1
Exhibit 3.1
STATE OF NEBRASKA
[GRAPHIC OF STATE FLAG OMITTED]
United States of America, ) Department of State
) ss. Lincoln, Nebraska
State of Nebraska )
I, Scott Moore, Secretary of State of the State of Nebraska do hereby
certify;
The attached is a true and correct copy of the Articles of Incorporation
as filed in this office on May 25, 1961, and all amendments thereto of
AMERISERVE FOOD DISTRIBUTION, INC.
with its registered office located in OMAHA, Nebraska.
I further certify that said corporation is in good standing as of this
date.
In Testimony Whereof, I have hereunto set my hand and affixed the
Great Seal of the State of Nebraska on July
I in the year of our Lord, one thousand nine
hundred and ninety-seven.
[SEAL OF THE STATE OF NEBRASKA] /s/ Scott Moore
----------------------------
SECRETARY OF STATE
2
Articles of Incorporation
of
Nebraska Concession Supply, Inc.
Lincoln
Filing 10.00
Recording 2.50
perpetual
R.A. William I. Aitken, Philip M. Aitken, Richard W. Smith, Room 402, 1241 N
St., Lincoln, Nebr.
Mail: Room 402, 1241 N St.,
Lincoln, Nebr.
STATE OF NEBRASKA )
) SS.
SECRETARY'S OFFICE )
MAY 25 1961
Received and filed for record
and recorded in book 300
Misc Inc at page 526
/s/ Frank Marsh
- --------------------
Secretary of State
By /s/ L. B. Weyers
-----------------
INDEXED
PHOTO-COPIED
RECORDED
3
ARTICLES OF INCORPORATION
OF
NEBRASKA CONCESSION SUPPLY, INC.
FIRST: The name of the corporation is NEBRASKA CONCESSION SUPPLY,
INC.
SECOND: Its principal office in the State of Nebraska is located at
Room 402, 1241 N Street, in the City of Lincoln, County of Lancaster. The names
of its resident agents are WILLIAM I. AITKEN, PHILIP M. AITKEN, and RICHARD W.
SMITH, and their address is Room 402, 1241 N. Street, CITY OF LINCOLN, COUNTY OF
LANCASTER, NEBRASKA.
THIRD: The nature of the business or objects or purposes to be
transacted, promoted or carried on are:
To manufacture, deal in, buy and sell candies, popcorn, gum,
confections of any nature and description, non-intoxicating beverages, toys,
novelties, and all kinds of personal property, either at retail or wholesale, or
both; also to own, operate or manage theatres, whether motion picture,
television or otherwise; also to own, operate or lease vending concessions of
any kind and description; also to act as manufacturers' or other's agents in the
buying, selling and dealing in all of said articles and products; and to do all
things expedient in doing any of the foregoing; to purchase or acquire and sell,
own and hold unlimitedly such real and personal property of every kind and
description within and without the State of Nebraska, and in any part of the
world, suitable, necessary, useful or advisable in connection with any and all
the objects hereinbefore set forth; and to convey, sell, assign, transfer,
lease, mortgage,
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pledge, exchange or otherwise dispose of any of such property.
To manufacture, purchase, or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer, or otherwise dispose of, trade,
deal in and deal with goods, wares and merchandise and personal property of
every class and description.
To acquire, and pay for in cash, stock or bonds of this corporation
or otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, mortgage or otherwise dispose of letters patent of the United States
or any foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trade-marks and trade names, relating to
or useful in connection with any business of this corporation.
To guarantee, purchase, hold, sell, assign, transfer, mortgage,
pledge or otherwise dispose of, shares of the capital stock of, or any bonds,
securities or evidences or indebtedness created by any other corporation or
corporations organized under the laws or this state or any other state, country,
nation or government, and while the owner thereof to exercise all the rights,
powers and privileges of ownership, including the right to vote thereon.
To enter into, make and perform contracts of every kind and
description with any person, firm, association, corporation, municipality,
county, state body politic or government or colony or dependency thereof.
To borrow or raise moneys for any of the purposes of the corporation
and, from time to time, without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds,
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debentures and other negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the interest
thereon by mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the corporation, whether at the time owned
or thereafter acquired and to sell, pledge or otherwise dispose of such bonds or
other obligations of the corporation for its corporate purposes.
To buy, sell or otherwise deal in notes, open accounts, and other
similar evidences of debt, and to loan money and take notes, open accounts, and
other similar evidences of debt as collateral security therefor.
To purchase, hold, sell and transfer the shares of its own capital
stock; provided it 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 as otherwise permitted by law, and provided further that shares
of its own capital stock belonging to it shall not be voted upon directly or
indirectly.
To have one or more offices, to carry on all or any of its
operations and business and without restriction or limit as to amount to
purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise
dispose of real and personal property of every class and description in any of
the States, Districts, Territories or Colonies of the United States, and in any
and all foreign countries, subject to the laws of such State, District,
Territory, Colony or Country.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the
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powers conferred by the laws of Nebraska upon corporations formed under the act
hereinafter referred to, and to do any or all of the things hereinbefore set
forth to the same extent as natural persons might or could do.
The objects and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in these articles
of incorporation, but the objects and purposes specified in each of the
foregoing clauses of this article shall be regarded as independent objects and
purposes.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is one hundred (100) shares of the par value of
One Hundred Dollars ($100) each, amounting in the aggregate to Ten Thousand
Dollars ($l0,000).
FIFTH: The minimum amount of capital with which the corporation
shall commence business is Five Hundred Dollars ($500).
SIXTH: The names and places of residence of the incorporators are as
follows:
Names Residences
----- ----------
Joseph I. Swietlik 208 E. Wisconsin Ave., Milwaukee, Wis.
Albert C. Zimmermann 208 E. Wisconsin Ave., Milwaukee, Wis.
Kathleen Riordan 208 E. Wisconsin Ave., Milwaukee, Wis.
SEVENTH: The corporation is to have perpetual existence.
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EIGHTH: The private property of the stock orders shall not be
subject to the payment of corporate debts to any extent whatever.
NINTH: In furtherance, and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation, except as hereinafter provided.
To set apart out of any of the funds of the corporation available
for dividends a reserve or reserves for any proper purpose or to abolish any
such reserve in the manner in which it was created.
By resolution or resolutions, passed by a majority of the whole
board, to designate one or more committees, each committee to consist of two or
more of the directors of the corporation, which, to the extent provided in said
resolution or resolutions or in the by-laws of the corporation, shall have and
may exercise the powers of the board of directors in the management of the
business and affairs of the corporation, and may have power to authorize the
seal of the corporation to be affixed to allpapers which may require it. Such
committee or committees shall have such name or names as may be stated in the
by-laws of the corporation or as may be determined from time to time by
resolution adopted by the board of directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding given at a stockholders' meeting
duly called for that purpose, or
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when authorized by the written consent of the holders of a majority of the stock
issued and outstanding, to mortgage, sell, Lease or exchange all of the property
and assets of the corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such consideration, which may
be in whole or in part shares of stock in, and/or other securities of, any other
corporation or corporations, as its board of directors shall deem expedient and
for the best interests of the corporation.
TENTH: Meetings of stockholders and directors may be held outside
the State of Nebraska and an office or offices of the corporation may be
established and maintained outside the State of Nebraska, if the by-laws so
provide. The books of the corporation may be kept (subject to any provision
contained in the statutes) outside of the State of Nebraska at such place or
places as may be from time to time designated by the board of directors.
ELEVENTH: The corporation reserves the right to amend, alter, change
or repeal any provision contained in these articles of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named for the purpose of forming a corporation in pursuance of the General
Corporation Law of the State of Nebraska, do execute these articles, hereby
declaring and certifying that the facts herein stated are true, and
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accordingly have hereunto set our hands and seals this 22nd day of May, 1961.
/s/ Joseph I. Swietlik (SEAL)
------------------------
Joseph I. Swietlik
/s/ Albert C. Zimmermann (SEAL)
------------------------
Albert C. Zimmermann
/s/ Kathleen Riordan (SEAL)
------------------------
Kathleen Riordan
STATE OF WISCONSIN )
( ss.
MILWAUKEE COUNTY )
BE IT REMEMBERED, That on this 22nd day of May, 1961, personally
came before me, a Notary Public in and for the County and State aforesaid, all
of the parties to the foregoing articles of incorporation, known to me
personally to be such, and severally acknowledged the said articles to be the
act and deed of the signers respectively and that the facts therein stated are
truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Mildred R. Schmidt
---------------------------
Mildred R. Schmidt
Notary Public, Milwaukee County, Wis.
My commission expires: Sept. 6, 1964
(NOTARIAL SEAL)
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PROOF OF PUBLICATION
AFFIDAVIT
State of Nebraska, Lancaster County, ss:
Robert L. Gant, being duly sworn, deposes and says that he is an editor
and manager of The Daily Reporter, a legal daily newspaper printed, published
and of general circulation in the County of Lancaster and State of Nebraska, and
that the attached printed notice was published in the said newspaper once each
week 3 successive weeks, the first insertion having been on the 1 day of June A.
D., 1961, and thereafter on June 8 and 15 1961, and that said newspaper is a
legal newspaper under the statutes of the State of Nebraska. The above facts are
within my personal knowledge.
/s/ Robert L. Gant
--------------------------------------
Subscribed in my presence and sworn to
before me June 25, 1961
/s/ [ILLEGIBLE]
--------------------------------------
Notary Public
filed 6/17/61
Printer's Fee $14.70
[COPY OF NEWSPAPER NOTICE]
Lafkin, Jacobson & Swietlik
Attorneys
Bankers Bldg., Milwawkee 2, Wis.
NEBRASKA CONCESSION
SUPPLY, INC.
NOTICE OF INCORPORATION
The undersigned, having associated themselves together for the purpose of
forming a corporation pursuant to the general corporation law of the State of
Nebraska, hereby give notice that (1) the name of the corporation is NEBRASKA
CONCESSION SUPPLY, INC., (2) its principal place of business is in the City of
Lincoln, Nebraska, (3) the general nature of the business to be transacted is to
manufacture, deal in, buy and sell candy, popcorn, gum, confections of any
nature and description, nonintoxicating beverages, toys, novelties, and all
kinds of personal property, either at retail or wholesale, etc., (4) the amount
of capital stock authorized is $10,000.00 of which at least $200.00 shall be
subscribed and fully paid in before the corporation shall commence business and
subscription for the balance of said stock may be made and the same shall be
issued upon payment of the par value thereof, at such times and upon such
conditions as ordered by the board of directors, (5) the times of the
commencement of the corporation is May 25, 1961, and the corporation shall have
perpetual existence, and, (6) the affairs of the corporation shall be conducted
by a board of at least three directors and a president, a secretary and a
treasurer, and such other officers as may be appointed.
Joseph I. Swietlik
Albert Zimmermann
Kathleen Riordan
June 15 (Thurs) June 1-8-15
11
Certificate of Revival
of
Nebraska Concession Supply, Inc.
Lincoln
now:
Omaha
Filing 5.00
Recording 1.00
perpetual
R.A.
Gerald Toohey
1120 Capitol Ave.
Omaha
Receipt No. C14898
STATE OF NEBRASKA ) SS JAN 8 1973
SECRETARY'S OFFICE )
Received and filed for record
and recorded [ILLEGIBLE] No. 61
[ILLEGIBLE] at page 684
Allen J. Beermann
- ------------------
Secretary of State
By D.B. Weyers
INDEXED
MICROFILMED
RECORDED
12
To:
ALLEN J. BEERMANN
Secretary of State
State Capitol Building
Lincoln, Nebraska 68509
CERTIFICATE OF REVIVAL
KNOW ALL MEN BY THESE PRESENTS:
Now comes Gerald Toohey and J. Sorg, who on
--------------------- ---------------------------------------
name of PRESIDENT name of SECRETARY OR TREASURER
and at the filing hereof
March 1, 1972, were the duly elected, qualified and are
- ----------------------------------------
acting President and Secretary of
------------------------------- ------------------------------------
MUST BE PRESIDENT MUST BE SECRETARY OR TREASURER
Nebraska Concession Supply, Inc., located at
- ----------------------------------------------------------------------
name of corporation
1102 Capitol Avenue, Omaha, Nebraska a corporation duly organized under
- ---------------------------
city
and by virtue of the laws of the State of Nebraska, and for the purposes of
reviving or renewing said corporation does hereby certify, state and affirm.
1. That the existence of this corporation became inoperative on August 3,
1971, because of dissolution by the Secretary of State for non-payment of taxes.
2. That this corporation was duly and regularly organized under the laws
of the State of Nebraska.
