EXHIBIT (3)(i)
RESTATED
CERTIFICATE OF INCORPORATION
OF
SUPERVALU INC.
SUPERVALU INC., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of the corporation is SUPERVALU INC.
2. This corporation was originally incorporated under the name of Winston
and Newell Co. by the filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware on
December 28, 1925.
3. This corporation's Restated Certificate of Incorporation as heretofore
amended is hereby restated in its entirety to read as set forth on the
attached Exhibit A.
4. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the currently
existing Restated Certificate of Incorporation of this corporation as
heretofore amended or supplemented and there is no discrepancy between
those provisions and the provisions of this Restated Certificate of
Incorporation.
5. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors of this corporation in accordance with Section 245
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said SUPERVALU INC. has caused this Certificate to be
signed by David L. Boehnen, its Senior Vice President, and attested by Teresa H.
Johnson, its Secretary, this 13th day of April 1994.
SUPERVALU INC.
By /s/David L. Boehnen
---------------------------
David L. Boehnen
Senior Vice President
ATTEST:
By /s/Teresa H. Johnson
-------------------------
Teresa H. Johnson
Secretary
RESTATED CERTIFICATE OF INCORPORATION
OF
SUPERVALU INC.
ARTICLE FIRST. The name of this Corporation is SUPERVALU INC.
ARTICLE SECOND. Its principal office in the State of Delaware is to be
located at 1209 Orange Street in the City of Wilmington, County of New Castle,
and the name and address of its resident agent at such address is The
Corporation Trust Company.
ARTICLE THIRD. The purpose of the Corporation is to engage in any lawful
act or activity which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE FOURTH. Section 1. Authorized Classes of Stock. That the total
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number of shares of stock which this Corporation is authorized to issue is
201,000,000 shares, of which 200,000,000 shares of the par value of $1.00 per
share are designated Common Stock and 1,000,000 shares of no par value are
designated Preferred Stock (herein referred to as "Preferred Stock"). Shares of
any class of stock of the Corporation may be issued for such consideration and
for such corporate purposes as the Board of Directors may from time to time
determine.
Section 2. Description of capital Stock. The following is a description of
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each of the classes of capital stock which the Corporation has authority to
issue with the designations, preferences, voting powers and participating,
optional or other special rights and the qualifications, limitations or
restrictions thereof.
PREFERRED STOCK
A. Rights and Restrictions of Preferred Stock. Authority is hereby
------------------------------------------
expressly vested in the Board of Directors of the Corporation, subject to the
provisions of this Article Fourth and to the limitations prescribed by law, to
authorize the issue from time to time of one or more series of Preferred Stock
and with respect to each such series to fix by resolution or resolutions adopted
by the affirmative vote of a majority of the whole Board of Directors providing
for the issue of such series the voting powers, full or limited, if any, of the
shares of such series and the designations, preferences and relative,
participating, optional or other special rights and the qualifications,
limitations or restrictions thereof. The authority of the Board of Directors
with respect to each series shall include, but not be limited to, the
determination or fixing of the following:
(1) The number of shares constituting such series and the designation of
such series.
(2) The dividend rate of such series, the conditions and dates upon which
such dividends shall be payable, the relation which such dividends shall
bear to the dividends payable on any
other class or classes or series of the Corporation's capital stock, and
whether such dividends shall be cumulative or noncumulative.
(3) Whether the shares of such series shall be subject to redemption by the
Corporation at the option of either the Corporation or the holder or both
or upon the happening of a specified event, and, if made subject to any
such redemption, the times or events, prices and other terms and conditions
of such redemption.
(4) The terms and amount of any sinking fund provided for the purchase or
redemption of the shares of such series.
(5) Whether or not the shares of such series shall be convertible into, or
exchangeable for, at the option of either the holder or the Corporation or
upon the happening of a specified event, shares of any other class or
classes or of any other series of the same or any other class or classes of
the Corporation's capital stock, and, if provision be made for conversion
or exchange, the times or events, prices, rates, adjustments, and other
terms and conditions of such conversions or exchanges.
(6) The restrictions, if any, on the issue or reissue of any additional
Preferred Stock, including increases or decreases in the number of shares
of any series subsequent to the issue of shares of that series.
(7) The rights of the holders of the shares of such series upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation.
(8) Any right to vote with holders of shares of any other series or class
and any right to vote as a class, either generally or as a condition to
specified corporate action, in addition to any voting powers required by
law.
