may

hereafter be amended, a director of the Corporation shall not be liable to

the Corporation or its stockholders for monetary damages for breach of

fiduciary duty as a director.  If the GCL is amended after the date of the

filing of this Restated Certificate of Incorporation 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 GCL, as so amended from time

to time.  No repeal or modification of this Article VIII by the stockholders

shall adversely affect any right or protection of a director of the

Corporation existing by virtue of this Article VIII at the time of such

repeal or modification.

 

                              ARTICLE IX

 

                      INDEMNIFICATION OF DIRECTORS

 

         The Corporation shall indemnify, in the manner and to the full extent

permitted by law, any person (or the estate of any person) who was or is a

party to, or is threatened to be made a party to any threatened, pending or

completed action, suit or proceeding, whether or not by or in the right of

the Corporation, and whether civil, criminal, administrative, investigative

or otherwise, by

 

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<PAGE>

reason of the fact that such person is or was a director officer, employee or

agent of the Corporation, or is or was serving at the request of the

Corporation as a director, officer, employee, agent or fiduciary of another

corporation, partnership, joint venture, trust or other enterprise.  The

Corporation may, to the full extent permitted by law, purchase and maintain

insurance on behalf of any such person against any liability which may be

asserted against him.  To the full extent permitted by law, the

indemnification provided herein shall include expenses (including attorneys'

fees), judgments, fines and amounts paid in settlement, and, in the manner

provided by law, any such expenses may be paid by the Corporation in advance

of the final disposition of such action, suit or proceeding upon receipt of

an undertaking by or on behalf of the person seeking indemnification to repay

such amounts if it is ultimately determined that he is not entitled to be

indemnified.  The indemnification provided herein shall not be deemed to limit

the right of the Corporation to indemnify any other person for any such

expenses to the full extent permitted by law, nor shall it be deemed

exclusive of any other rights to which any person seeking indemnification from

the Corporation may be entitled under any agreement, vote of stockholders or

disinterested directors or otherwise, both as to action in his official

capacity and as to action in another capacity while holding such office.

 

                                ARTICLE X

 

                           SECTION 203 ELECTION

 

         The Corporation expressly elects not to be governed by Section 203

of the General Corporation Law.

 

                               ARTICLE XI

 

                             CORPORATE POWER

 

         The Corporation reserves the right to amend, alter, change or repeal

any provision contained in this Restated Certificate of Incorporation, in the

manner now or hereafter prescribed by statute, and all rights conferred on

stockholders herein are granted subject to this reservation.

 

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<PAGE>

         IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been

signed under the seal of the Corporation this 6th day of March, 1992.

 

                                              FOODMAKER, INC.

 

 

                                              By: ROBERT L. SUTTIE

                                                  ----------------

                                                  Robert L. Suttie

                                                  Corporate Vice President

                                                  and Controller