3. That the name of this corporation is Nebraska Concession Supply, Inc.
- --------------------------------------------------------------------------------
(must be the correct corporate name)
4. The street address of the registered office is:
1120 Capitol Avenue, Omaha, Douglas, Nebraska,
- --------------------------------------------------------------------------------
Street address city county
and the name of the registered agent at such address is Gerald Toohey.
(THE ADDRESS OF THE REGISTERED AGENT AND REGISTERED OFFICE MUST BE IDENTICAL.)
5. That the time for which this revival or renewal shall extend shall be
perpetual dating from 19
- ------------------------ ----------------------- ----------------
perpetual or otherwise RENEWAL ONLY
unless sooner dissolved by due process of law.
Signed /s/ Gerald Toohey
----------------------------------
PRESIDENT Gerald Toohey
Signed /s/ J. Sorg
---------------------------------
SECRETARY OR TREASURER J. Sorg
================================================================================
INSTRUCTIONS:
Submit to the Secretary of State's office in DUPLICATE. Every item must be
completed. This document must be signed by two officers of the corporation.
Filing fees:
Domestic corporation $7.00
Nonprofit corporation $3.0O
THE LAW REQUIRES THAT THESE DOCUMENTS MUST BE SIGNED BY THE PRESIDENT AND
SECRETARY OR TREASURER.
13
change of R.O.
of
Nebraska Concession Supply, Inc.
Omaha
filing 5.00
recording 2.00
R.A.
Gerald Toohey
4808 G St.
Omaha, NE 68117
Receipt No. C-86561
STATE OF NEBRASKA ) SS APR 13 1977
SECRETARY'S OFFICE )
Received and filed for record
and recorded on roll No. 77-6
[ILLEGIBLE] at page 1108
Allen J. Beermann
- ------------------
Secretary of State
By [ILLEGIBLE]
---------------------
INDEXED
MICROFILMED
RECORDED
14
Form 3-76
DOMESTIC
CHANGE OF REGISTERED AGENT AND/OR REGISTERED OFFICE
(Submit in Duplicate)
TO: ALLEN J. BEERMANN, Secretary of State, Lincoln, Nebraska 68509
The following corporation, pursuant to the laws of the State of Nebraska, does
hereby wish to change its Registered Agent and/or Registered Office in the State
of Nebraska.
Nebraska Concession Supply, Inc.
- --------------------------------------------------------------------------------
Name of Corporation
================================================================================
Before Change:
Registered Agent: Gerald Toohey
Registered Office: 1120 Capitol Ave. Omaha, Douglas Nebraska 68102
--------------------------------- -----
Street Address City County Zip Code
The following change of registered office, registered agent, or both, were
authorized by a resolution duly adopted by the board of directors on the 11 day
of April 1977
The registered office of this corporation in Nebraska shall be 4808 "G" Street
------------------
Street Address
Omaha Douglas Nebraska 68117 and their registered agent
- ------------------------------
City County Zip Code
at such address shall be Gerald Toohey
-------------------------------------------------------
Name of Registered Agent
*Address shall be complete, using full street address. A box number is
acceptable only in those cases where street addresses are not available.
Such statement shall be executed by the corporation by its president or a vice
president:
Dated: April 11, 1977 President: /s/ Gerald Toohey
-----------------------------
or
Vice President:
================================================================================
If the Secretary of State finds that such
statement conforms to the provisions of sections
21-2001 to 21-20,144, he shall file such statement
in his office. The duplicate statement, bearing
the date of filing in the office of the Secretary
of State shall be recorded in the office of the
county clerk of the county where the registered
office of the corporation is located in Nebraska.
If the statement changes the location of the
registered office to another county, the statement
bearing the date of the filing in the office of
the Secretary of State shall be filed in both
counties.
Filing Fee: $7.00
15
ARTICLES OF AMENDMENT
OF
NEBRASKA CONCESSION SUPPLY, INC.
Omaha
Filing 5.00
Recording 6.00
Increase 10.00
Receipt No. C-26971
STATE OF NEBRASKA ) SS
SECRETARY'S OFFICE )
Received and filed for record NOV 26 1979
and recorded on film roll No. 79-33
[ILLEGIBLE] at page 484
/s/ Allen J. Beermann
- -----------------------
Secretary of State
By /s/ [ILLEGIBLE]
---------------------
INDEXED
MICROFILMED
RECORDED
16
ARTICLES OF AMENDMENT
OF
NEBRASKA CONCESSION SUPPLY, INC.
Nebraska Concession Supply, Inc., a Nebraska corporation, hereby adopts
the following Articles of Amendment to its Articles of Incorporation:
1. The name of the corporation is Nebraska Concession Supply, Inc.
2. Nebraska Concession Supply, Inc., hereby amends Article FOURTH of its
Articles of Incorporation to read as follows in its entirety:
"FOURTH: The aggregate number of shares
which the corporation shall have
authority to issue is 100 shares of
common stock and 100 shares of preferred
stock. Each share of common stock shall
have a par value of One Hundred Dollars
($100.00) and shall be designated common
stock. Each share of preferred stock
shall have a par value of One Hundred
Dollars ($100.00) and shall be
designated the Series I preferred stock
and shall have the following preferences
and rights with the limitations and
restrictions as follows:
A. REDEMPTION. The corporation may by
majority vote of its Board of Directors,
from time to time, redeem any or all
outstanding shares of its SERIES I
PREFERRED stock at the par value
thereof.
17
B. DIVIDENDS. The corporation shall not
pay any dividends on its common stock in
any calendar year unless its has first
authorized a dividend of at least Six
Dollars ($6.00) per share with respect
to its SERIES I PREFERRED stock. This
dividend preference shall be
non-cumulative.
C. LIQUIDATION. Each share of SERIES I
PREFERRED stock shall be entitled to a
liquidation preference, upon voluntary
or involuntary liquidation of the
corporation, equal to its par value plus
any declared but unpaid dividends.
D. VOTING. The holders of the SERIES I
PREFERRED shares shall have no voting
rights.
E. CONVERSION. The SERIES I PREFERRED
shares are not convertible into common
shares.
3. The shareholders of Nebraska Concession Supply, Inc. adopted the above
amendment on the 28th day of September, 1979.
4 . A consent to the amendment has been given in writing by all of the
directors and by the holders of all of the shares entitled to vote on such
amendment.
These Articles of Amendment are executed by Nebraska Concession Supply,
Inc., by its president (or vice-president) and by its secretary (or an assistant
secretary) effective the 29th day of September, 1979.
NEBRASKA CONCESSION SUPPLY, INC.
By /s/ Gerald Toohey
--------------------------
President
18
NEBRASKA CONCESSION SUPPLY, INC.
By /s/ H Schartow
---------------------
Secretary
19
[ILLEGIBLE NEWSPAPER NOTICE]
5-25-61
RECEIVED
DEC 26 1979
SECRETARY OF STATE
CORPORATION DIVISION
THE DAILY RECORD
OF OMAHA
A. H. HENNINGSEN, Publisher
PROOF OF PUBLICATION
UNITED STATES OF AMERICA )
THE STATE OF NEBRASKA )
DISTRICT OF NEBRASKA ) SS.
COUNTY OF DOUGLAS )
CITY OF OMAHA )
JOHN P. EGLSAER
- --------------------------------------------------------------------------------
being duly sworn, deposes and says that he is
ADVERTISING MANAGER
- --------------------------------------------------------------------------------
of THE DAILY RECORD, of Omaha, a legal newspaper, printed and published daily in
the English language, having a bona fide paid circulation in Douglas County in
excess of 300 copies, printed in Omaha, in said County of Douglas, for more than
fifty-two weeks last past: that the printed notice hereto attached was published
in THE DAILY RECORD,
of Omaha, for 3 consecutive weeks, or the same day of each week, beginning on
November 30, 1979
and ending on December 21, 1979
That said Newspaper during that time was regularly published and in general
circulation in the County of Douglas, and State of Nebraska.
[ILLEGIBLE SEAL] /s/ John P. Eglsaer
----------------------------------------
Subscribed in my presence and sworn to
before me this 21st day of
December 1979
/s/ [ILLEGIBLE]
----------------------------------------
Notary Public in and for Douglas County,
State of Nebraska
20
APR 2 1984
Receipt No. 12455
STATE OF NEBRASKA )
) SS
SECRETARY'S OFFICE )
Filed and recorded on film roll
84-16 page 648
/s/ Allen J. Beermann
-------------------------------
Secretary of State
By /s/ LM
--------------------------------
$28 pd.
ARTICLES OF AMENDMENT
(BY WRITTEN CONSENT)
TO THE
ARTICLES OF INCORPORATION
OF
NEBRASKA CONCESSION SUPPLY, INC.
- --------------------------------------------------------------------------------
Pursuant to the provision of the Nebraska Business Corporation Act,
the undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Nebraska Concession Supply,
Inc.
SECOND: The amendment of the Articles of Incorporation duly adopted
by the shareholders of the corporation is to change ARTICLE FIRST thereof so
that, as amended, said ARTICLE shall be read as follows:
"NEBCO Distribution of Omaha, Inc."
THIRD: The date of the adoption of the amendment by the sole
shareholder was March 15, 1984.
FOURTH: Consent in writing has been given by all of the directors
and by the holders of all of the shares entitled to vote on such amendment.
IN WITNESS WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be executed in its name by its President and Assistant
Secretary, this 15th day of March, 1984.
NEBRASKA CONCESSION SUPPLY, INC.
--------------------------------
(Name of Corporation)
By /s/ Raymond L. Marshall
-----------------------------
Raymond Marshall, President
and /s/ Helen Schartow
----------------------------
Helen Schartow, Assistant Secretary
21
AFFIDAVIT OF PUBLICATION
State of Nebraska )
) SS.
LANCASTER COUNTY, )
[ILLEGIBLE NEWSPAPER NOTICE]
RECEIVED
MAY 4 1984
SECRETARY OF STATE
CORPORATION DIVISION
The undersigned, being first duly sworn, deposes and says that she/he is a Clerk
of The Lincoln Star and Lincoln Journal, legal newspapers printed, published and
having a general circulation in the County of Lancaster and State of Nebraska,
and that the attached printed notice was published in said newspaper three
successive times the first insertion having been on the 19 day of April A.D.
1984, and thereafter on April 26, May 3, 1984, and that said newspapers are
legal newspapers under the statutes of the State of Nebraska. The above facts
are within my personal knowledge and are further verified by my personal
inspection of each notice in each of said issues.
/s/ Jean Fager
------------------------------
Subscribed in my presence and sworn to before me this 3 day of May, 1984.
/s/ G.L. Powell Notary Public
---------------
Printer's Fee, $______
---------------------
G.L. POWELL
GENERAL NOTARIAL
SEAL
STATE OF NEBRASKA
Commission Expires
Oct. 7, 1986
---------------------
84-19
22
STATEMENT OF CANCELLATION OF REACQUIRED SHARES
(Prepare in Duplicate)
Except from Nebraska Business Corporation Act:
Sec. 21-2063 RRS Nebr. 1943. Reissue 1 [Illegible] 4: SHARES; REACQUIRED;
CANCELLATION STATEMENT; FILING. (1) A corporation may at any time by resolution
of its board of directors, cancel all or any part of the shares of the
corporation of any class reacquired by it, other than redeemable shares redeemed
or purchased and in such event a statement of cancellation shall be filed and
recorded as provided in this section.
(a) NEBCO Distribution of Omaha, Inc.
---------------------------------------
Name of the Corporation
(b) The number of reacquired shares canceled by resolution duly adopted by the
board of directors itemized by classes and series, and the date of its
adoption:
Required shares Class and Series Date
54 Common -$100 par 10/12/87
--------------- ------------------------------ ---------
100 Series I Preferred -$100 par 10/12/87
--------------- ------------------------------ ---------
(c) The aggregate number of issued shares, itemized by classes and series,
after giving effect to such cancellation:
Required shares Class and Series Date
46 Common -$100 par 10/12/87
--------------- ------------------------------ ---------
NONE Series I Preferred -$100 par 10/12/87
--------------- ------------------------------ ---------
(d) The amount, expressed in dollars, of the stated capital of the
corporation after giving effect to such cancellation: $ 4,600.00
----------
The statement of cancellation shall be executed by the corporation by its
president or vice president and by its secretary or an assistant secretary,
signatures of two officers required:
Date: October 12, 1987 1) /s/ Raymond Marshall
-------------------------
President
2) /s/ Gerald Toohey
-------------------------
Secretary
- --------------------------------------------------------------------------------
Duties of the Office of the Secretary of State
(2) The original and duplicate copy of such statement of cancellation shall be
delivered to the Secretary of State, who shall, when all fees provided by
law shall have been paid:
(a) File the original in his office; and
(b) Return to the corporation or its representative the duplicate copy
stamped with the date of filing in the office of Secretary of State.