COMMON STOCK
B. Rights and Restrictions of Common Stock. The holders of the Common
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Stock shall have and possess all rights as stockholders of the Corporation,
except as such rights may be limited by the preferences, rights, limitations and
restrictions of the Preferred Stock. Subject to provisions of a resolution or
resolutions of the Board of Directors establishing a series of Preferred Stock,
dividends may be declared by the Board of Directors and paid from time to time
out of any funds legally available there for. In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation, all assets and
funds of the Corporation remaining after paying all amounts payable to the
holders of Preferred Stock, as provided by a resolution or resolutions of the
Board of Directors establishing a series of Preferred Stock, shall be
distributed to the holders of Common Stock ratably according to the number of
shares of Common Stock held.
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OTHER PROVISIONS
C. Preemptive Rights. No holders of shares of any class or series of
-----------------
this Corporation shall have any preemptive rights to subscribe for any shares of
any class or series of stock of this Corporation, whether now or hereafter
authorized, or for any obligations convertible into shares of any class or
series of stock of this Corporation, whether now or hereafter authorized.
D. voting by Classes. Except as otherwise required by law or by the
provisions of a resolution or resolutions of the Board of Directors establishing
a series of Preferred Stock, all matters shall be voted upon without distinction
as to classes or series of stock.
ARTICLE FIFTH. In furtherance, and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
(a) To make, amend, alter, change, add to or repeal bylaws of this
Corporation, without any action on the part of the stockholders. The
bylaws made by the directors may be amended, altered, changed, added to or
repealed by the stockholders. Any specific provision in the bylaws
regarding amendment thereof shall be controlling.
(b) By resolution passed by a majority of the whole board, to designate two
or more directors to constitute an Executive Committee, which committee
shall have and exercise (except when the Board of Directors shall be in
session) such powers and rights of the Board of Directors in the management
of the business and affairs of this Corporation as may be provided in the
bylaws or in said resolution, and shall have power to authorize the seal of
this Corporation to be affixed to all papers which may require it.
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ARTICLE SIXTH. Section 1. Special Vote for Certain Combinations. Except
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as otherwise expressly provided in Section 2 of this Article:
(i) any merger or consolidation of the Corporation with or into any
other corporation;
(ii) any sale, lease, exchange or other disposition of all or any
substantial part of the assets of the Corporation to or with any other
corporation, person or other entity;
(iii) the issuance or transfer of any securities of the Corporation to
any other corporation, person or other entity in exchange for assets or
securities or a combination thereof (except assets or securities or a
combination thereof so acquired in a single transaction or a series of
related transactions having an aggregate fair market value of less than
$5,000,000); or
(iv) the issuance or transfer of any securities of the Corporation to
any other corporation, person or other entity for cash,
shall require the affirmative vote of the holders of
(a) at least 75% of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors, considered for the purposes of this Article as one class,
and
(b) at least a majority of the outstanding shares of capital
stock of the Corporation which are not beneficially owned by such
corporation, person or other entity,
if, as of the record date for the determination of stockholders entitled to
notice thereof and to vote thereon, such other corporation, person or entity is
the beneficial owner, directly or indirectly, of 5% or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, considered for the purposes of this Article as one class.
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that some lesser percentage may be specified by law or in
any agreement with any national securities exchange.
Section 2. Special Vote Not Required. The provisions of this Article shall
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not apply to any transaction described in clauses (i), (ii), (iii) or (iv) of
Section 1 of this Article, (i) with another corporation if a majority, by vote,
of the outstanding shares of all classes of capital stock of such other
corporation entitled to vote generally in the election of directors, considered
5
for this purpose as one class is owned of record or beneficially by the
Corporation and/or its subsidiaries; or (ii) with another corporation, person or
other entity if the Board of Directors of the Corporation shall by resolution
have approved a memorandum of understanding with such other corporation, person
or other entity with respect to and substantially consistent with such
transaction prior to the time such other corporation, person or other entity
became the beneficial owner, directly or indirectly, of 5% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors.
Section 3. Beneficial Ownership. For the purposes of this Article, a
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corporation, person or other entity shall be deemed to be the beneficial owner
of any shares of capital stock of the Corporation (i) which it has the right to
acquire pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise, or (ii) which are beneficially owned,
directly or indirectly (including shares deemed owned through application of
clause (i) above), by any other corporation, person or other entity (a) with
which it or its "affiliate" or "associate" (as defined below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of capital stock of the Corporation or (b) which is its "affiliate" or
"associate" as those terms were defined in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934 as in effect on May 1,
1976. For the purposes of this Article, the outstanding shares of any class of
capital stock of the Corporation shall include shares deemed owned through the
application of clauses (i) and (ii) of this Section 3 but shall not include any
other shares which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise.