- --------------------------------------------------------------------------------
Duties of the Officers of the Corporation Filing Statement
The duplicate copy of such statement of cancellation bearing the date of filing
in the office of the Secretary of State shall be recorded in the office of the
county clerk of the county where the registered office of the corporation is
located in this state.
- --------------------------------------------------------------------------------
Upon filing and recording in the office of the Secretary of State of such
statement of cancellation, the stated capital of the corporation shall be deemed
to be reduced by that part of the stated capital which was, at the time of such
cancellation, represented by the shares so canceled, and the shares so canceled
shall be restored to the status of authorized but unissued shares.
Nothing contained in this section shall be construed to forbid a cancellation of
shares or a reduction of stated capital in any other manner permitted by
sections 21-2001 to 21-20,134.
OCT 26 1987
78766
STATE OF NEBRASKA )
)ss
SECRETARY'S OFFICE )
Received and filed for
record ___ and recorded on
film roll No. 87-32 at page 1072
/s/ Allen J. Beermann
- ----------------------
Secretary of State
By /s/ BS Pd. $18.00
------------------
23
ARTICLES OF AMENDMENT OF ARTICLES OF INCORPORATION
NEBCO DISTRIBUTION OF OMAHA, INC.
NEBCO Distribution of Omaha, Inc., a Nebraska corporation, hereby adopts
the following Articles of Amendment to its Articles of Incorporation:
1. The name of the Corporation is: NEBCO Distribution of Omaha, Inc.
2. NEBCO Distribution of Omaha, Inc. hereby amends Article FOURTH of its
Articles of Incorporation to read as follows in its entirety:
FOURTH: The aggregate number of shares which the Corporation shall
have authority to issue is 640 shares of common stock and each such
share of common stock shall have a par value of $10.00 per share.
3. The Amendment was adopted by the Shareholder on December 5, 1988.
4. The number of shares outstanding as of the adoption of the Amendment
was 46 shares of common stock having a par value of $100.00 per share and each
of said shares was entitled to vote thereon.
5. The holder of 46 shares voted for such Amendment and no holder of any
shares voted against such Amendment.
6. Upon adoption of the Amendment, the holder of 46 shares of the
Corporation's $100.00 par value stock shall be entitled to a certificate for 460
shares of the common stock of the
DEC 10 1988
STATE OF NEBRASKA )
)ss
SECRETARY'S OFFICE )
Received and filed for
record ___ and recorded on
film roll No. 88-43 at page 401
/s/ Allen J. Beermann
- ----------------------
Secretary of State
By /s/ [Illegible] $18.00
-----------------------
1822
24
Corporation, par value $10.00 per share, upon presentation for cancellation of
the holder's certificate representing 46 shares of the Corporation's common
stock, par value $100.00.
7. Upon adoption of said Amendment, the amount of the stated capital of
the Corporation shall remain $4,600.00.
8. A written Consent in writing has been given in lieu of a Board of
Directors' meeting and meeting of the holders of all of the shares entitled to
vote on said Amendment.
These Articles of Amendment have been executed by and on behalf of the
Corporation by its President and Secretary on this 5th day of December, 1988.
NEBCO DISTRIBUTION OF OMAHA, INC.
By /s/ Raymond Marshall
--------------------------------
Raymond Marshall, President
ATTEST:
/s/ Pete Hoefer
- ----------------------------
Pete Hoefer, Secretary
25
ARTICLES OF AMENDMENT OF ARTICLES OF INCORPORATION
NEBCO DISTRIBUTION OF OMAHA
The undersigned president and secretary hereby adopt the following
Articles of Amendment pursuant to the provisions of the Nebraska Business
Corporation Act:
FIRST: The name of the Corporation is: NEBCO Distribution of Omaha, Inc.
SECOND: The amendment of the Articles of Incorporation duly adopted by the
shareholders of the Corporation is to change ARTICLE FIRST thereof so that, as
amended, said ARTICLE shall be and read as follows:
FIRST: The name of the Corporation is NEBCO
EVANS Distribution, Inc.
THIRD: The date of the adoption of the Amendment by the shareholders was
February 6, 1990.
FOURTH: Consent in writing has been by all of the directors and by the
holders of all of the shares entitled to vote on said Amendment.
IN WITNESS WHEREOF, the undersigned Corporation has caused these Articles
of Amendment to be executed in its name by its President and Secretary on this
8th day of February, 1990.
NEBCO DISTRIBUTION OF OMAHA, INC.
By /s/ Raymond Marshall
--------------------------------
Raymond Marshall, President
ATTEST:
/s/ Pete Hoefer
- ----------------------------
Pete Hoefer, Secretary
FEB 8 1990
STATE OF NEBRASKA )
)ss
SECRETARY'S OFFICE )
Received and filed for
record ___ and recorded on
film roll No. [Illegible] at page [Illegible]
/s/ Allen J. Beermann
- ----------------------
Secretary of State
By /s/ [Illegible]Pd. $18.00
------------------------
23713
26
DOMESTIC
CHANCE OF REGISTERED AGENT AND/OR REGISTERED OFFICE
(Submit in Duplicate)
TO: ALLEN J. BEERMANN, Secretary of State, Lincoln, Nebraska 68509
The following corporation. pursuant to the laws of the State of Nebraska, does
hereby wish to change its Registered Agent and/or Registered Office in the State
of Nebraska.
NEBCO Distribution of Omaha, Inc.
---------------------------------
Name of Corporation
- --------------------------------------------------------------------------------
Before Change:
Registered Agent: Gerald Toohey
------------------------------------------------------------
Registered Office: 4808 "G" Street, Omaha Douglas Nebraska 68117
------------------------------------------------------------
Street address City County zip Code
The following change of registered office, registered agent, or both, were
authorized by a resolution duly adopted by the board of directors on the
1st day of February 1990
- ------------------------
The registered office of this corporation in Nebraska shall be
6905 North 97th Circle,
- ------------------------
Street Address
Omaha Douglas Nebraska 68122 and the registered agent
- --------------------------------------------------------------------------------
City County Zip Code
at such address shall be Raymond E. Marshall
------------------------
Name of Registered Agent
* Address stall be complete, using full street address. A box number is
acceptable only in those cases where street addresses are not available.
Such statement shall be executed by the corporation by its president or a vice
president:
Dated: February 1, 1990 President: /s/ Raymond Marshall
-----------------------------
Raymond Marshall
or
Vice President
-------------------------
If the Secretary of State finds that such statement conforms to the provisions
of sections 21-2001 to 21-20,144, he shall file such statement in his office.
The duplicate statement, bearing the date of filing in the office of the
Secretary of State shall be recorded in the office of the county clerk of the
county where the registered office of the corporation is located in Nebraska. If
the statement changes the location of the registered office to another county,
the statement bearing the date of the filing in the office of the Secretary of
State shall be filed in both counties.
[Stamped Text Illegible]
Filing Fee: $18.00
27
ARTICLES OF MERGER OF EVANS BROS. CO., INC. [Subsidiary]
INTO NEBCO EVANS DISTRIBUTION, INC. [Parent]
This action is taken pursuant to Section 21-2074 of the Nebraska Business
Corporation Act, as amended, and Sections 180.68 and 180.685 of the Wisconsin
Statutes, as amended.
The undersigned being the president and assistant secretary, respectively
of NEBCO EVANS Distribution, Inc., a Nebraska corporation (Parent and Surviving
Corporation), owner of 100% of the outstanding shares of each class of Evans
Bros. Inc., a Wisconsin corporation (Subsidiary Corporation), hereby execute
and adopt these Articles of Merger in duplicate:
1. The following Plan of Merger was adopted by the unanimous resolution of
the Board of Directors of the Parent and Surviving Corporation:
a) The name of the Subsidiary Corporation is Evans Bros. Co., Inc.
and the name of the Corporation owning l00% of the Subsidiary Corporation shares
is NEBCO EVANS Distribution, Inc.
b) Upon the effective date of the merger, all outstanding shares of
the Subsidiary Corporation and all rights in respect thereof shall cease to
exist and, on that date, the Surviving Corporation shall cause all stock
certificates of the Subsidiary Corporation to be cancelled.
c) The business purpose for the merger is to simplify and
consolidate administration and accounting of the Parent and Surviving
Corporation and its subsidiary corporations.
[Stamped Text Illegible]
28
2. The Subsidiary Corporation has 30,294 shares of its common stock
outstanding and the Surviving Corporation owns 30,294 shares of said common
stock. The Subsidiary Corporation has no other classes of issued and outstanding
capital stock.
3. The Surviving Corporation, as owner of all the outstanding shares of
the Subsidiary Corporation, has waived the mailing of a copy of the Plan of
Merger to it.
4. The Nebraska registered office of the Surviving Corporation is in
Douglas County. The Wisconsin registered office for both the Surviving
Corporation and the Subsidiary Corporation is in Waukesha County.
5. This merger shall become effective upon February 23, 1990.
IN WITNESS WHEREOF, the undersigned hereby make and sign these Articles of
Merger on the 12th day of February, 1990 and affirm the statements contained
herein are true under penalties of perjury.
NEBCO EVANS Distribution, Inc.
By /s/ Raymond Marshall
--------------------------------
Raymond Marshall, President
ATTEST:
/s/ Helen Schartow
- -----------------------
Helen Schartow
Assistant Secretary
[NEBCO EVANS Distribution,
Inc. has no corporate seal]
29
United States of America
State of Wisconsin
OFFICE OF THE SECRETARY OF STATE
---------
To All to Whom These Presents Shall Come:
I, DOUGLAS La FOLLETTE, Secretary of State of Wisconsin, do hereby certify
that articles of incorporation of
EVANS BROS. CO., INC.
were duly filed in this office on November 17, 1937 and that thereafter a
certificate of such filing and grant of corporate powers and privileges was duly
issued to said organization under the hand and seal of the Secretary of State of
Wisconsin, as provided by law.
I further certify that it appears from the records of this office that
said organization continued and now is a body corporate, duly and legally
incorporated, organized and existing by and under the laws of this state, and is
in good standing.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed my official seal
at Madison, on February 14, 1990
/s/ Douglas La Follette
------------------------
DOUGLAS La FOLLETTE
Secretary of State
By: {illegible]
30
ARTICLES OF MERGER OF
NEBCO DISTRIBUTION OF DES MOINES, INC. [Subsidiary]
INTO NEBCO EVANS DISTRIBUTION, INC. [Parent]
This action is taken pursuant to Section 21-2074 of the Nebraska Business
Corporation Act, as amended.
The undersigned being the president and assistant secretary, respectively,
of NEBCO EVANS Distribution, Inc., a Nebraska corporation (Parent and Surviving
Corporation) owner of 100% of the outstanding shares of each class of NEBCO
Distribution of Des Moines, Inc., a Nebraska corporation (Subsidiary
Corporation) hereby execute and adopt these Articles of Merger in duplicate:
1. The following Plan of Merger was adopted by the unanimous resolution of
the Board of Directors of the Parent and Surviving Corporation:
a) The name of the Subsidiary Corporation is NEBCO Distribution of
Des Moines, Inc. and the name of the Corporation owning 100% of the Subsidiary
Corporation shares is NEBCO EVANS Distribution, Inc.
b) Upon the effective date of the merger, all outstanding shares of
the Subsidiary Corporation and all rights in respect thereof shall cease to
exist and, on that date, the Surviving Corporation shall cause all stock
certificates of the Subsidiary Corporation to be cancelled.
31
c) The business purpose for the merger is to simplify and
consolidate administration and accounting of the Parent and Surviving
Corporation and its subsidiary corporations.
2. The Subsidiary Corporation has 10 shares of its common stock
outstanding and the Surviving Corporation owns 10 shares of said common stock.
The Subsidiary Corporation has no other classes of issued and outstanding
capital stock.
3. The Surviving Corporation, as owner of all the outstanding shares of
the Subsidiary Corporation, has waived the mailing of a copy of the Plan of
Merger to it.
4. The Nebraska registered office for both the Surviving Corporation and
the Subsidiary Corporation is in Douglas County.
5. This merger shall become effective upon February 23, 1990.
In WITNESS WHEREOF, the undersigned hereby make and sign these Articles of
Merger on the 12th day of February, 1990 and affirm the statements contained
herein are true under penalties of perjury.
NEBCO EVANS Distribution, Inc.
By /s/ Raymond Marshall
--------------------------------
Raymond Marshall, President
ATTEST:
/s/ Helen Schartow
- -----------------------
Helen Schartow
Assistant Secretary
[NEBCO EVANS Distribution,
Inc. has no corporate seal]
32
ARTICLES OF MERGER OF
WISCONSIN CONCESSION SUPPLY, INC. [Subsidiary]
INTO NEBCO EVANS DISTRIBUTION, INC. [Parent]
This action is taken pursuant to Section 21-2074 of the Nebraska Business
Corporation Act, as amended.
The undersigned being the president and assistant secretary, respectively,
of NEBCO EVANS Distribution, Inc., a Nebraska corporation (Parent and Surviving
Corporation), owner of 100% of the outstanding shares of each class of
Wisconsin Concession Supply, Inc., a Nebraska corporation (Subsidiary
Corporation), hereby execute and adopt these Articles of Merger in duplicate:
1. The following Plan of Merger was adopted by the unanimous
resolution of the Board of Directors of the Parent and Surviving
Corporation:
a) The name of the Subsidiary Corporation is Wisconsin Concession
Supply, Inc. and the name of the Corporation owning 100% of the Subsidiary
Corporation shares is NEBCO EVANS Distribution, Inc.
b) Upon the effective date of the merger, all outstanding shares of
the Subsidiary Corporation and all rights in respect thereof shall cease to
exist and, on that date, the Surviving Corporation shall cause all stock
certificates of the Subsidiary Corporation to be cancelled.
33
c) The business purpose for the merger is to simplify and
consolidate administration and accounting of the Parent and Surviving
Corporation and its subsidiary corporations.
2. The Subsidiary Corporation has 10 shares of its common stock
outstanding and the Surviving Corporation owns 10 shares of said common stock.
The Subsidiary Corporation has no other classes of issued and outstanding
capital stock.
3. The Surviving Corporation, as owner of all the outstanding shares of
the Subsidiary Corporation, has waived the mailing of a copy of the Plan of
Merger to it.
4. The Nebraska registered office for both the Surviving Corporation and
the Subsidiary Corporation is in Douglas County.
5. This merger shall become effective upon February 23, l990.
IN WITNESS WHEREOF, the undersigned hereby make and sign these Articles of
Merger on the 12th day of February, 1990 and affirm the statements contained
herein are true under penalties of perjury.
NEBCO EVANS Distribution, Inc.
By /s/ Raymond Marshall
--------------------------------
Raymond Marshall, President
ATTEST:
/s/ Helen Schartow
- -----------------------
Helen Schartow
Assistant Secretary
[NEBCO EVANS Distribution,
Inc. has no corporate seal]
34
ARTICLES 0F MERGER OF
NEBCO DISTRIBUTION OF KANSAS CITY, INC. [Subsidiary]
INTO NEBCO EVANS DISTRIBUTION, INC. [Parent]
The action is taken pursuant to Section 21-2074 of the Nebraska Business
Corporation Act, as amended.
The undersigned being the president and assistant secretary, respectively,
of NEBCO EVANS Distribution, Inc., a Nebraska corporation (Parent and Surviving
Corporation) owner of 100% of the outstanding shares of each class of NEBCO
Distribution of Kansas City, Inc., a Nebraska corporation (Subsidiary
Corporation), hereby execute and adopt these Articles of Merger in duplicate:
1. The following Plan of Merger was adopted by the unanimous
resolution of the Board of Directors of the Parent and Surviving Corporation:
a) The name of the Subsidiary Corporation is NEBCO Distribution of
Kansas City, Inc. and the name of the Corporation owning 100% of the Subsidiary
Corporation shares is NEBCO EVANS Distribution, Inc.
b) Upon the effective date of the merger, all outstanding shares of
the Subsidiary Corporation and all rights in respect thereof shall cease to
exist and, on that date, the Surviving Corporation shall cause all stock
certificates of the Subsidiary Corporation to be cancelled.
[Stamped Text Illegible]
35
c) The business purpose for the merger is to simplify and
consolidate administration and accounting of the Parent and Surviving
Corporation and its subsidiary corporations.
2. The Subsidiary Corporation has 100 shares of its common stock
outstanding and the Surviving Corporation owns 100 shares of said common
stock. The Subsidiary Corporation has no other classes of issued and outstanding
capital stock.
3. The Surviving Corporation, as owner of all the outstanding shares of
the Subsidiary Corporation, has waived the mailing of a copy of the Plan of
Merger to it.
4. The Nebraska registered office for both the Surviving Corporation and
the Subsidiary Corporation is in Douglas County.
5. This merger shall become effective upon February 23, 1990.
IN WITNESS WHEREOF, the undersigned hereby make and sign these Articles of
Merger on the 12th day of February, l990 and affirm the statements contained
herein are true under penalties of perjury.
NEBCO EVANS Distribution, Inc.
By /s/ Raymond Marshall
--------------------------------
Raymond Marshall, President
ATTEST:
/s/ Helen Schartow
- -----------------------
Helen Schartow
Assistant Secretary
[NEBCO EVANS Distribution,
Inc. has no corporate seal]
36
ARTICLES 0F MERGER OF
NEBCO DISTRIBUTION OF MINNEAPOLIS, INC. [Subsidiary]
INTO NEBCO EVANS DISTRIBUTION, INC. [Parent]
This action is taken pursuant to Section 21-2074 of the Nebraska Business
Corporation Act, as amended, and Sections 302A.62l and 302A.65l of the Minnesota
Statutes, as amended.
The undersigned being the president and assistant secretary, respectively,
of NEBCO EVANS Distribution, Inc., a Nebraska corporation (Parent and Surviving
Corporation), owner of 100% of the outstanding shares of each class of NEBCO
Distribution of Minneapolis, Inc., a Minnesota corporation (Subsidiary
Corporation), hereby execute and adopt these Articles of Merger in duplicate:
1. The following Plan of Merger was adopted by the unanimous resolution of
the Board of Directors of the Parent and Surviving Corporation:
a) The name of the Subsidiary Corporation is NEBCO Distribution of
Minneapolis, Inc. and the name of the Corporation owning 100% of the Subsidiary
Corporation shares is NEBCO EVANS Distribution, Inc.
b) Upon the effective date of the merger, all outstanding shares of
the Subsidiary Corporation and all rights in respect thereof shall cease to
exist and, on that date, the Surviving Corporation shall cause all stock
certificates of the Subsidiary Corporation to be cancelled.
37
c) The business purpose for the merger is to simplify and
consolidate administration and accounting of the Parent and Surviving
Corporation and its subsidiary Corporations.
2. The Subsidiary Corporation has 10 shares of its common stock
outstanding and the Surviving Corporations owns 10 shares of said common stock.
The Subsidiary Corporation has no other classes of issued and outstanding
capital stock.
3. The Surviving Corporation, as owner of all the outstanding shares of
the Subsidiary Corporation, has waived the mailing of a copy of the Plan of
Merger to it.
4. The Nebraska registered office of the Surviving Corporation is in
Douglas County. The Minnesota registered office for both the Surviving
Corporation and the Subsidiary Corporation is in Hennepin County.
5. This merger shall become effective upon February 23, 1990.
IN WITNESS WHEREOF, the undersigned hereby make and sign these Articles of
Merger on the 12th day of February, 1990 and affirm the statements contained
herein are true under penalties of perjury.
NEBCO EVANS Distribution, Inc.
By /s/ Raymond Marshall
--------------------------------
Raymond Marshall, President
ATTEST:
/s/ Helen Schartow
- -----------------------
Helen Schartow
Assistant Secretary
[NEBCO EVANS Distribution,
Inc. has no corporate seal]
38
State of Minnesota
--------------------
SECRETARY OF STATE
--------------------
Certificate of Good Standing
I, Joan Anderson Growe, Secretary of State of Minnesota, do certify that:
The corporation listed below is a corporation formed under the laws of
Minnesota; that the corporation was formed by the filing of Articles of
Incorporation with the Office of the Secretary of State on the date listed
below; that the corporation is governed by the chapter of Minnesota Statutes
listed below; and that this corporation is authorized to do business as a
corporation at the time this certificate is issued.
Name: NEBCO Distribution of Minneapolis, Inc.
Date Formed: 05/26/[Illegible]
Chapter Governed By: 302A
This Certificate has been issued on 02/14/90
/s/ Joan Anderson Growe
-----------------------
Joan Anderson Growe
Secretary of State
39
MAR 22 1991
STATE OF NEBRASKA ) SS
SECRETARY'S OFFICE )
Received and filed for record 44485
and recorded on film roll No. _____
[ILLEGIBLE] at page 299
/s/ Allen J. Beermann
---------------------
Secretary of State
By /s/ JVB
-----------------
6,045.00 pd.
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF
NEBCO EVANS DISTRIBUTION, INC.
NEBCO EVANS Distribution, Inc., a Nebraska corporation, hereby adopts the
following Articles of Amendment to its Articles of Incorporation.
1. The name of the Corporation is NEBCO EVANS Distribution, Inc.
2. NEBCO EVANS Distribution, Inc. hereby amends Article Fourth of its
Articles of Incorporation to read as follows in its entirety:
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue is (a) 640 shares of common stock and each such share of
common stock shall have a par value of $10.00 per share; and (b) 300,000 shares
of preferred stock and each such preferred share shall have a par value of
$10.00 and such relative rights and preferences as may be fixed and determined
by resolution of the Board of Directors.
3. The Amendment was adopted by the shareholders on the 18th day of
February, 1991.
4. The number of shares outstanding as of the adoption of the Amendment
was 600 shares of common stock having a par value of $10.00 per share and each
of said shares was entitled to vote thereon.
5. The holder of 600 shares voted for such amendment and no holder of any
shares voted against such amendment.
40
6. A written unanimous Consent in writing has been given in lieu of a
Board of Directors' meeting and meeting of the holders of all of the shares
entitled to vote on said Amendment.
7. These Articles of Amendment have been executed by and on behalf of the
Corporation by its president and secretary on this 15th day of March, 1991.
NEBCO EVANS DISTRIBUTION, INC.
By /s/ Raymond E. Marshall
-----------------------------------
Raymond E. Marshall, President
ATTEST:
/s/ Peter Hoefer
- ------------------------------
Peter Hoefer, Secretary
41
NEBCO EVANS DISTRIBUTION, INC.
300,000 Series 91 Preferred Shares
The NEBCO EVANS Distribution, Inc. Series 91 Preferred Series (Series)
shall consist of 300,000 shares, $10.00 par value, each having the following
rights and preferences:
(1) Dividends. The holders of record of shares of this Series shall
be entitled to receive when and as declared by the Board of Directors out
of funds legally available therefore, cash dividends at the rate of $1.00
per share per annum payable quarterly on such dates as may from time to
time be determined by the Board of Directors, in preference to and in
priority over dividends upon the common shares or any other shares of the
Corporation. Dividends on each share of this series shall accumulate,
whether or not declared, from the date of its issuance. The holders of
shares of this Series shall not be entitled to any dividends other than
the cash dividend provided for in this Section (1). No dividends shall be
declared or paid on the common shares or an other shares of the
Corporation during any period when the Corporation has failed to pay a
quarterly dividend on this Series for any preceding quarter.
(2) Liquidation. In the event of a liquidation, dissolution or
winding up of the Corporation, the holders of shares of this Series shall
be entitled to receive out of the assets of the Corporation an amount
equal to $10.00 per share, plus any accumulated and unpaid dividends
thereon to the date fixed for distribution, in preference to and in
priority over any such distribution upon the common shares or any other
shares of the Corporation.
(3) Redemption. This Series may be redeemed, in whole or in part, at
the option of the Corporation by resolution Of its Board of Directors, at
any time and from time to time, at the redemption price per share of
$10.00 plus any accumulated and unpaid dividends thereon at the date fixed
for redemption. In the event that less than the entire number of shares of
this Series outstanding is at any time redeemed by the Corporation, the
shares to be redeemed shall be selected by lot in a manner determined by
the Board of Directors of the Corporation unless they shall have been
advised by the unanimous agreement of the holders of all shares of this
Series to effect the redemption in some other manner. This Series must be
redeemed, in whole, not later than seven (7) years after the issuance of
any share of this Series.
Not less than 30 nor more than 40 days prior to the date fixed for
any redemption of this Series or any part thereof, a notice specifying the
time and place of such redemption shall be given by first class mail,
postage prepaid, to the
42
holders of record of the shares of this Series selected for redemption at
their respective addresses as the same shall appear on the books of the
Corporation, but no failure to mail such notice or any defect therein or
in the mailing thereof shall affect the validity of the proceedings for
redemption. Any notice which was mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the
holders receive the notice.