Section 4. Determination by Board of Directors. The Board of Directors of
--------- -----------------------------------
the Corporation shall have the power and duty to determine for the purposes of
this Article, on the basis of information then known to it, whether (i) any
corporation, person, or other entity beneficially owns, directly or indirectly,
5% or more of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, or is an "affiliate" or
an "associate" (as defined above) of another, (ii) any proposed sale, lease,
exchange or other disposition of part of the assets of the Corporation involves
a substantial part of the assets of the Corporation, (iii) assets or securities,
or a combination thereof, to be acquired in exchange for securities of the
Corporation, have an aggregate fair market value of less than $5,000,000 and
whether the same are proposed to be acquired in a single transaction or a series
of related transactions, and (iv) the memorandum of understanding referred to
above is substantially
6
consistent with the transaction to which it relates. Any such determination by
the Board shall be conclusive and binding for all purposes of this Article.
Section 5. Amendment. Notwithstanding any other provision of this
--------- ---------
Certificate of Incorporation or the Bylaws (and in addition to any other vote
that may be required by law, this Certificate of Incorporation or the Bylaws),
there shall be required to amend, alter, change, or repeal, directly or
indirectly, this Article Sixth the affirmative vote of (i) at least 75% of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) and (ii) at least a majority of the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class), exclusive of all voting stock of the
Corporation beneficially owned, directly or indirectly, by any corporation,
person or entity which is, as of the record date for the determination of
stockholders entitled to notice of such amendment, alteration, change or repeal
and to vote thereon, the beneficial owner, directly or indirectly, of 5% or more
of the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
ARTICLE SEVENTH. The Corporation shall have the right, subject to any
express provisions or restrictions contained in the Certificate of Incorporation
or the Bylaws, from time to time to amend the Certificate of Incorporation or
any provision thereof in any manner now or hereafter provided by law.
ARTICLE EIGHTH. A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided, however, that this Article Eighth shall not
eliminate or limit the liability of a director to the extent provided by
applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) under
section 174 of the General Corporation Law of the State of Delaware; (iv) for
any transaction from which the director derived an improper personal benefit; or
(v) for any act or omission occurring prior to the date when this Article Eighth
became effective. Any repeal or modification of the foregoing provisions of this
Article Eighth by the stockholders of the Corporation shall not adversely affect
any right or protection of a director of the Corporation existing at the time of
such repeal or modification.
7
CERTIFICATE OF DESIGNATIONS
of
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
of
SUPER VALU STORES, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
-----------------------------------
Super Valu Stores, Inc., a corporation organized and existing under
the General Corporation Law of the state of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on April 12, 1989:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, no par value (the "Preferred Stock"), of the Corporation and hereby
states the designation and number of shares, and fixes the relative rights,
preferences, and limitations thereof as follows:
Series B Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall
----------------------
be designated as "Series B Junior Participating Preferred Stock" (the "Series B
Preferred Stock") and the number of shares constituting the Series B Preferred
Stock shall be 100,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
--------
the number of shares of Series B Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series B Preferred Stock with respect to dividends,
the holders of shares of Series B Preferred Stock, in preference to
the
8
holders of Common Stock, par value $1.00 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September
and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series B Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $10 or
(b) subject to the provision for adjustment hereinafter set forth,
1,000 times the aggregate per share amount of all cash dividends, and
1,000 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of
Series B Preferred Stock. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on
the Series B Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $10 per share on the Series B
Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
9
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends
on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of shares of Series B Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares
of Series B Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series B Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series B
-------------
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall
at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series B Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of
10
Preferred Stock or any similar stock, or by law, the holders of shares
of Series B Preferred Stock and the holders of shares of Common Stock
and any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series B Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series B Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series B Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series B Preferred Stock, except dividends paid ratably
on the Series B Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series B Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series B Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire
11
for consideration any shares of Series B Preferred Stock, or any
shares of stock ranking on a parity with the Series B Preferred
Stock, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B Preferred Stock
-----------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
--------------------------------------
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of shares of Series B
Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series B
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Stock, except distributions made ratably on the Series B
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a
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subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the aggregate amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event under the proviso
in clause (1) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
---------------------------
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series B Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series B Preferred Stock
-------------
shall not be redeemable.
Section 9. Rank. The Series B Preferred Stock shall rank, with
----
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
---------
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series B Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series B Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is
13
executed on behalf of the Corporation by one of its Vice Presidents and attested
by its Secretary this 25th day of April, 1989.