After the date fixed for the redemption of shares of this Series by
the Corporation, the holders of shares selected for redemption shall cease
to be shareholders with respect to such shares and shall have no interest
in or claims against the Corporation by virtue thereof except the right to
receive the monies payable upon such redemption from the Corporation,
without interest thereon, upon surrender (and endorsement, if required by
the Corporation) of their certificates and the shares represented thereby
shall no longer be deemed to be outstanding. The Corporation may, at its
option, at any time after a notice of redemption has been given, deposit
the redemption price for all shares of this Series designated for
redemption and not yet redeemed in escrow with a national bank as a trust
fund for the benefit of the holders of the shares of this Series
designated for redemption. From and after the making of such deposit, the
holders of shares designated for redemption shall cease to be shareholders
with respect to such shares and shall have no interest in or claim against
the Corporation by virtue thereof except the right to receive from such
trust fund the monies payable upon such redemption, without interest
thereon, upon surrender (and endorsement, if required by the Corporation)
of their certificates and the shares represented thereby shall no longer
be deemed to be outstanding.
(4) Voting Rights. No holder of this Series shall be entitled to
vote on any matters brought to a vote before the shareholders of the
Corporation, except as otherwise provided by the Business Corporation Law
of the State of Nebraska.
(5) Consideration for Issuance of Shares. All shares of this Series
shall be deemed to be fully paid and non-assessable upon the issuance
thereof.
(6) Notice to Holders of Certain Transactions. The Corporation shall
cause a notice to be mailed to the holders of record of shares of this
Series at their respective addresses as the same shall appear on the books
of the Corporation, in case:
(a) The Corporation shall declare a dividend (or any other
distribution) on its common shares or other shares;
(b) Of any reclassification of capital stock
43
of the Corporation or of any consolidation or merger to which the
Corporation is a party and for which approval of any shareholders of
the Corporation is required, or of the sale or transfer of all or
substantially all of the assets of the Corporation;
(c) Of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation.
Such notice shall be mailed at least 20 days prior to the applicable
record date or other date hereinafter referred to and shall specify (i)
the date on which a record is to be taken for the purpose of such
dividend, redemption, distribution of rights or, if a record is not to be
taken, the date as of which the holders of common shares of record to be
entitled to such dividend, distribution, redemption or rights are to be
determined, or (ii) the date on which, in connection with such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, it is expected that holders of common shares of
record shall be entitled to exchange their common shares for securities or
other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
(7) Limitation on Cash Dividends and Distributions on Shares. So
long as any shares of this Series are outstanding, the Corporation may not
pay any cash dividend or make any other distribution in cash on its common
shares or any other shares.
(8) Limitation on Certain Actions. So long as any shares of this
Series are outstanding, the Corporation shall not: (a) authorize, create
or issue any other class or classes of preferred shares or any other
shares having rights, powers or preferences equal to or senior to the
shares of this Series, (b) redeem, purchase or otherwise acquire any
shares of its common shares or other shares, and (c) merge, consolidate,
sell or otherwise dispose of substantially all of its assets.
(9) No Other Rights. The shares of this Series shall not have any
relative, participating, optional or other special rights or powers other
than as set forth above and in the Certificate of Incorporation of the
Corporation as amended.
(10) Certificates. Each certificate for shares of this Series shall
bear a legend incorporating a certified copy of this resolution which
shall be authenticated by the President or Vice President of the
Corporation and appended to each such certificate.
44
[ILLEGIBLE]
ARTICLES OF MERGER
L. L. DISTRIBUTION SYSTEMS, INC. [Subsidiary]
INTO NEBCO EVANS DISTRIBUTION, INC. [Parent]
This action is taken pursuant to Section 21-2074 of the Nebraska Business
Corporation Act, as amended, and Sections 302A.621 and 302A.651 of the Minnesota
Statutes, as amended.
The undersigned being president and secretary, respectively, of NEBCO
EVANS Distribution, Inc., a Nebraska corporation (Parent and Surviving
Corporation), owner of 100% of the outstanding shares of each class of L. L.
Distribution Systems, Inc., a Minnesota corporation (Subsidiary Corporation),
hereby execute and adopt these Articles of Merger in duplicate:
1. The following Plan of Merger was adopted by the unanimous resolution of
the Board of Directors of the Parent and Surviving Corporation:
a) The name of the Subsidiary Corporation is L. L. Distribution
Systems, Inc. and the name of the Corporation owning 100% of the Subsidiary
Corporation shares is NEBCO EVANS Distribution, Inc.
b) Upon the effective date of the merger, all outstanding shares of
the Subsidiary Corporation and all rights in respect hereof shall cease to exist
and, on that date, the Surviving Corporation shall cause all stock certificates
of the Subsidiary Corporation to be cancelled.
45
c) The business purpose for the merger is to simplify and
consolidate administration and accounting of the Parent and Surviving
Corporation and its subsidiary corporation.
2. The Subsidiary Corporation has 6,000 shares of its common stock
outstanding and the Surviving Corporation owns 6,000 shares of said common
stock. The Subsidiary Corporation has no other classes of issued and outstanding
capital stock.
3. The Surviving Corporation, as owner of all the outstanding shares of
the Subsidiary Corporation, has waived the mailing of a copy of the Plan of
Merger to it.
4. The Nebraska registered office of the Surviving Corporation is in
Douglas County. The Minnesota registered office for both the Surviving
Corporation and the Subsidiary Corporation is in Hennepin County.
5. This merger shall become effective upon December 31, 1991.
IN WITNESS WHEREOF, the undersigned hereby make and sign these Articles of
Merger on the 10th day of December, 1991 and affirm the statements contained
herein are true under penalties of perjury.
NEBCO EVANS DISTRIBUTION, INC.
ATTEST:
By /s/ Raymond E. Marshall
-------------------------------
Raymond E. Marshall, President
/s/ Peter S. Hoefer
- --------------------------------
Peter S. Hoefer, Secretary
[NEBCO EVANS Distribution,
Inc. has no corporate seal]
46
DEC 31 1991
Receipt No. 59335 $9,034.00
---------------------
STATE OF NEBRASKA ) SS
SECRETARY'S OFFICE )
Filed and recorded on film roll
91-31 page 78
-------- -------------------
/s/ Allen J. Beermann
---------------------------------
Secretary of State
By /s/ JKR
---------------------------
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF
NEBCO EVANS DISTRIBUTION, INC.
NEBCO EVANS Distribution, Inc., a Nebraska corporation, hereby adopts the
following Articles of Amendment to its Articles of Incorporation.
1. The name of the Corporation is NEBCO EVANS Distribution, inc.
2. NEBCO EVANS Distribution, INC. hereby amends Article Fourth of its
Articles of Incorporation to read as follows in its entirety:
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue is (a) 1,000 shares of common stock and each such share of
common stock shall have a par value of $10.00 per share; and (b) 150 shares of
convertible preferred shares and each such convertible preferred share shall
have a par value of $50,000.00 and such relative rights and preferences as may
be fixed and determined by resolution of the Board of Directors.
3. The Amendment was adopted by the shareholders on the 10th day of
December, 1991.
4. The number of shares outstanding as of the adoption of the Amendment
was 600 shares of common stock having a par value of $10.00 per share and each
of said shares was entitled to vote thereon.
47
5. The holder of 600 shares voted for such amendment and no holder of any
shares voted against such amendment.
6. A written unanimous Consent in writing has been given in lieu of a
Board of Directors' meeting and meeting of the holders of all of the shares
entitled to vote on said Amendment.
7. These Articles of Amendment have been executed by and on behalf of the
Corporation by its president and secretary on this 31st day of December, 1991.
NEBCO EVANS DISTRIBUTION, INC.
BY /s/ Raymond E. Marshall
--------------------------------
Raymond E. Marshall, President
ATTEST:
/s/ Peter Hoefer
- --------------------------------
Peter Hoefer, Secretary
48
NEBCO EVANS DISTRIBUTION, INC.
Series $50,000 Par Value Convertible Preferred Shares
The NEBCO EVANS Distribution, Inc. Series $50,000 Par Value Convertible
Preferred Series (Series) shall consist of 150 shares, $50,000.00 par value,
each having the following rights and preferences:
(1) Dividends. The holders of record of shares of this Series shall
be entitled to receive when and as declared by the Board of Directors out
of funds legally available therefore, cash dividends at the rate of
$5,500.00 per share per annum payable monthly on such dates as may from
time to time be determined by the Board of Directors, in preference to and
in priority over dividends upon the common shares or any other shares of
the Corporation. Dividends on each share of this Series shall accumulate,
whether or not declared, front the date of its issuance. The holders of
shares of this Series shall not be entitled to any dividends other than
the cash dividend provided for in this Section (1). No dividends shall be
declared or paid on the common shares or any other shares of the
Corporation during any period when the Corporation has failed to pay a
monthly dividend on this Series for any preceding month.
(2) Liquidation. In the event of a liquidation, dissolution or
winding up of the Corporation, the holders of shares of this Series shall
be entitled to receive out of the assets of the Corporation an amount
equal to $50,000.00 per share, plus any accumulated and unpaid dividends
thereon to the date fixed for distribution, in preference to and in
priority over any such distribution upon the common shares or any other
shares of the Corporation.
(3) Redemption. This Series may be redeemed, in whole or in part, at
the option of the Corporation by resolution of its Board of Directors, at
any time and from time to time, at the redemption price per share of
$50,000.00 plus any accumulated and unpaid dividends thereon at the date
fixed for redemption. In the event that less than the entire number of
shares of this Series outstanding is at any time redeemed by the
Corporation, the shares to be redeemed shall be selected by lot in a
manner determined by the Board of Directors of the Corporation unless they
shall have been advised by the unanimous agreement of the holders of all
shares of this Series to effect the redemption in some other manner.
-1-
49
Not less than sixty (60) nor more than seventy-five (75) days prior
to the date fixed for any redemption of this Series or any part thereof, a
notice specifying the time and place of such redemption shall be given by
first class mail, postage prepaid, to the holders of record of the shares
of this Series selected for redemption at their respective addresses as
the same shall appear on the books of the Corporation, but no failure to
mail such notice or any defect therein or in the mailing thereof shall
affect the validity of the proceedings for redemption. Any notice which
was mailed in the manner herein provided shall be conclusively presumed to
have been duly given whether or not the holders receive the notice.
Subject to the conversion rights provided for hereinbelow, after the
date fixed for the redemption of shares of this Series by the Corporation,
the holders of shares selected for redemption shall cease to be
shareholders with respect to such shares and shall have no interest in or
claims against the Corporation by virtue thereof except the right to
receive the monies payable upon such redemption from the Corporation,
without interest thereon, upon surrender (and endorsement, if required by
the Corporation) of their certificates and the shares represented thereby
shall no longer be deemed to be outstanding.
(4) Voting Rights. No holder this Series shall be entitled to vote
on any matters brought to a vote before the shareholders of the
Corporation, except as otherwise provided by the Business Corporation Law
of the State of Nebraska.
(5) Consideration for Issuance of Shares. All shares of this Series
shall be deemed to be fully paid and non-assessable upon the issuance
thereof.
(6) Notice of Holders of Certain Transactions. The Corporation shall
cause a notice to be mailed to the holders of record of shares of this
Series at their Respective addresses as the same shall appear on the books
of the Corporation, in case:
(a) The Corporation shall declare a dividend (or any other
distribution) on its common shares or other shares;
(b) Of any reclassification of capital stock of the Corporation or
of any consolidation or merger to which the Corporation is a party
and for which approval of any shareholders of the Corporation is
required, or of the sale or transfer of all or substantially all of
the assets of the Corporation;
-2-
50
(c) Of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation.
Such notice shall be mailed at least 20 days prior to the applicable
record date or other date hereinafter referred to and shall specify (i)
the date on which a record is to be taken for the purpose of such
dividend, redemption, distribution of rights or, if a record is not to be
taken, the date as of which the holders of common shares of record to be
entitled to such dividend, distribution, redemption or rights are to be
determined, or (ii) the date on which, in connection with such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, it is expected that holders of common shares of
record shall be entitled to exchange their common shares for securities or
other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
(7) Limitation on Cash Dividends and Distributions on Shares. So
long as any shares of this Series are outstanding, the Corporation may not
pay any cash dividend or make any other distribution in cash on its common
shares or any other shares.
(8) Limitation on certain Actions. So long as any shares of this
Series are outstanding, the Corporation shall not: (a) authorize, create
or issue any other class or classes of preferred shares or any other
shares having rights, powers or preferences equal to or senior to the
shares of this Series, (b) redeem, purchase or otherwise acquire any
shares of its common shares or other shares, and (c) merge, consolidate,
sell or otherwise dispose of substantially all of its assets.
(9) Conversion. The holders of each share of this Series shall have
the right at their option to convert each such share into one common share
of the Corporation at any time upon sixty (60) days notice (or if such
share is called for redemption, at any time without notice up to and
including, but not after, the close of business on the day prior to the
date fixed for redemption). In the event the Corporation recapitalizes or
declares dividends payable in its common shares, the number of common
shares into which one convertible share is convertible shall be equitably
adjusted but no adjustment shall be required in the event additional
common shares of the Corporation are issued due to the exercise of stock
options outstanding as of the date of issuance of this Series. The
Corporation shall, so long as any share of this Series is outstanding,
reserve and keep available out of its authorized and unissued common
shares sufficient number of common shares required to effect conversation
of all shares of this Series
-3-
51
(10) No Other Rights. The shares of this Series shall not have any
relative, participating, optional or other special rights or powers other
than as set forth above and in the Certificate of Incorporation of the
Corporation as amended.
(11) Certificates. Each certificate for shares of this Series shall
bear a legend incorporating a certified copy of this Resolution which
shall be authenticated by the President or Vice President of the
Corporation and appended to each such certificate.
-4-
52
MAR 2 1994
STATE OF NEBRASKA ) SS
SECRETARY'S OFFICE )
Received and filed for record 1277
and recorded on film roll No. ____
94-5 at page 577
---------- ---------------
/s/ Allen J. Beermann
---------------------------------
Secretary of State
By /s/ [ILLEGIBLE] $20045.00 pd
---------------------------
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF
NEBCO EVANS DISTRIBUTION, INC.
NEBCO EVANS Distribution, Inc., a Nebraska corporation, hereby adopts the
following Articles of Amendment to its Articles of Incorporation.
1. The name of the Corporation is NEBCO EVANS Distribution, Inc.
2. NEBCO EVANS Distribution, Inc. hereby amends Article Fourth of its
Articles of Incorporation to read as follows in its entirety:
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue is (1) 2,000 shares of common stock and each such share of
common stock shall have a par value of $10.00 per share; (b) 150 shares of
convertible preferred shares and each such convertible preferred share shall
have a par value of $50,000.00 and such relative rights and preferences as may
be fixed and determined by resolution of the Board of Directors; and (c) 400
shares of convertible preferred shares and each such convertible preferred share
shall have a par value of $25,000.00 and such relative rights and preferences as
may be fixed and determined by resolution of the Board of Directors which
relative rights and preferences are set forth in the attached designation.
3. The Amendment was adopted by the shareholders at a meeting on April 1,
1993.
53
4. The number of shares outstanding as of the adoption of the Amendment
was 600 shares of common stock having a par value of $10.00 per share and 150
shares of its Series $50,000 Par Value Convertible Preferred Shares. Each of
said common shares was entitled to vote thereon. None of the Series $50,000 Par
Value Convertible Preferred Shares were entitled to vote thereon.
5. The holders of more than two thirds (2/3) of the common shares voted
for such Amendment and no holder of any common shares voted against such
amendment.
6. These Articles of Amendment have been executed by and on behalf of the
Corporation by its President (or Vice President) and Secretary (or Assistant
Secretary) on this 19 day of February, 1994.
NEBCO EVANS DISTRIBUTION, INC.
By /s/ Raymond E. Marshall, Pres.
---------------------------------
President
ATTEST:
/s/ Donald J. Rogers
- -------------------------------
Secretary
54
NEBCO EVANS DISTRIBUTION, INC.
Series $25,000 Par Value Convertible Preferred Shares
The NEBCO EVANS Distribution, Inc. Series $25,000 Par Value Convertible
Preferred Series (Series) shall consist of 400 shares, $25,000.00 par value,
each having the following rights and preferences:
1. Dividends. The holders of record of shares of this Series shall be
entitled to receive when and as declared by the Board of Directors out of funds
legally available therefore, cash dividends at the rate of $2,375.00 per share
per annum payable semi-annually on such dates as may from time to time be
determined by the Board of Directors, in preference to and in priority over
dividends upon the common shares but not in priority over dividends upon the
Series $50,000 Par Value Convertible Preferred Shares of the Corporation.
Dividends on each share of this Series shall accumulate, whether or not
declared, from the date of its issuance. The holders of shares of this Series
shall not be entitled to any dividends other than the cash dividend provided for
in this Section (1). No dividends shall be declared or paid on the common shares
of the Corporation during any period when the Corporation has failed to pay a
semi-annual dividend on this Series for any preceding six-month period.
2. Liquidation. In the event of a liquidation, dissolution or winding up
of the Corporation, the holders of shares of this Series shall be entitled to
receive out of the assets of the Corporation an amount equal to $25,000.00 per
share, plus any accumulated and unpaid dividends thereon to the date fixed for
distribution, in preference to and in priority over any such distribution upon
the common shares but not in priority over any such distribution upon the Series
$50,000 Par Value Convertible Preferred Shares or any other shares of the
Corporation.
3. Redemption. This Series may be redeemed, in whole or in part, at the
option of the Corporation by resolution of its Board of Directors, at any time
and from time to time, at the redemption price per share of $25,000.00 plus any
accumulated and unpaid dividends thereon at the date fixed for redemption. In
the event that less than the entire number of shares of this Series outstanding
is at any time redeemed by the Corporation, the shares to be redeemed shall be
selected by lot in a manner determined by the Board of Directors of the
Corporation unless they shall have been advised by the unanimous agreement of
the holders of all shares of this Series to effect the redemption in some other
manner. Not less than sixty (60) nor more than seventy-five (75) days prior to
the date fixed for any redemption of this Series or
55
any part thereof, a notice specifying the time and place of such redemption
shall be given by first class mail, postage prepaid, to the holders of record of
the shares of this Series selected for redemption at their respective addresses
as the same shall appear on the books of the Corporation, but no failure to mail
such notice or any defect therein or in the mailing thereof shall affect the
validity of the proceedings for redemption. Any notice which was mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the holders receive the notice.
Subject to the conversion rights provided for hereinbelow, after the date
fixed for the redemption of shares of this Series by the Corporation, the
holders of shares selected for redemption shall cease to be shareholders with
respect to such shares and shall have no interest in or claims against the
Corporation by virtue thereof except the right to receive the monies payable
upon such redemption from the Corporation, without interest thereon, upon
surrender (and endorsement, if required by the Corporation) of their
certificates and the shares represented thereby shall no longer be deemed to be
outstanding.
4. Voting Rights. No holder this series shall be entitled to vote on any
matters brought to a vote before the shareholders of the Corporation, except as
otherwise provided by the Business Corporation Law of the State of Nebraska.
5. Consideration for Issuance of Shares. All shares of this Series shall
be deemed to be fully paid and nonassessable upon the issuance thereof.
6. Notice of Holders of Certain Transactions. The Corporation shall cause
a notice to be mailed to the holders of record of shares of this Series at their
Respective addresses as the same shall appear on the books of the Corporation,
in case:
a) The Corporation shall declare a dividend (or any other
distribution) on its common shares;
b) Of any reclassification of capital stock of the Corporation or of
any consolidation or merger to which the Corporation is a party and for which
approval of any shareholders of the Corporation is required, or of the sale or
transfer of all or substantially all of the assets of the Corporation;
c) Of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation.
Such notice shall be mailed at least 20 days prior to the applicable
record date or other date hereinafter referred to and shall specify (i) the date
on which a record is to be taken for the purpose of such dividend, redemption,
distribution of rights or, if a record is not to be taken, the date as of which
the holders of common shares of record to be entitled to such
56
dividend, distribution, redemption or rights are to be determined, or (ii) the
date on which, in connection with such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up, it is expected that
holders of common shares of record shall be entitled to exchange their common
shares for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
7. Limitation on Cash Dividends and Distributions on Shares. So long as
any shares of this Series are outstanding, the Corporation may not pay any cash
dividend or make any other distribution in cash on its common shares.
8. Limitation on certain Actions. So long as any shares of this Series are
outstanding, the Corporation shall not: (a) authorize, create or issue any other
class or classes of preferred shares or any other shares having rights, powers
or preferences equal to or senior to the shares of this Series, (b) redeem,
purchase or otherwise acquire any of its common shares, and (c) merge,
consolidate, sell or otherwise dispose of substantially all of its assets.
9. Conversion. The holders of each share of this Series shall have the
right at their option to convert each such share into one-half (1/2) common
share of the Corporation at any time upon sixty (60) days notice (or if such
share is called for redemption, at any time without notice up to and including,
but not after, the close of business on the day prior to the date fixed for
redemption). In the event the Corporation recapitalizes or declares dividends
payable in its common shares, the number of common shares into which one
convertible share is convertible shall be equitably adjusted but no adjustment
shall be required in the event additional common shares of the Corporation are
issued due to the exercise of stock options outstanding as of the date of
issuance of this Series. The Corporation shall, so long as any share of this
Series is outstanding, reserve and keep available out of its authorized and
unissued common shares sufficient number of common shares required to effect
conversation of all shares of this Series.
10. No Other Rights. The shares of this Series shall not have any
relative, participating, optional or other special rights or powers other than
as set forth above and in the Certificate of Incorporation of the Corporation as
amended.
11. Certificates. Each certificate for shares of this Series shall bear a
legend incorporating a certified copy of this Resolution which shall be
authenticated by the President or Vice President of the Corporation and appended
to each such certificate.
57
Rev 1 85
CERTIFICATE OF REVIVAL OR RENEWAL
OF A DOMESTIC OR NONPROFIT CORPORATION
To be submitted, in duplicate, to:
Secretary of State, Suite 2300 State Capitol, Lincoln, Nebraska 68509
KNOW ALL MEN BY THESE PRESENTS:
1. Now comes Raymond Marshall, President, and Donald J. Rogers, Secretary
and/or Treasurer, who on June 2, 1994, were duly elected as officers of
NEBCO EVANS Distribution, Inc.
--------------------------------------------------------------------------
Correct Corporate Name as stated in Articles of Incorporation
or most recent Amendment
located at 6905 N. 97th Circle, Omaha, Nebraska 68122
---------------------------------------------------------------
Full Address of Principal Place of Business
a Nebraska corporation duly organized under and by virtue of the laws of
the state of Nebraska, for the purposes of revising or renewing said
corporation.
2. The existence of this corporation became (or will become) inoperative on
April 16, 1994, because of dissolution by the office of the Secretary of
State by expiration of existence, or for nonpayment of occupational taxes
or annual fees. The revival of this corporation shall be perpetual unless
sooner dissolved by proper action of its stockholders, or by due process
of law.
3. The registered office of this corporation in Nebraska shall be
6905 N. 97th Circle, Omaha, NE 68
--------------------------------------------------------------------------
Street Address*
Omaha Douglas Nebraska 68122 and the registered agent at such
---------------------- --------
City County Zip Code
address shall be Raymond Marshall. **
-------------------------
Name of Registered Agent
* Address shall be complete, using full street address. A box number is
acceptable only in those cases where street addresses are not
available.
** If the above-named registered agent or registered office constitutes a
change from the previous designation, this information will be entered
onto the corporation's records in this office. No further notification
or filing of a separate form is necessary.
SIGNATURE OF AT LEAST TWO OFFICERS REQUIRED:
FILING FEES:
President /s/ Raymond E. Marshall
Domestic Revival $28.00 ---------------------------
Secretary /s/ Donald J. Rogers
Nonprofit Revival $15.00 ---------------------------
Treasurer
---------------------------
==========================================================================
CERTIFICATE OF GOOD STANDING IN THE STATE OF NEBRASKA
I, ALLEN J. BEERMANN, Secretary of State, do hereby certify the
above-named corporation to be in good standing
IN TESTIMONY WHEREOF, the Secretary of State of Nebraska has hereby
affixed his signature or facsimile thereof and seal on the date set out in
the recording data.
JUN 21 1994
STATE OF NEBRASKA ) SS
SECRETARY'S OFFICE )
Received and filed for record 7
and recorded on film roll No. ____
(State Seal) 94-12 at page 568
---------- ---------------
/s/ Allen J. Beermann
---------------------------------
Secretary of State
By /s/ [ILLEGIBLE] $6559.26 pd
---------------------------
58
JAN 25 1996
STATE OF NEBRASKA ) SS
SECRETARY'S OFFICE )
Received and filed for record ___
and recorded on film roll No. ___
962 at page 896
----------- -------------
/s/ [ILLEGIBLE] 40260
---------------------------------
Secretary of State
By 4:45 pm /s/ JD 95.00 pd
------------------------------
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION
OF
NEBCO EVANS DISTRIBUTION, INC.