/s/ William C. Hunt
---------------------------------------
Vice President
Attest:
/s/ James A. Strom
- - - ----------------------------------
Secretary
14
CERTIFICATE OF DESIGNATIONS
of
4.50% PREFERRED STOCK
of
SUPERVALU INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
SUPERVALU INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (hereinafter called the "Corporation"),
hereby certifies that the following resolution was duly adopted by the Pricing
Committee (the "Committee") of the Board of Directors of the Corporation as
required by Section 151 of the General Corporation Law by a written action dated
February 14, 1994:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors") in accordance with the provisions of the Certificate of
Incorporation of the Corporation (hereinafter, as amended and restated to date,
called the "Certificate of Incorporation"), and pursuant to the authority
granted to and vested in the Committee by the Board of Directors at a meeting
duly held on December 15, 1993, the Committee hereby creates a series of
Preferred Stock, no par value (the "Preferred Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Section 1. Designation and Amount. The shares of such series shall
-----------------------
be designated as "4.50% Preferred Stock" (hereinafter called this "Series") and
the number of shares constituting this Series shall be 6,000. Such number of
shares may be increased or decreased by resolution of the Board of Directors,
the Committee or any duly authorized committee of the Board of Directors;
provided, that no decrease shall reduce the number of shares of this Series to a
- - - --------
number less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into shares of this Series.
Section 2. Dividends.
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(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior to this Series with
respect to dividends, the holders of shares of this Series, in preference to the
holders of Common Stock, par value $1.00 per share (the "Common Stock"), of the
15
Corporation, and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the fifteenth day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of shares of this
Series, in an amount per share equal to $45.00 per annum. The amount of the
dividend for any period less than a full quarter shall be computed on the basis
of a 360-day year of twelve 30-day months and the actual number of days elapsed
in the period.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of this Series from the date of original issue of such shares. Accrued
but unpaid dividends shall not bear interest. Dividends paid on the shares of
this Series in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding. The Board of
Directors or a duly authorized committee of the Board of Directors may fix a
record date for the determination of holders of shares of this Series entitled
to receive payment of a dividend declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
(C) Dividends payable on shares of this Series are subject, in certain
circumstances, to the Corporation's right of offset as set forth in that certain
Agreement and Plans of Reorganization dated February 14, 1994 (the "Agreement")
by and among the Corporation, Clyde Evans Markets, Inc. and the shareholders of
Clyde Evans Markets, Inc., a copy of which is on file at the principal executive
offices of the Corporation, and any dividends so set-off by the Corporation
shall not be deemed to be in arrears
Section 3. Voting Rights. The holders of shares of this Series shall
--------------
have the following voting rights:
(A) Each share of this Series shall entitle the holder thereof to one
vote on all matters submitted to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of this Series and the holders of shares of Common
Stock and any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of this Series shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth
16
herein) for taking any corporate action.
Section 4. Certain Restrictions.
---------------------
(A) Whenever quarterly dividends payable on this Series as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends,
whether or not declared, on shares of this Series outstanding shall have been
paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to this Series;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon
liquidation, dissolution or winding up) with this
Series, except dividends paid ratably on this
Series and all such parity stock on which
dividends are payable or in arrears in proportion
to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to this Series, provided
that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to this Series;
or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of this Series, or any shares
of stock ranking on a parity with this Series, except
in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors
or a duly authorized committee of the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors or a duly authorized
committee of the
17
Board of Directors, after consideration of the
respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of this Series redeemed,
------------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
---------------------------------------
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to this Series unless, prior thereto, the holders of shares of this
Series shall have received $1,000.00 per share, plus an amount equal to accrued
and unpaid dividends thereon, whether or not declared, to the date of such
payment, or (2) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with this Series,
except distributions made ratably on this Series and all such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. For the purposes of
this Section 6, a voluntary or involuntary liquidation, dissolution or winding
up of the Corporation shall not include the consolidation or merger of the
Corporation with or into any other corporation, or a merger of another
corporation with or into the Corporation, or any sale, lease or conveyance of
all or any part of the property or business of the Corporation.
Section 7. Redemption at the Option of the Corporation.
--------------------------------------------
(A) The shares of this Series shall not be redeemable at the option of
the Corporation prior to the fifth anniversary of the date of first issuance of
shares of this Series. Subject to the restrictions set forth in Section 4, the
Corporation, at its option, may redeem shares of this Series, as a whole or in
part, at any time or from time to time on or after the fifth anniversary of
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the date of first issuance of shares of this Series, at a redemption price equal
to $1,000.00 per share, plus, in each case, accrued and unpaid dividends
thereon, whether or not declared, to the date fixed for redemption.
(B) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors or any duly authorized committee of the
Board of Directors, and the shares to be redeemed shall be determined by lot,
pro rata or by any other method as may be determined by the Board of Directors
or any duly authorized committee of the Board of Directors in its sole
discretion.
(C) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of this Series
to be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on the redemption
date.
(D) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the applicable redemption price), dividends on the
shares of this Series so called for redemption shall cease to accrue, and said
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the applicable redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares so
redeemed (properly endorsed or assigned for transfer), such shares shall be
redeemed by the Corporation at the redemption price. In case fewer than all the
shares represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares without cost to the holder thereof.
(E) The right of the Corporation to redeem shares of this Series, and
the right of the holder of such shares to receive the redemption price therefor,
pursuant to this Section 7 are, in certain circumstances, subject to certain
restrictions (including the Corporation's right of offset) set forth in the
Agreement, a copy of which is on file at the principal executive offices of the
Corporation.
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Section 8. Redemption at the Option of the Holder.
---------------------------------------
(A) The shares of this Series shall not be redeemable at the option of
any holder thereof prior to the fifth anniversary of the date of first issuance
of shares of this Series. Subject to the restrictions set forth in Section 4,
any holder of shares of this Series, at the option of such holder, may require
the Corporation to redeem shares of this Series held by such holder, as a whole
or in part, at any time or from time to time on or after the fifth anniversary
of the date of first issuance of shares of this Series, at a redemption price
equal to $1,000.00 per share, plus, in each case, accrued and unpaid dividends
thereon, whether or not declared, to the date fixed for redemption; provided,
--------
however, that a holder of shares of this Series may exercise the right to
require the Corporation to redeem such holder's shares pursuant to this Section
8 not more than one time in any calendar year; and provided further, that no
-------- -------
such request by a holder of shares of this Series shall be for less than the
lesser of (i) ten percent of the number of shares of this Series originally
issued to such holder by the Corporation, or (ii) all the shares of this Series
owned of record by such holder.
(B) For a holder of shares of this Series to exercise the right to
require the Corporation to redeem such holder's shares pursuant to this Section
8, such holder shall give notice of such exercise by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the redemption
date, to the Corporation at its principal executive offices (which, until
further notice by the Corporation, shall be 11840 Valley View Road, Eden
Prairie, Minnesota 55344) to the attention of the Corporate Secretary. Each
such notice shall state: (i) the name of such holder, (ii) the redemption date
and (iii) the number of shares of this Series to be redeemed from such holder.
(C) Not later than 20 days after receipt by the Corporation of a
notice from a holder of shares of this Series pursuant to Section 8(B), the
Corporation shall give notice by first class mail, postage prepaid, to such
holder confirming the redemption date and the number of shares to be redeemed
from such holder and stating (i) the redemption price, (ii) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price and (iii) that dividends on the shares to be redeemed will
cease to accrue on the redemption date.
(D) Notice having been mailed by the Corporation as aforesaid, from
and after the redemption date (unless default shall be made by the Corporation
in providing money for the payment of the applicable redemption price),
dividends on the shares of this Series so put for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding, and all
rights of the holder thereof as a stockholder of the Corporation (except the
right to receive from the Corporation the applicable redemption price) shall
cease. Upon surrender of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer),
20
such shares shall be redeemed by the Corporation at the redemption price. In
case fewer than all the shares represented by any such certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(E) The right of a holder of shares of this Series to require the
Corporation to redeem such holder's shares, and the right of such holder to
receive the redemption price therefor, pursuant to this Section 8 are, in
certain circumstances, subject to certain restrictions (including the
Corporation's right of offset) set forth in the Agreement, a copy of which is on
file at the principal executive offices of the Corporation.
Section 9. Rank. Any stock of any class or classes of the
-----
Corporation shall be deemed to rank:
(A) Prior to the shares of this Series, either as to dividends or upon
liquidation, dissolution or winding up, if the holders of such class or classes
shall be entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of this Series;
(B) On a parity with shares of this Series, either as to dividends or
upon liquidation, dissolution or winding up, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share or sinking
fund provisions, if any, be different from those of this Series, if the holders
of such stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as between the
holders of such stock and the holders of shares of this Series; and
(C) Junior to shares of this Series, either as to dividends or upon
liquidation, dissolution or winding up, if such class shall be Common Stock or
if the holders of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in preference or priority to the
holders of shares of such class or classes. The outstanding shares of the
Corporation's Series B Junior Participating Preferred Stock shall be deemed to
rank junior to the outstanding shares of this Series with respect to the payment
of dividends and upon liquidation, dissolution or winding up.
21
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by one of its Vice Presidents and attested by its
Secretary this 14th day of February, 1994.
/s/David L. Boehnen
-------------------------------------
Senior Vice President
Attest:
/s/Teresa H. Johnson
- - - ------------------------
Secretary
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