NEBCO EVANS Distribution, Inc. hereby adopts the following Articles of
Amendment to its Articles of Incorporation.
1. The Corporation's name is NEBCO EVANS Distribution, Inc.
2. NEBCO EVANS Distribution, Inc. hereby amends Article Fourth of its
Articles of Incorporation to read as follows in its entirety:
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue is (a) 2,000 shares of common having a par value of $10.00
per share; (b) 150 shares of preferred having a par value of $50,000.00 per
share and such preferences, limitations and relative rights as may be fixed and
determined by resolution of the Board of Directors, which preferences,
limitations and relative rights were set forth in a designation recorded on
December 31, 1991 with the Nebraska Secretary of State's office, said
designation has, with the unanimous vote and consent of the holder of all issued
and outstanding Series $50,000.00 Par Value Convertible Preferred Shares, been
amended to eliminate the convertibility of the shares, to redesignate the shares
as Series $50,000.00 Par Value Preferred Shares and to provide the shares with
the preferences, limitations and relative rights as set forth on the attached
Exhibit "A", which is incorporated herein by reference; (c) 400 shares of
preferred having a par value of $25,000.00 per share and such preferences,
limitations and relative rights as may be fixed and determined by resolution of
the Board of Directors, which preferences, limitations and relative rights were
set forth in a designation recorded on March 2, 1994 with the Nebraska Secretary
of State's office, said designation has, with the unanimous vote and consent of
the holder of all issued and outstanding Series $25,000.00 Par Value Convertible
Preferred Shares, been amended to eliminate the
59
convertibility of the shares, to redesignate the shares as Series $25,000.00 Par
Value Preferred Shares and to provide the shares with the preferences,
limitations and relative rights as set forth on the attached Exhibit "B", which
is incorporated herein by reference; and (d) 765 shares of Senior
Non-Convertible Preferred Shares having a par value of $1.00 per share and such
preferences, limitations and relative rights as may be fixed and determined by
resolution of the Board of Directors, which preferences, limitations and
relative rights were determined by the Board of Directors by resolution dated
the 25th day of January, 1996 and are set forth in the attached designation
identified as Exhibit "C" which is incorporated herein by reference.
3. This Amendment to the Articles of Incorporation was adopted by the
unanimous vote and consent of the shareholder(s) on the 25th day of January,
1996.
4. The number of shares of the Corporation outstanding as of the adoption
of this Amendment was 600 shares of its common having a par value of $10.00 per
share, 150 shares of its Series $50,000.00 Par Value Convertible Preferred
Shares and 300 shares of its Series $25,000.00 Par Value Convertible Preferred
Shares. Each of said common shares was entitled to vote separately thereon. Each
of the Series $50,000.00 Par Value Convertible Preferred Shares was entitled to
vote separately thereon. Each of the Series $25,000.00 Par Value Convertible
Preferred Shares was entitled to vote separately thereon.
5. The holders of 600 of the Corporation's common shares voted for such
Amendment and no holder of any common shares voted against such Amendment. The
holder of 150 of the Corporation's Series $50,000.00 Par Value Convertible
Preferred Shares voted for and consented to the Amendment and no holder of such
Series voted against such Amendment. The holder of 300 shares of the
Corporation's Series $25,000.00 Par Value Convertible Preferred Shares voted for
and consented to the Amendment and no holder of such Series voted against such
Amendment. The number of votes cast for the Amendment by each voting group was
sufficient for approval by that voting group.
-2-
60
IN WITNESS WHEREOF, these Articles of Amendment have been executed by and
on behalf of the Corporation by its President on this 25th day of January, 1996.
NEBCO EVANS DISTRIBUTION, INC.
By /s/ Raymond Marshall
----------------------------------
Raymond Marshall, President
-3-
61
NEBCO EVANS DISTRIBUTION, INC.
Series $50,000 Par Value Preferred Shares
[Amended January 1996]
The NEBCO EVANS Distribution, Inc. Series $50,000 Par Value Preferred
Shares (Series) shall consist of 150 shares, $50,000.00 par value, each having
the following rights and preferences.
1. Dividends. The holders of record of shares of this Series shall be
entitled to receive when and as declared by the Board of Directors out of funds
legally available therefore, cash dividends at the rate of $5,500.00 per share
per annum payable monthly on such dates as may from time to time be determined
by the Board of Directors, in preference to and in priority over dividends upon
the common shares or upon the Series $25,000 Par Value Preferred Shares of the
Corporation but not in priority over dividends upon the Senior Non-Convertible
Preferred Shares of the Corporation. Dividends on each share of this Series
shall accumulate, whether or not declared, from the date of its issuance. The
holders of shares of this Series shall not be entitled to any dividends other
than the cash dividend provided for in this Section 1. No dividends shall be
declared or paid on the common shares or any other shares of the Corporation
except the Senior Non-Convertible Preferred Shares during any period when the
Corporation has failed to pay a monthly dividend on this Series for any
preceding month.
2. Liquidation. In the event of a liquidation, dissolution or winding up
of the Corporation, the holders of shares of this Series shall be entitled to
receive out of the assets of the Corporation an amount equal to $50,000.00 per
share, plus any accumulated and unpaid dividends thereon to the date fixed for
distribution, in preference to and in priority over any such distribution upon
the common shares or upon the Series $25,000 Par Value Preferred Shares of the
Corporation but not in priority over any such distribution upon the Senior
Non-Convertible Preferred Shares of the Corporation.
3. Redemption. This Series may be redeemed, in whole or in part, at the
option of the Corporation by resolution of its Board of Directors, at any time
and from time to time, at the redemption price per share of $50,000.00 plus any
accumulated and unpaid dividends thereon at the date fixed for redemption. In
the event that less than the entire number of shares of this Series outstanding
is at any time redeemed by the Corporation, the shares to be redeemed shall be
selected by lot in a manner determined by the Board of Directors of the
Corporation unless they shall have been advised by the unanimous agreement of
the holders of all shares of this Series to effect the redemption in some other
manner.
-1-
EXHIBIT "A"
62
Not less than sixty (60) nor more than seventy-five (75) days prior to the
date fixed for any redemption of this Series or any part thereof, a notice
specifying the time and place of such redemption shall be given by first class
mail, postage prepaid, to the holders of record of the shares of this Series
selected for redemption at their respective addresses as the same shall appear
on the books of the Corporation, but no failure to mail such notice or any
defect therein or in the mailing thereof shall affect the validity of the
proceedings for redemption. Any notice which was mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the holders receive the notice.
After the date fixed for the redemption of shares of this Series by the
Corporation, the holders of shares selected for redemption shall cease to be
shareholders with respect to such shares and shall have no interest in or claims
against the Corporation by virtue thereof except the right to receive the monies
payable upon such redemption from the Corporation, without interest thereon,
upon surrender (and endorsement, if required by the Corporation) of their
certificates and the shares represented thereby shall no longer be deemed to be
outstanding.
4. Voting Rights. No holder of this Series shall be entitled to vote on
any matters brought to a vote before the shareholders of the Corporation, except
as otherwise provided by the Business Corporation Act of the State of Nebraska.
5. Consideration for Issuance of Shares. All shares of this Series shall
be deemed to be fully paid and nonassessable upon the issuance thereof.
6. Notice of Holders of Certain Transactions. The Corporation shall cause
a notice to be mailed to the holders of record of shares of this Series at their
respective addresses as the same shall appear on the books of the Corporation,
in case:
a) The Corporation shall declare a dividend (or any other
distribution) on its common shares or other shares;
b) Of any reclassification of capital shares of the Corporation or
of any consolidation or merger to which the Corporation is a party and for which
approval of any shareholders of the Corporation is required, or of the sale or
transfer of all or substantially all of the assets of the Corporation;
c) Of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation.
Such notice shall be mailed at least twenty (20) days prior to the
applicable record date or other date hereinafter referred to and shall specify
(i) the date on which a record is to be taken for the purpose of such dividend,
redemption, distribution of rights or, if a record is not to be taken, the date
as of which the
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holders of common shares of record to be entitled to such dividend, redemption,
distribution or rights are to be determined, or (ii) the date on which, in
connection with such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up, it is expected that holders of common
shares of record shall be entitled to exchange their common shares for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
7. Limitation on Cash Dividends and Distributions on Shares. So long as
any shares of this Series are outstanding, the Corporation may not pay any cash
dividend or make any other distribution in cash on its common shares or any
other shares except its Senior Non-Convertible Preferred Shares.
8. Limitation on Certain Actions. So long as any shares of this Series are
outstanding, the Corporation shall not: (a) authorize, create or issue any other
class or classes of preferred shares or any other shares having rights, powers
or preferences equal to or senior to the shares of this Series except for the
Senior Non-Convertible Preferred Shares, (b) redeem, purchase or otherwise
acquire any shares of its common shares or other shares except the Senior
Non-Convertible Preferred Shares, or (c) merge, consolidate, sell or otherwise
dispose of substantially all of its assets.
9. Conversion. The holders of the shares of this Series shall have no
rights to convert their shares into common shares of the Corporation or any
other shares of the Corporation.
10. No Other Rights. The shares of this Series shall not have any
relative, participating, optional or other special rights or powers other than
as set forth above and in the Articles of Incorporation of the Corporation as
amended.
11. Certificates. Each certificate for shares of this Series shall bear a
legend incorporating a certified copy of this Resolution which shall be
authenticated by the President or Vice President of the Corporation and appended
to each such certificate.
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64
NEBCO EVANS DISTRIBUTION, INC.
Series $25,000 Par Value Preferred Shares
[Amended January 1996]
The NEBCO EVANS Distribution, Inc. Series $25,000 Par Value Preferred
Shares (Series) shall consist of 400 shares, $25,000.00 par value, each having
the following rights and preferences.
1. Dividends. The holders of record of shares of this Series shall be
entitled to receive when and as declared by the Board of Directors out of funds
legally available therefor, cash dividends at the rate of $2,375.00 per share
per annum payable semi-annually on such dates as may from time to time be
determined by the Board of Directors, in preference to and in priority over
dividends upon the common shares but not in priority over dividends upon the
Series $50,000 Par Value Preferred Shares of the Corporation or upon the Senior
Non-Convertible Preferred Shares of the Corporation. Dividends on each share of
this Series shall accumulate, whether or not declared, from the date of its
issuance. The holders of shares of this Series shall not be entitled to any
dividends other than the cash dividend provided for in this Section 1. No
dividends shall be declared or paid on the common shares of the Corporation
during any period when the Corporation has failed to pay a semi-annual dividend
on this Series for any preceding six-month period.
2. Liquidation. In the event of a liquidation, dissolution or winding up
of the Corporation, the holders of shares of this Series shall be entitled to
receive out of the assets of the Corporation an amount equal to $25,000.00 per
share, plus any accumulated and unpaid dividends thereon to the date fixed for
distribution, in preference to and in priority over any such distribution upon
the common shares but not in priority over any such distribution upon the Series
$50,000 Par Value Preferred Shares of the Corporation or upon the Senior
Non-Convertible Preferred Shares of the Corporation.
3. Redemption. This Series may be redeemed, in whole or in part, at the
option of the Corporation by resolution of its Board of Directors, at any time
and from time to time, at the redemption price per share of $25,000.00 plus any
accumulated and unpaid dividends thereon at the date fixed for redemption. In
the event that less than the entire number of shares of this Series outstanding
is at any time redeemed by the Corporation, the shares to be redeemed shall be
selected by lot in a manner determined by the Board of Directors of the
Corporation unless they shall have been advised by the unanimous agreement of
the holders of all shares of this Series to effect the redemption in some other
manner.
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65
Not less than sixty (60) nor more than seventy-five (75) days prior to the
date fixed for any redemption of this Series or any part thereof, a notice
specifying the time and place of such redemption shall be given by first class
mail, postage prepaid, to the holders of record of the shares of this Series
selected for redemption at their respective addresses as the same shall appear
on the books of the Corporation, but no failure to mail such notice or any
defect therein or in the mailing thereof shall affect the validity of the
proceedings for redemption. Any notice which was mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the holders receive the notice.
After the date fixed for the redemption of shares of this Series by the
Corporation, the holders of shares selected for redemption shall cease to be
shareholders with respect to such shares and shall have no interest in or claims
against the Corporation by virtue thereof except the right to receive the monies
payable upon such redemption from the Corporation, without interest thereon,
upon surrender (and endorsement, if required by the Corporation) of their
certificates and the shares represented thereby shall no longer be deemed to be
outstanding.
4. Voting Rights. No holder of this Series shall be entitled to vote on
any matters brought to a vote before the shareholders of the Corporation, except
as otherwise provided by the Business Corporation Act of the State of Nebraska.
5. Consideration for Issuance of Shares. All shares of this Series shall
be deemed to be fully paid and nonassessable upon the issuance thereof.
6. Notice of Holders of Certain Transactions. The Corporation shall cause
a notice to be mailed to the holders of record of shares of this Series at their
respective addresses as the same shall appear on the books of the Corporation,
in case:
a) The Corporation shall declare a dividend (or any other
distribution) on its common shares or other shares;
b) Of any reclassification of capital stock of the Corporation or of
any consolidation or merger to which the Corporation is a party and for which
approval of any shareholders of the Corporation is required, or of the sale or
transfer of all or substantially all of the assets of the Corporation;
c) Of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation.
Such notice shall be mailed at least twenty (20) days prior to the
applicable record date or other date hereinafter referred to and shall specify
(i) the date on which a record is to be taken for the purpose of such dividend,
redemption, distribution of rights or, if a record is not to be taken, the date
as of which
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66
the holders of common shares of record to be entitled to such dividend,
redemption, distribution or rights are to be determined, or (ii) the date on
which, in connection with such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, it is expected that holders of
common shares of record shall be entitled to exchange their common shares for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
7. Limitation on Cash Dividends and Distributions on Shares. So long as
any shares of this Series are outstanding, the Corporation may not pay any cash
dividend or make any other distribution in cash on its common shares.
8. Limitation on Certain Actions. So long as any shares of this Series are
outstanding, the Corporation shall not: (a) authorize, create or issue any other
class or classes of preferred shares or any other shares having rights, powers
or preferences equal to or senior to the shares of this Series except for the
Senior Non-Convertible Preferred Shares and the Series $50,000.00 Par Value
Preferred Shares, (b) redeem, purchase or otherwise acquire any of its common
shares, or (c) merge, consolidate, sell or otherwise dispose of substantially
all of its assets.
9. Conversion. The holders of the shares of this Series shall have no
rights to convert their shares into common shares of the Corporation or any
other shares of the Corporation.
10. No Other Rights. The shares of this Series shall not have any
relative, participating, optional or other special rights or powers other than
as set forth above and in the Articles of Incorporation of the Corporation as
amended.
11. Certificates. Each certificate for shares of this Series shall bear a
legend incorporating a certified copy of this Resolution which shall be
authenticated by the President or Vice President of the Corporation and appended
to each such certificate.
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67
NEBCO EVANS DISTRIBUTION, INC.
Senior Non-Convertible Preferred Shares
The NEBCO EVANS Distribution, Inc. Senior Non-Convertible Preferred Shares
(Senior Non-Convertible Preferred) shall consist of 765 shares, $1.00 par value,
each having the following rights and preferences:
1. Dividends. (a) The holders of record of shares of Senior
Non-Convertible Preferred shall be entitled to receive when and as
declared by the Board of Directors out of funds legally available
therefor, cash dividends at the rate of $6,250.00 per share per annum
payable semi-annually on such dates as may from time to time be determined
by the Board of Directors, in preference to and in priority over dividends
upon the common shares or any other preferred shares of the Corporation
(collectively, the "Junior Shares"). Dividends on each share of Senior
Non-Convertible Preferred shall accumulate, whether or not declared, from
the date of its issuance. The holders of shares of Senior Non-Convertible
Preferred shall not be entitled to any dividends other than the cash
dividend provided for in this Section 1(a). During any period when the
Corporation has failed to pay a semi-annual dividend on the Senior
Non-Convertible Preferred for any preceding six-month period and until all
unpaid dividends payable, whether or not declared, on the outstanding
Senior Non-Convertible Preferred shall have been paid in full or declared
and set apart for payment, the Corporation shall not: (i) declare or pay
dividends, or make any other distributions, on any Junior Shares, other
than dividends or distributions payable in Junior Shares, or (ii) redeem,
purchase or otherwise acquire for consideration any Junior Shares, other
than redemptions, purchases or other acquisitions of Junior Shares in
exchange for any Junior Shares.
(b) Notwithstanding anything in Section 1(a) above to the contrary,
from and after the first date on which any shares of the Senior
Non-Convertible Preferred are issued until the second anniversary of such
date, any
EXHIBIT "C"
68
dividend on the Senior Non-Convertible Preferred accrued and payable as
provided in Section 1(a) above shall be payable by the Corporation, in
lieu of cash, by the issuance of a number of additional shares (or
fractional shares) of Senior Non-Convertible Preferred in respect of each
such share (or fractional share) of Senior Non-Convertible Preferred then
outstanding equal to the dividend then payable on each such share (or
fractional share) of Senior Non-Convertible Preferred (expressed as a
dollar amount) divided by the liquidation value of one share of Senior
Non-Convertible Preferred (expressed as a dollar amount).
2. Liquidation. In the event of a liquidation, dissolution or
winding up of the Corporation, the holders of shares of Senior
Non-Convertible Preferred shall be entitled to receive out of the assets
of the Corporation an amount in cash equal to $50,000.00 per share, plus
any accumulated and unpaid dividends thereon to the date fixed for
distribution, in preference to and in priority over any such distribution
upon Junior Shares.
3. Redemption. The Senior Non-Convertible Preferred may be redeemed,
in whole or in part, at the option of the holder of the shares thereof, in
connection with any repayment of Nebco Evans Holding Company's 12 1/2%
Senior Notes due 2006 (the "Senior Notes") or in the event that the shares
of the Senior Non-Convertible Preferred have been transferred to a trustee
for the holders of the Senior Notes in satisfaction of or as a result of
foreclosure upon the Senior Notes, at the redemption price per share of
$50,000.00 plus any accumulated and unpaid dividends thereon at the date
fixed for redemption. The holders of shares of Senior Non-Convertible
Preferred opting to have the Corporation redeem their shares shall, not
less than ten (10) nor more than sixty (60) days prior to the date that
such holders desire to have their shares redeemed pursuant to this Section
3, provide the Corporation with written notice specifying the desired date
of such redemption, such notice to be sent by first class mail, postage
prepaid, to the Corporation at its registered office in the State of
Nebraska.
After the date fixed for the redemption of shares of Senior
Non-Convertible Preferred, the holders of shares who have opted for
redemption shall cease to be shareholders with respect to such shares and
shall have
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69
no interest in or claims against the Corporation by virtue thereof except
the right to receive the monies payable upon such redemption from the
Corporation, without interest thereon, upon surrender (and endorsement, if
required by the Corporation) of their certificates and the shares
represented thereby shall no longer be deemed to be outstanding.
4. Voting Rights. No holder of shares of Senior Non-Convertible
Preferred shall be entitled to vote on any matters brought to a vote
before the shareholders of the Corporation, except as otherwise provided
by the Business Corporation Law of the State of Nebraska.
5. Consideration for Issuance of Shares. All shares of Senior
Non-Convertible Preferred shall be deemed to be fully paid and
nonassessable upon the issuance thereof.
6. Notice of Holders of Certain Transactions. The Corporation shall
cause a notice to be mailed to the holders of record of shares of Senior
Non-Convertible Preferred at their respective addresses as the same shall
appear on the books of the Corporation, in case:
a. The Corporation shall declare a dividend (or any other
distribution) on its common shares or other shares;
b. Of any reclassification of capital stock of the Corporation
or of any consolidation or merger to which the Corporation is a
party and for which approval of any shareholders of the Corporation
is required, or of the sale or transfer of all or substantially all
of the assets of the Corporation;
c. Of the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation.
Such notice shall be mailed at least twenty (20) days prior to the
applicable record date or other date hereinafter referred to and shall
specify (i) the date on which a record is to be taken for the purpose of
such dividend, redemption, distribution of rights or, if a record is not
to be taken, the date as of which the holders of common shares of record
to be entitled to such dividend, distribution, redemption or rights are to
be determined, or (ii) the date on which, in connection with such
reclassification, consolidation, merger, sale,
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70
transfer, dissolution, liquidation or winding up, it is expected that
holders of common shares of record shall be entitled to exchange their
common shares for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.
7. Conversion. The holders of the shares of Senior Non-Convertible
Preferred shall have no rights to convert their shares into common shares
of the Corporation or into shares of any other capital shares of the
Corporation.
8. No Other Rights. The shares of Senior Non-Convertible Preferred
shall not have any relative, participating, optional or other special
rights or powers other than as set forth above and in the Articles of
Incorporation.
9. Certain Restrictions. Notwithstanding anything to the contrary in
this Certificate of Designation, the Senior Non-Convertible Preferred and
the powers, designations, preferences and relative, participating,
optional and other rights thereof, and the qualifications, limitations and
restrictions thereon as set forth in this Certificate of Designation are
subject to certain restrictions set forth in a Credit Agreement, dated as
of January 25, 1996, among the Corporation, Bank of America National Trust
and Savings Association, Bank of America Illinois and The Other Financial
Institutions Party Thereto, as arranged by BA Securities, Inc., in an
Investors Agreement, dated as of January 25, 1996, by and among DLJ
Merchant Banking Partners, L.P., DLJ International Partners, C.V., DLJ
Offshore Partners, C.V., DLJ Merchant Banking Funding, Inc., Orkla a.s.,
Holberg Industries, Inc., NED Holdings, Inc. and Nebco Evans Holding
Company, in the Indenture relating to the Senior Notes, dated as of
January 25, 1996, by and between Nebco Evans Holding Company and IBJ
Schroder Bank & Trust Company, as Trustee, and in a Pledge Agreement,
dated as of January 25, 1996, between Nebco Evans Holding Company and IBJ
Schroder Bank & Trust Company, as Agent.
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71
10. Certificates. Each certificate for shares of Senior
Non-Convertible Preferred shall bear a legend incorporating a certified
copy or this Resolution which shall be authenticated by the President or
Vice President of the Corporation and appended to each such certificate.
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72
APR 9 1997 11:05am
STATE OF NEBRASKA
SECRETARY'S OFFICE
Received filed and recorded on
film roll no. 97.9
-------------------
at page 1143
-------------------------
/s/ [ILLEGIBLE] 66941
---------------------------------
Secretary of State
By /s/ [ILLEGIBLE] $30.00 pd
------------------------------
ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF
NEBCO EVANS DISTRIBUTION, INC.
NEBCO EVANS Distribution, Inc. hereby adopts the following Articles of
Amendment to its Articles of Incorporation.
1. The Corporation's name is NEBCO EVANS Distribution, Inc.
2. NEBCO EVANS Distribution, Inc. hereby amends Article First of its
Articles of Incorporation to read as follows in its entirety:
FIRST: The name of the Corporation is AmeriServe Food Distribution,
Inc.
3. The Board of Directors of the Corporation recommended this amendment to
the shareholders and it was adopted by the unanimous written consent of all
shareholders entitled to vote with respect thereto on the 28th day of February,
1997.
4. The number of shares of the Corporation outstanding as of the adoption
of this amendment entitled to vote with respect thereto was 600 shares of its
common having a par value of $10.00 per share. The holders of 600 shares of the
Corporation's common shares having a par value of $10.00 per share voted for
such amendment and no holders of any common shares voted against such amendment.
The number of votes cast for the amendment by the only group entitled to vote
with respect thereto was sufficient for approval of the amendment.
IN WITNESS WHEREOF, these Articles of Amendment have been executed by and
on behalf of the Corporation by its President on this 12th day of March, 1997.
NEBCO EVANS DISTRIBUTION, INC.
By /s/ Raymond Marshall
---------------------------
Raymond Marshall, President
73
To:
ALLEN J. BEERMANN
Secretary of State
State Capitol Building
Lincoln, Nebraska 68509
CERTIFICATE OF REVIVAL
KNOW ALL MEN BY THESE PRESENTS:
Now comes Gerald Toohey and J. Sorg , who on
------------------- -------------------------------
name of PRESIDENT name of SECRETARY OR TREASURER
March 1, 1972, were and at the filing hereof are the duly elected, qualified and
acting President and Secretary of
------------------ ----------------------------------
MUST BE PRESIDENT MUST BE SECRETARY OR TREASURER
Nebraska Concession Supply, Inc., located at
- -------------------------------------------------
name of corporation
1102 Capitol Avenue, Omaha, Nebraska, a corporation duly organized under
- --------------------------
city
and by virtue of the laws of the State of Nebraska, and for the purposes of
reviving or renewing said corporation does hereby certify, state and affirm:
1. That the existence of this corporation became inoperative on August 3,
1971, because of dissolution by the Secretary of State for non-payment of taxes
2. That this corporation was duly and regularly organized under the laws
of the State of Nebraska.
3. That the name of this corporation is Nebraska Concession Supply, Inc.
----------------------------------
(must be the correct corporate name)
4. The street address of the registered office is: