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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
YUCAIPA HOLDING COMPANY
1. The name of this corporation is:
Yucaipa Holding Company
2. The address of its registered office in the State of Delaware is 229
South State Street in the City of Dover, County of Kent. The name of its
registered agent at such address is The Prentice-Hall Corporation System, Inc.
3. The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have
authority to issue is one hundred thousand (100,000); and the par value of each
share shall be ($0.01).
5. The name and mailing address of the incorporator is:
Sabrina W. Muntz
LATHAM & WATKINS
555 South Flower Street
Los Angeles, California 90071
6. 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
bylaws of the corporation.
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7. Election of directors need not be by written ballot unless the bylaws of
the corporation shall so provide.
8. No director of this corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 the law, (iii) under Section 174 of the General
Corporation Law of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, herein declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 20th day of April, 1989.
/s/ SABRINA W. MUNTZ
---------------------------------
Sabrina W. Muntz
Incorporator
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
YUCAIPA HOLDING COMPANY
YUCAIPA HOLDING COMPANY, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That, by written consent of the Board of Directors of said
corporation as of June 7, 1989, resolutions were duly adopted setting forth the
proposed amendments to the Certificate of Incorporation of said corporation.
The resolutions setting forth the proposed amendments are as follows:
RESOLVED, that Paragraph 1 of the Certificate of Incorporation of
this corporation be amended to read as follows:
"1. The name of this corporation is: Food 4 Less Supermarkets,
Inc."
RESOLVED, that Paragraph 4 of the Certificate of Incorporation of
this corporation be amended to read as follows:
"4. The total number of shares of stock which the corporation
shall have authority to issue is one million one hundred thousand
(1,100,000); and the par value of each share shall be ($0.01)."
SECOND: That said corporation has not received any payment or other
consideration for any of its stock.
THIRD: That the foregoing amendments to the Certificate of Incorporation
have been approved by the Board
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of Directors of this corporation by unanimous written consent,
pursuant to Section 241 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, YUCAIPA HOLDING COMPANY has caused this certificate to
be signed by its Chairman of the Board and attested by its Secretary as of the
7th day of June, 1989.
YUCAIPA HOLDING COMPANY
By: /s/ RONALD W. BURKLE
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Ronald W. Burkle
Chief Executive Officer
ATTEST:
/s/ MARK A. RESNIK
- - -----------------------------
Mark A. Resnik, Secretary
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
FOOD 4 LESS SUPERMARKETS, INC.
FOOD 4 LESS SUPERMARKETS, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That, by written consent of the Board of Directors of said
corporation as of June 19, 1989, a resolution was duly adopted setting
forth a proposed amendment to the Certificate of Incorporation of said
corporation. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that Paragraph 4 of the Certificate of Incorporation of
this corporation be amended to read as follows:
"4. The total number of authorized shares of the Corporation is
as follows:
1,100,000 shares of Common Stock, par value $.01 per share; and
899,606 shares of Preferred Stock, par value $.01 per share.
The Preferred Stock shall be subject to the following preferences, rights
and privileges:
A. Designation of Shares.
----------------------
The preferred shares shall be designated and known as the "$5.67
Convertible Preferred Stock" (hereinafter referred to as the "Preferred
Stock").
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B. Number of Shares.
-----------------
The number of shares constituting the Preferred Stock shall be 899,606
shares.
C. Cumulative, Non-Participating Cash Dividends.
---------------------------------------------
The holders of the outstanding Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors of the Corporation, out
of any assets at the time legally available therefor, dividends at the rate of
$.54 per share of the Preferred Stock per annum, and no more, payable in cash
on each anniversary of the original issuance of the Preferred Stock. Such
dividends shall accrue ratably throughout the Corporation's Fiscal Year whether
or not earned or declared. Such dividends shall be cumulative so that if such
dividends in respect of any previous annual dividend period and for the current
annual dividend period at said rate per share per annum shall not have been
paid on or declared and set apart for all shares of the Preferred Stock at the
time outstanding, the deficiency shall be fully paid on or declared and set
apart for such shares before the Corporation makes any Distribution (as
hereinafter defined) to holders of Common Stock. "Distribution" in this
Paragraph C means the transfer of cash or property without consideration,
whether by way of dividend or otherwise or the purchase or redemption of shares
of the Corporation for cash or property, including any such transfer, purchase,
or redemption by a subsidiary of the Corporation. The time of any Distribution
by way of dividend shall be the date of declaration thereof and the time of any
Distribution by purchase or redemption of shares shall be the day cash or
property is transferred by the Corporation, whether or not pursuant to a
contract of an earlier date; provided that where a negotiable debt security is
issued in exchange for shares the time of the Distribution is the date when the
Corporation acquires the shares in such exchange.
D. Liquidation Preferences.
------------------------
In the event of a voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation, the holders of the Preferred Stock shall be
entitled to receive after payment of creditors, out of the assets of the
Corporation, whether such assets are capital or surplus of any nature, an
amount equal to $5.67 per share of Preferred Stock and a further amount equal
to any dividends accrued and unpaid thereon, as provided in Paragraph C hereof,
to the date that payment is made available to the holders of Preferred Stock
whether earned or declared or not, and no more, before any payment shall be
made or any assets distributed to the holders of Common Stock.
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If upon such liquidation, dissolution, or winding up, the assets thus
distributed among the holders of Preferred Stock shall be insufficient to
permit the payment to such holders of the full preferential amounts aforesaid,
then the entire assets of the Corporation to be distributed shall be
distributed ratably among the holders of Preferred Stock. In the event of any
such voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation, subject to all of the preferential rights of the holders of
Preferred Stock on distribution or otherwise, the holders of Common Stock shall
be entitled to receive, ratably, all remaining assets of the Corporation.
A consolidation or merger of the Corporation with or into any other
corporation or corporations, or a sale of all or substantially all of the
assets of the Corporation, shall not be deemed to be a liquidation,
dissolution, or winding up with the meaning of this paragraph.
E. Voting Rights.
--------------
Except as otherwise provided by law, or by this Certificate of
Incorporation, the holders of shares of issued and outstanding Common Stock of
the Corporation shall have and possess the exclusive voting rights and powers.
However, upon the occurrence of any of the following events at any time
when any shares of the Preferred Stock are outstanding:
(i) two (2) or more annual dividend(s), whether consecutive or not, on
the Preferred Stock shall be in arrears for a period of six (6) months or
more, in whole or in part; or
(ii) the Corporation shall breach in any respect any of the provisions
of Paragraph H hereof;
THEN upon written notice from the holders of sixty-six and two-thirds percent
(66-2/3%) of the Preferred Stock to the Corporation, the holders of the
Preferred Stock shall be vested with voting rights entitling such holders to
elect two members of the Board of Directors. At such time as all conditions
which resulted in the holders of the Preferred Stock being entitled to elect
members of the Board of Directors are cured, the rights of the holders of the
Preferred Stock to elect members of the Board of Directors shall cease and the
voting rights of the holders of the Common Stock to elect all of the members of
the Board of Directors shall be immediately re-instated. Upon any subsequent
occurrence of the aforementioned events enumerated in (i) and (ii) above, the
holders of sixty-six and two-thirds percent (66-2/3%) of the Preferred Stock
and the holders of the Common Stock respectively shall have the same
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rights as are set forth herein, subject to renewal from time to time upon the
same terms and conditions.
At any time after the voting power to elect certain members of the Board
of Directors shall have become vested in the holders of the Preferred Stock as
provided in this Paragraph E, the President or Secretary of the Corporation
may, and upon the request of the record holders of at least sixty-six and
two-thirds percent (66-2/3%) of the shares of Preferred Stock then outstanding
addressed to the Secretary at the principal executive office of the Corporation
shall, call a special meeting of the holders of the Common Stock and of the
Prefered Stock for the election of directors, to be held at the place and upon
the notice provided in the By-Laws of the Corporation for the holding of annual
meetings, except that the notice for such meetings shall be not more than
fifteen (15) days. If such meeting shall not be so called within three (3) days
after personal service of the request, or within five (5) days after mailing of
the same by certified or registered mail within the United States of America,
then a person designated by the record holders of at least sixty-six and
two-thirds percent (66-2/3%) of the shares of Preferred Stock then outstanding
may call such meeting at the place and upon the notice above provided, and for
that purpose shall have access to the stock books of the Corporation. At any
meeting so called or at any annual meeting held while the holders of the
Preferred Stock have the voting power to elect certain members of the Board of
Directors, the holders of a majority of the then outstanding shares of both the
Common Stock and the Preferred Stock, present in person or by proxy, shall be
sufficient to constitute a quorum for the election of directors as herein
provided. The terms of office of all persons who are directors of the
Corporation at the time of such meeting shall terminate upon the election at
such meeting by the holders of the Preferred Stock and the Common Stock of a
number of directors they are respectively entitled to elect, and the persons so
elected as directors by the holders of each class of stock shall constitute the
duly elected directors of the Corporation.
F. Optional Redemption.
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The Corporation, at the option of the Board of Directors, may at any time
after the date of issuance of the Preferred Stock, redeem the whole or any part
of the outstanding Preferred Stock. The Redemption Price for such optional
redemption shall be:
$7.37 per share prior to May 22, 1990,
$7.94 per share after May 22, 1990, but prior to May 22, 1991,
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$8.50 per share after May 22, 1991, but prior to May 22, 1992,
$8.50, plus the product of $.047 and the number of months elapsed
since May 22, 1992, per share after May 22, 1992;
decreased by (i) an amount equal to the aggregate of all dividends
theretofore paid on the outstanding Preferred Stock of Food 4 Less, Inc., a
Delaware corporation, since the date of issuance of such Preferred Stock on May
22, 1987, and (ii) except with respect to any redemption after May 22, 1992, an
amount equal to the product of $.047 and the number of months until the next
May 22, such sum being hereinafter sometimes referred to as the "Redemption
Price." In case of the redemption of a part only of the outstanding Preferred
Stock, the Corporation shall designate pro rata or by lot the shares to be
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redeemed. Less than all of the Preferred Stock at any time outstanding may not
be redeemed until all dividends accrued and unpaid upon all shares of the
Preferred Stock outstanding shall have been paid for all past dividend period
on all the Preferred Stock then outstanding, other than the shares to be
redeemed, shall have been paid or declared and the full amount thereof set
apart for payment.
At least thirty (30) days' previous notice by mail, postage prepaid,
shall be given to the holders of record of the Preferred Stock to be redeemed,
such notice to be addressed to each such shareholder at the address of such
holder appearing on the books of the Corporation or given by such holder to the
Corporation for the purpose of notice, or if no such address appears or is so
given, at the place where the principal office of the Corporation is located.
Such notice shall state the date fixed for redemption, the Redemption Price,
and shall call upon such holder to surrender to the Corporation on said date at
the place designated in the notice such holder's certificate or certificates
representing the shares to be redeemed. On or after the date fixed for
redemption as stated in such notice, each holder of the Preferred Stock called
for redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price. If less than all the
shares represented by any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares. If such notice
of redemption shall have been duly given, and if on the date fixed for
redemption funds necessary for the redemption shall be available therefor,
then, notwithstanding that the certificates evidencing any Preferred Stock so
called for redemption shall not have been surrendered, the dividends with
respect to shares so called for redemption shall forthwith after such date
cease and terminate, except only the right of the holders to receive the
Redemption Price
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without interest upon surrender of their certificates therefor.
If, on or prior to any date fixed for redemption of the Preferred Stock
the Corporation deposits, with any bank or trust company in the State of
Kansas, as a trust fund, a sum sufficient to redeem, on the date fixed for
redemption therefor, the shares called for redemption, with irrevocable
instructions and authority to the bank or trust company to give the notice of
redemption thereof (or to complete the giving of such notice if theretofore
commenced) and to pay, on or after the date fixed for redemption or prior
thereto, the Redemption Price of the shares to their respective holders upon
the surrender of their share certificates, then from and after the date of
deposit (although prior to the date fixed for redemption), the shares so called
shall be redeemed and dividends on those shares shall cease to accrue after the
date fixed for redemption. The deposit shall constitute full payment of the
shares to their holders and from and after the date of the deposit the shares
shall no longer be outstanding, and the holders thereof shall cease to be
shareholders with respect to such shares, and shall have no rights with respect
thereto except the right to receive from the bank or trust company payment of
the Redemption Price of the shares without interest, upon the surrender of
their certificates therefor. Any interest accrued on any funds so deposited
shall be the property of, and paid to, the Corporation. If the holders of the
Preferred Stock, so called for redemption shall not, at the end of seven years
from the date fixed for redemption thereof, have claimed any funds so
deposited, such bank or trust company shall thereafter be relieved of all
responsibility in respect thereof to such holders and such holders shall look
only to the Corporation for payment of the Redemption Price.
G. Conversion.
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The holders of the Preferred Stock shall have conversion rights as follows:
1. The Preferred Stock shall be convertible at any time or from time
to time at the option of the respective holders of the shares of the
outstanding Preferred Stock at the office of the Corporation or any
transfer agent for such shares, into fully paid and nonassessable shares of
Common Stock (calculated to the nearest one-hundredth of a share, fractions
of less than one-hundredth of a share being disregarded) of the
Corporation, at the conversion price in effect at the time of conversion
determined as hereinafter provided, each share of Preferred Stock being
taken at $5.67 for the purpose of such conversion. The price at which
shares of Common Stock shall be deliverable upon conversion (herein called
the "Conversion Price") shall be initially
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one hundred nine dollars seventy five cents ($109.75) per share of Common
Stock. Such initial Conversion Price shall be subject to adjustment from
time to time in certain instances, as hereinafter provided. The
Corporation shall make no payment or adjustment on account of any
dividends accrued on the Preferred Stock surrendered for conversion.
2. Before any shares of Preferred Stock may be converted into Common
Stock at the option of the holder, the holder must surrender the
certificate or certificates for those shares, duly endorsed in blank or
accompanied by proper instruments of transfer, at the office of the
Corporation or of any transfer agent for the Preferred Stock, and shall
give written notice to the Corporation at such office that such holder
elects to convert the same and shall state in writing therein the name or
names in which such holder wishes the certificate or certificates for
Common Stock to be issued. The Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Preferred
Stock, or to such holder's nominee or nominees, certificates for the number
of full shares of Common Stock to which such holder shall be entitled, as
aforesaid, together with a script certificate or cash in lieu of any
fraction of a share as hereinafter provided. Such conversion shall be
deemed to have been made as of the date of such surrender of the Preferred
Stock to be converted, and the person or persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Stock on said date.
3. If the Conversion Price in effect immediately prior to the close of
business on any date shall exceed by as much as ten cents ($.10) the amount
determined at the close of business on such date by dividing: (i) a sum
equal to (x) one hundred nine dollars seventy five cents ($109.75)
multiplied by the number of shares of Common Stock outstanding on the date
of issuance of the shares of Preferred Stock plus (y) the aggregate of the
amounts of all consideration received by the Corporation upon all issues of
shares of Common Stock after the date of issuance of the Preferred Stock,
by (ii) the total number of outstanding shares of Common Stock, then the
Conversion Price shall be reduced effective at the close of business on
such date, by the largest multiple of ten cents ($.10) contained in the
amount by which such Conversion Price shall exceed the amount so
determined.
For the purposes of this subparagraph 3, the following provisions
shall be applicable:
(a) If the Corporation shall issue or sell for cash shares of
Common Stock, or any shares or obligations convertible into or
exchangeable for shares of Common Stock, the consideration received by
the Corporation therefor shall
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be deemed to be the amount of cash received, before deducting
therefrom any commissions or expenses paid by the Corporation for any
underwriting of, or otherwise in connection with, the issue or sale
thereof. If the Corporation shall issue or sell such securities to an
underwriter without payment of any commission, the consideration
received by the Corporation therefor shall be deemed to be the full
amount at which such securities are initially offered by the
underwriter to the public, unless the difference between the price of
said securities, rights, or options to such underwriter and said
initial public offering price exceeds eight percent (8%) of said price
to the underwriter, in which event the consideration received by the
Corporation therefor shall be deemed to be said price to the
underwriter, plus eight percent (8%) of said price to the underwriter.
(b) If the Corporation shall issue (otherwise than upon conversion
or exchange of obligations or shares of stock of the Corporation)
additional shares of Common Stock for a consideration other than cash or
a consideration partly other than cash, the amount of the consideration
other than cash received by the Corporation for such shares shall be
deemed to be the value of such consideration as determined by the Board
of Directors.
(c) If the Corporation shall issue additional shares of Common
Stock, not exceeding in the aggregate 9.9 percent (9.9%) such shares as
constituted on the date of issuance of the Preferred Stock (subject to
adjustment in case of a subdivision or combination of such Common Stock
or of a dividend in such shares declared upon such Common Stock),
pursuant to stock or option plans for officers or employees of the
Corporation, for a consideration per share (whether cash, other than
cash, or partly other than cash) less than the Conversion Price in
effect immediately prior to the issuance thereof, the consideration per
share received by the Corporation for such share shall be deemed to be
the Conversion Price in effect immediately prior to the issuance
thereof.
(d) If the Corporation shall issue in any manner any rights to
subscribe for or to purchase Common Stock or any options for the
purchase of Common Stock (other than the issuance referred to in clause
(c) above) at a consideration per share (as computed below) less than
the Conversion Price in effect immediately prior to the date of the
offering of such rights or the granting of such options, as the case may
be, all Common Stock which the holders of such rights or options shall
be entitled to subscribe for or purchase pursuant to such rights or
options shall be deemed to be issued or sold as of the date of the
offering of such rights or the granting of such options, as the case may
be, and the minimum aggregate consideration named in such rights or
options for the Common Stock covered thereby, plus the
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consideration, if any, received by the Corporation for such
rights or options, shall be deemed to be the consideration actually
received by the Corporation (as of the date of the offering of such
rights or the granting of such options, as the case may be) for the
issuance of such shares.
(e) If the Corporation shall issue in any manner any obligations or
any shares of the Corporation (other than the Preferred Stock) that
shall be convertible into or exchangeable for Common Stock, at a
consideration per share (as computed below) less than the Conversion
Price in effect immediately prior to the date such obligations or shares
are issued, all Common Stock issuable upon the conversion or exchange of
such obligations or shares shall be deemed to be issued as of the date
such obligations or shares are issued, and the amount of the
consideration received by the Corporation for such additional shares of
Common Stock shall be deemed to be the total of (i) the amount of
consideration received by the Corporation upon the issuance of such
obligations or shares, as the case may be, plus (ii) the minimum
aggregate consideration, if any, other than such obligations or shares,
receivable by the Corporation upon such conversion or exchange, except
in adjustment of interest and dividends.
(f) The amount of the consideration received by the Corporation
upon the issuance of any rights or options referred to in clause (d)
above, or upon the issuance of any obligations or shares which are
convertible or exchangeable as described in clause (e) above, and the
amount of the consideration, if any, other than such obligations or
shares so convertible or exchangeable, receivable by the Corporation
upon the exercise, conversion, or exchange thereof shall be determined
in the same manner provided in clauses (a) and (b) above with respect
to the consideration received by the Corporation in case of the
issuance of additional Common Stock; provided, however, that if such
obligations or shares of stock so convertible or exchangeable are
issued in payment or satisfaction of any dividend upon any stock of the
Corporation other than Common Stock, the amount of the consideration
received by the Corporation upon the original issuance of such
obligations or shares so convertible or exchangeable shall be deemed to
be the value of such obligations or shares, as of the date of the
adoption of the resolution declaring such dividend, as determined by
the Board of Directors at or as of that date. On the expiration of any
rights or options referred to in clause (d), or the termination of any
right of conversion or exchange referred to in clause (e), the
Conversion Price then in effect shall forthwith be readjusted to such
Conversion Price as would have obtained had the adjustments made upon
the issuance of such option, right, or convertible or exchangeable
securities been made upon the basis of the delivery of only the number
of shares of Common Stock actually delivered upon the
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exercise of such rights or options or upon the conversion or exchange
of such securities.
(g) If the Corporation shall issue additional Common Stock as a
dividend, the aggregate number of shares of Common Stock issued in
payment of such dividend shall be deemed to have been issued and to be
outstanding on the day next succeeding the record date for the
determination of stockholders entitled to such dividend and shall be
deemed to have been issued without consideration.
(h) The number of shares of Common Stock at any time outstanding
shall include all Common Stock then owned or held by or for the account
of the Corporation and shares issuable in respect of script certificates
issued in lieu of fractions of shares of Common Stock.
(i) Each share of Common Stock issued upon conversion of Preferred
Stock shall be deemed to have been issued for a consideration equal to
the Conversion Price in effect at the time of such issuance.
(j) If the Corporation shall at any time subdivide or combine the
outstanding shares of Common Stock, or shall issue as a dividend or
dividends on Common Stock such number of shares of Common Stock as shall
equal or aggregate ten percent (10%) or more of the number of shares of
Common Stock outstanding at the close of business on the date of
issuance of the Preferred Stock or on the date of the next preceding
adjustment pursuant to the provisions of this subparagraph 3, the amount
of ten cents ($.10) referred to above in this subparagraph 3 (or the
amount to which such amount may have been previously adjusted pursuant
to the provisions of this clause (j), shall be proportionately decreased
in the case of subdivision or dividend payable in shares of Common Stock
or increased in the case of combination, effective at the close of
business on the date of such subdivision or combination or of the
declaration of such dividend.
(k) The term dividend, as used in this subparagraph 3, shall mean a
dividend or other distribution upon shares of the Corporation; and, in
the event of a declaration of a dividend by the Corporation without the
fixing of a record date for the determination of shareholders entitled
thereto, the date fixed by applicable law for the determination of the
shareholders entitled thereto shall be deemed to be the record date.
4. If the Corporation shall at any time subdivide the outstanding
shares of Common Stock or shall issue as a dividend on such number of
shares of Common Stock as shall equal one percent (1%) or more of the
number of shares of Common Stock outstanding immediately prior to the
issuance of such dividend, the Conversion Price in effect immediately
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prior to such subdivision or the issuance of such dividend shall be
proportionately decreased, and in case the Corporation shall at any time
combine the outstanding shares of Common Stock, the Conversion Price in
effect immediately prior to such combination shall be proportionately
increased, effective at the close of business on the date of such
subdivision, dividend or combination, as the case may be. For the purposes
of this subparagraph 4 the date of issuance of any such dividend shall be
determined in accordance with clause (k) of subparagraph 3.
5. No fractional shares of Common Stock shall be issued upon the
conversion of Preferred Stock. If any fractional interest in a share of
Common Stock would, except for the provisions of this subparagraph 5 be
deliverable upon the conversion of any Preferred Stock, the Corporation
shall, in lieu of delivering the fractional share therefor, adjust such
fractional interest by payment to the holder of such converted Preferred
Stock of an amount in cash equal (computed to the nearest cent) to the
book value of such fractional interest as of the end of the Corporation's
last fiscal year.
6. Whenever the Conversion Price is adjusted, as herein provided, the
Corporation shall forthwith maintain at its principal executive office and
file with the transfer agent, if any, for Preferred Stock, a statement,
signed by the Chairman of the Board, or the President, or a Vice President
of the Corporation and by its chief financial officer or an Assistant
Treasurer, showing in reasonable detail the facts requiring such adjustment
and the Conversion Price after such adjustment. Such transfer agent shall
be under no duty or responsibility with respect to any such statement
except to exhibit the same from time to time to any holder of Preferred
Stock desiring an inspection thereof.
7. If there shall occur any capital reorganization or any
reclassification of the capital stock of the Corporation, consolidation or
merger of the Corporation with or into another Corporation, or the
conveyance of all or substantially all of the assets of the Corporation to
another Corporation, each share of Preferred Stock shall thereafter be
convertible into the number of shares or other securities or property to
which a holder of the number of shares of Common Stock of the corporation
deliverable upon conversion of such Preferred Stock would have been
entitled upon such reorganization, reclassification, consolidation, merger
or conveyance; and, in any such case, appropriate adjustment (as determined
by the Board of Directors) shall be made in the application of the
provisions herein set forth with respect to the rights and interests
thereafter of the holders of the Preferred Stock, to the end that the
provisions set forth herein (including provisions with respect to changes
in and other adjustments of the Conversion Price) shall
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thereafter be applicable, as nearly as reasonably may be, in relation to
any shares or other property thereafter deliverable upon the conversion of
the Preferred Stock.
8. The Corporation shall at all times reserve and keep available, out
of its authorized but unissued shares of Common Stock solely for the
purpose of effecting the conversion of the Preferred Stock, the full number
of shares of Common Stock deliverable upon the conversion of all Preferred
Stock from time to time outstanding. The Corporation shall from time to
time, in accordance with the laws of the State of Delaware, increase the
authorized amount of its Common Stock if at any time the authorized number
of shares of Common Stock remaining unissued shall not be sufficient to
permit the conversion of all of the Preferred Stock at the time
outstanding.
9. The Corporation shall pay any and all issue and other taxes that
may be payable in respect of any issue or delivery of Common Stock on
conversion of Preferred Stock pursuant hereto. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of Common Stock in a name other
than that in which the Preferred Stock so converted was registered, and no
such issue or delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of any such tax, or has
established to the satisfaction of the Corporation that such tax has been
paid.
10. Whenever reference is made in these provisions to the issue or
sale of Common Stock, the term "Common Stock" shall include any stock of
any class of the Corporation other than Preferred Stock, with a fixed limit
on dividends and a fixed amount payable in the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation.
11. All certificates evidencing Preferred Stock surrendered for
conversion shall be appropriately cancelled on the books of the
Corporation, and the shares so converted represented by such certificates
shall be restored to the status of authorized but unissued Preferred Stock
of the Corporation.
H. Protective Provisions.
----------------------
As long as any shares of the Preferred Stock are outstanding, the
Corporation shall not, without the prior written approval of the holders of
sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of the
Preferred Stock:
12
17
1. Amend or repeal any provision of or add any provision to, the
Corporation's Certificate of Incorporation if such action would alter or
change the rights, preferences, privileges or powers of, or the
restrictions provided for the benefit of, any shares of the Preferred Stock
so as to affect the Preferred Stock adversely; or
2. Increase the authorized number of shares of the Preferred Stock
over 899,606; or
3. Authorize or create shares of any class of stock having any
preference or priority as to dividends or assets superior to or on a parity
with any such preference or priority of the Preferred Stock, or reissue or
authorize the reissuance of any shares of the Preferred Stock which have
been redeemed, or authorize or create shares of any class or any bonds,
debentures, notes, or other obligations convertible into or exchangeable
for, or having optional rights to purchase, any shares of the Corporation
having any such preference or parity; or
4. Reclassify any shares of Common Stock or any other shares of stock
hereafter created junior to the Preferred Stock as to dividends or assets
into the Preferred Stock or into shares having any preference or priority
as to dividends or assets superior to or on a parity with that of the
Preferred Stock; or
5. Make any provision in the Corporation's Certificate of
Incorporation or By-Laws fixing special qualifications of persons who may
be holders of shares of the Preferred Stock or who may be directors of the
Corporation or any restrictions upon the right to transfer or hypothecate
shares of the Preferred Stock, except any provisions required by law; or
6. Directly or indirectly retire, redeem, purchase, otherwise
acquire, or permit any subsidiary to do any of the foregoing, any shares of
any capital stock of the Corporation ranking on a parity with or junior to
the Preferred Stock; or
7. Declare, pay or make, with respect to any shares of capital stock
of the Corporation ranking junior to the Preferred Stock on liquidation,
any dividend or distribution (except in shares of, or warrants or rights to
subscribe for or purchase shares of the Corporation)."
SECOND: That the foregoing amendment to the Certificate of
Incorporation has been approved by the
13
18
Board of Directors of this corporation by unanimous written consent,
pursuant to Section 242 of the Delaware General Corporation Law.
THIRD: The foregoing amendment to the Certificate of
Incorporation of this corporation was approved by the sole stockholder of
the issued and outstanding shares of Common Stock of this corporation by
written consent pursuant to Section 242 of the Delaware General
Corporation Law.
14
19
IN WITNESS WHEREOF, FOOD 4 LESS SUPERMARKETS, INC. has caused this
Certificate to be signed by its Chairman of the Board and attested by its
Secretary this 21st day of June, 1989.
FOOD 4 LESS SUPERMARKETS, INC.
By: /s/ RONALD W. BURKLE
----------------------------
Ronald W. Burkle,
Chairman of the Board
Attest:
/s/ MARK A. RESNIK
- - -----------------------------
Mark A. Resnik, Secretary
15
20
CERTIFICATE OF CHANGE OF ADDRESS OF
REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8
OF THE DELAWARE CODE
TO: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 of Title 8 of the Delaware Code,
the undersigned Agent for service of process, in order to change the address of
the registered office of the corporations for which it is registered agent,
hereby certifies that:
1. The name of the agent is The Prentice-Hall Corporation System, Inc.
2. The address of the old registered office was 229 South State
Street, Dover, Kent County, Delaware 19901.
3. The address to which the registered office is to be changed is 32
Loockerman Square, Suite L-100, Dover, Kent County, Delaware 19901. The new
address will be effective on October 27, 1989.
4. The names of the corporations represented by said agent are set
forth on the list annexed to this certificate and made a part hereof by
reference.
IN WITNESS WHEREOF, said agent has caused this certificate to be signed on
its behalf by its Vice President and Assistant Secretary this 10th day of
October 1989.
THE PRENTICE-HALL CORPORATION SYSTEM, INC.
/s/ ALAN E. SPIEWAK
------------------------------------------
Alan E. Spiewak, Vice President
ATTEST:
/s/ RICHARD L. KUSHAY
- - ------------------------
Richard L. Kushay,
Assistant Secretary
21
STATE OF DELAWARE -- DIVISION OF CORPORATIONS
CHANGE OF ADDRESS FILING FOR
PRENTICE-HALL CORPORATION SYSTEM, INC. AS OF OCTOBER 27, 1989
DOMESTIC
2193915 Lisa Newmann Enterprises, Inc. 04/19/1989 D DE
2193919 H-Sub 40, Inc. 04/19/1989 D DE
2193920 H-Sub 39, Inc. 04/19/1989 D DE
2193921 H-Sub 37, Inc. 04/19/1989 D DE
2193922 Excalibur Entertainment, Inc. 04/18/1989 D DE
2193923 H-Sub 38, Inc. 04/19/1989 D DE
2193924 H-Sub 35, Inc. 04/19/1989 D DE
2193926 H-Sub 36, Inc. 04/19/1989 D DE
2193928 H-Sub 34, Inc. 04/19/1989 D DE
2193932 H-Sub 33, Inc. 04/19/1989 D DE
2193936 Amarillo Chalet, Inc. 04/19/1989 D DE
2193938 H-Sub 32, Inc. 04/19/1989 D DE
2193978 Gem Industries Financial Corp. 04/19/1989 D DE
2193992 UAF Charter Sales Inc. 04/20/1989 D DE
2194005 Detroit Tool Group, Inc. 04/20/1989 D DE
2194006 Fusion U.S.A. Inc. 04/20/1989 D DE
2194008 Handmade Films, Inc. 04/20/1989 D DE
2194010 WSL Holdings Inc. 04/20/1989 D DE
2194013 Claire Broadcasting Corp. 04/20/1989 D DE
2194016 Energy Investment Advisors Corporation 04/20/1989 D DE
2194018 Molenco, Inc. 04/20/1989 D DE
2194020 25 Barclay Corp. 04/20/1989 D DE
2194022 Harris-SL Corp. 04/20/1989 D DE
2194024 APS Freehold, Inc. 04/20/1989 D DE
2194033 Sunrise Pontiac-GMC Truck, Inc. 04/20/1989 D DE
2194034 American Building Components Company, Inc. 04/20/1989 D DE
2194063 Emmi International Paris, Inc. 04/20/1989 D DE
2194065 Gold Creations, Inc. 04/20/1989 D DE
2194138 Herbco Enterprises, Inc. 04/21/1989 D DE
2194156 Food 4 Less Supermarkets, Inc. 04/21/1989 D DE
2194158 WI Holdings Corp. 04/21/1989 D DE
2194159 Transinvest Capital Corporation 04/21/1989 D DE
2194160 US Partners, Inc. 04/21/1989 D DE
2194161 Global Partners Investors Corp. 04/21/1989 D DE
2194164 Integron Corp. 04/21/1989 D DE
2194168 American Medical Investments, Inc. 04/21/1989 D DE
2194170 Franklin Polymers, Inc. 04/21/1989 D DE
2194172 Auction Television Network, Inc. 04/21/1989 D DE
2194175 Compu Trac Software, Inc. 04/21/1989 D DE
2194179 Oak Broadcasting, Inc. 04/21/1989 D DE
2194217 Macrotech Fluid Sealing, Inc. 04/21/1989 D DE
2194218 Deffuts Acquisition Corp. 04/21/1989 D DE
2194219 The Debt-For-Development Foundation 04/21/1989 D DE
2194230 Crowley Cellular Telecommunications Bloomington, Inc. 04/21/1989 D DE
2194232 Global Environmental Contractors Inc. 04/21/1989 D DE
2194235 Shasta Sweetner Corp. 04/21/1989 D DE
22
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
FOOD 4 LESS SUPERMARKETS, INC.
Food 4 Less Supermarkets, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That, by written consent of the Board of Directors of
the Corporation as of June 6, 1991, resolutions were duly adopted setting
forth a proposed amendment to the Certificate of Incorporation of the
Corporation, declaring said amendment to be advisable and directing the
officers of the Corporation to submit said amendment to the stockholders of
the Corporation for consideration thereof. The resolution setting forth the
proposed amendment is as follows:
RESOLVED, that the first sentence of Paragraph 4 of the
Certificate of Incorporation of the Corporation be amended to read
as follows:
"4. The total number of authorized shares of the
Corporation is as follows:
1,600,000 shares of Common Stock, par value $.01 per share; and
899,606 shares of Preferred Stock, par value $.01 per share.
SECOND: That, thereafter, the above amendment was duly adopted
by the written consent of the holder of a majority of the issued and
outstanding shares of capital stock of the Corporation in accordance with
Section 228 of the General Corporation Law of the State of Delaware. Prompt
written notice
23
in accordance with Section 228 of the General Corporation Law of the State of
Delaware has been given to those stockholders of the Corporation who have not
consented in writing.
THIRD: That the above amendment was duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, Food 4 Less Supermarkets, Inc. has caused
this certificate to be signed by Ronald W. Burkle, its President, and attested
by Mark A. Resnik, its Secretary, this 11th day of June, 1991.
FOOD 4 LESS SUPERMARKETS, INC.
By: /s/ Ronald W. Burkle
--------------------------
Ronald W. Burkle
President
ATTEST:
/s/ Mark A. Resnik
- - -------------------------
Mark A. Resnik
Secretary
2
24
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
FOOD 4 LESS SUPERMARKETS, INC.
FOOD 4 LESS SUPERMARKETS, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That, by unanimous written consent of the Board of
Directors of said corporation as of December 23, 1992, a resolution was duly
adopted setting forth a proposed amendment to the Certificate of Incorporation
of said corporation. The resolution setting forth the proposed amendment is as
follows:
"RESOLVED, that Paragraph 4 of the Certificate of
Incorporation of this corporation be amended by deleting the whole of
Paragraph 4 thereof and replacing in lieu and instead thereof a new
paragraph 4 to read in its entirety as follows:
"4. The total number of authorized shares of the
Corporation is as follows:
1,600,000 shares of Common Stock, par value $.01 per share; and
200,000 shares of Preferred Stock, par value $.01 per share.
The Board of Directors is expressly authorized at any time,
and from time to time, to provide for the issuance of shares of preferred stock
in one or more series, with such voting powers, full or limited or without
voting powers, and with such powers, designations, preferences and relative,
participating, optional or other rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the Board of Directors,
and as are not stated and expressed in this Certificate of Incorporation, or
any amendment thereto, including (but without limiting the generality of the
foregoing) the following:
(i) the designation of and number of shares constituting such
series;
(ii) the dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the preference or
relation which such dividends shall bear to the dividends
payable on any other class or classes or on any other series
of any other class or classes of capital stock, and whether
such dividends shall be cumulative or noncumulative;
25
(iii) whether the shares of such series shall be subject to
redemption by the Corporation, and, if made subject to such
redemption, the times, prices and other terms and conditions
of such redemption;
(iv) the terms and amounts of any sinking fund provided for the
purchase or redemption of the shares of such series;
(v) the extent, if any, to which the shares of such series shall
be convertible into or exchangeable for shares of any other
class or classes or of any other series of any class or
classes of capital stock of the Corporation, and, if provision
be made for conversion or exchange, the time, prices, rates,
adjustments, and other terms and conditions of such conversion
or exchange;
(vi) the extent, if any, to which the holders of the shares of such
series shall be entitled to vote as a class or otherwise with
respect to the election of directors or otherwise;
(vii) the restrictions, if any, on the issue or reissue of any
additional preferred stock; and
(viii) the rights of the holders of the shares of such series upon
the dissolution of, or upon the distribution of assets of, the
Corporation."
SECOND: That the foregoing amendment to the Certificate of
Incorporation was duly adopted by the Corporation with consent of the holders
of a majority of the issued and outstanding shares of capital stock of the
Corporation in accordance with Section 228 of the General Corporation Law of
the State of Delaware. Prompt written notice in accordance with Section 228 of
the General Corporation Law of the State of Delaware has been given to those
stockholders of the Corporation who have not consented in writing.
THIRD: That the foregoing amendment to the Certificate of
Incorporation was duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
FOURTH: This Certificate of Amendment shall become effective
at the close of business on the day of the filing hereof in the office of the
Secretary of State of the State of Delaware.
2
26
IN WITNESS WHEREOF, Food 4 Less Supermarkets, Inc. has caused
this certificate to be signed by George G. Golleher, its President, and
attested by Mark A. Resnik, its Secretary, this 23rd day of December, 1992.
FOOD 4 LESS SUPERMARKETS, INC.
By: /s/ GEORGE G. GOLLEHER
-------------------------------------
George G. Golleher
President
ATTEST:
/s/ MARK A. RESNIK
- - -------------------------------
Mark A. Resnik, Secretary
3
27
FOOD 4 LESS SUPERMARKETS, INC.
CERTIFICATE OF DESIGNATIONS
_______________________
Pursuant to Section 151
of the General Corporation Law of the State of Delaware
_______________________
Food 4 Less Supermarkets, Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware, does by
its president and its secretary and under its corporate seal hereby certify
that pursuant to the provisions of Section 151 of the General Corporation Law
of the State of Delaware, its Board of Directors, by unanimous written consent
dated December 23, 1992, duly adopted the following resolution, establishing
the rights, preferences, privileges and restrictions of a series of preferred
stock of the corporation which resolution remains in full force and effect as
of the date hereof:
"WHEREAS, the Board of Directors of Food 4 Less Supermarkets,
Inc. (the "Corporation") is authorized, within the limitations and restrictions
stated in the Certificate of Incorporation, to fix by resolution or resolutions
the designation of each series of preferred stock and the powers, designations,
preferences and relative, participating, optional or other rights, if any, and
the qualifications, limitations or restrictions thereof, including, without
limiting the generality of the foregoing, such provisions as may be desired
concerning voting, redemption, dividends, dissolution or the distribution of
assets, conversion or exchange, and such other subjects or matters as may be
fixed by resolution or resolutions of the Board of Directors under the General
Corporation Law of the State of Delaware; and
WHEREAS, it is the desire of the Board of Directors of the
Corporation, pursuant to its authority as aforesaid, to authorize and fix the
terms of a series of preferred stock and the number of shares constituting such
series;
NOW, THEREFORE, BE IT RESOLVED, that pursuant to Paragraph 4
of the Certificate of Incorporation, there is hereby authorized such series of
preferred stock on the terms and with the provisions herein set forth:
28
1. Designation.
The series of preferred stock authorized hereby shall be
designated as the "Series A Preferred Stock" (the "Series A Preferred Stock").
The number of shares constituting such series shall be 120,000. The par value
of the Series A Preferred Stock shall be $.01 per share.
2. Rank.
The Series A Preferred Stock shall, with respect to dividend
rights and rights on liquidation, winding up and dissolution, rank prior to all
classes of common stock of the Corporation, and any other series of preferred
stock subsequently established by the Board of Directors which ranks junior to
the Series A Preferred Stock (collectively, the "Junior Securities"). All
equity securities of the Corporation with which the Series A Preferred Stock
rank on a parity are collectively referred to as the "Parity Securities" and
all equity securities of the Corporation to which the Series A Preferred Stock
ranks junior, whether with respect to dividends or upon liquidation,
dissolution, winding-up or otherwise, are collectively referred to as the
"Senior Securities." The Series A Preferred Stock will be subject to the
issuance of Junior Securities, Parity Securities and Senior Securities
although, as of the date hereof, the Certificate of Incorporation does not
authorize any classes of capital stock other than the Common Stock and the
Preferred Stock and there are no other outstanding series of preferred stock
other than the Series A Preferred Stock.
3. Voting Rights.
Except as otherwise required by law or set forth in the
Certificate of Incorporation, each share of Series A Preferred Stock shall be
entitled to one (1) vote, and the Common Stock and the Series A Preferred Stock
shall vote together as one class, on any matter presented to the stockholders
for their vote or approval, including the election of directors.
4. Liquidation Preferences.
(a) In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the Corporation (whether capital or
surplus) shall be made to or set apart for the holders of the Common Stock upon
liquidation, dissolution or winding up, the holders of the Series A Preferred
Stock shall be entitled to receive, after payment of creditors, an amount equal
to $1,000 per share of Series A Preferred Stock (the "Liquidation Preference
Amount"). In the event of any such voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, subject to all of the
preferential rights of
2
29
the holders of the Series A Preferred Stock on distribution or otherwise, the
holders of the Common Stock shall be entitled to receive, ratably, all
remaining assets of the Corporation.
(b) If upon any such liquidation, dissolution, or winding
up of the Corporation, the remaining assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the holders of
the Series A Preferred Stock the Liquidation Preference Amount to which such
holders shall be entitled, the holders of the Series A Preferred Stock shall
share ratably in any distribution of the remaining assets and funds of the
Corporation in proportion to the respective amounts which would otherwise be
payable in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full.
(c) Neither the voluntary sale, conveyance, exchange or
transfer of all or substantially all of the property or assets of the
Corporation, nor the consolidation or merger of the Corporation with one or
more other corporations shall be deemed a liquidation, dissolution, or winding
up, voluntary or involuntary, within the meaning of this paragraph.
5. Dividends.
(a) The holders of the shares of Series A Preferred Stock
will be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends,
dividends at a rate of $152.50 per share per annum. Dividends will be
cumulative and will accrue from the date of issuance of the Series A Preferred
Stock and be payable, if declared by the Board of Directors, on such date as
the Board of Directors shall determine (the "Dividend Payment Date").
Dividends, whether or not declared, will cumulate, without interest, until
declared and paid, which declaration and payment may be for all or part of the
then accumulated dividends. Dividends will be computed on the basis of a
360-day year comprised of twelve 30-day months. Each such dividend shall be
payable to holders of record as they appear on the stock books of the
Corporation on such record dates, not less than ten (10) nor more than sixty
(60) days preceding the Dividend Payment Date, as shall be fixed by the Board
of Directors. Accrued and unpaid dividends, if any, shall not bear interest.
Dividends shall cease to accrue in respect of shares of Series A Preferred
Stock on the date of their redemption or repurchase by the Corporation.
(b) The Corporation may pay dividends on any Dividend
Payment Date occurring on or before December 31, 1997 by issuing additional
shares of Series A Preferred Stock valued at $1,000 per share. In no event
shall any dividend hereunder be payable in cash prior to December 31, 1997.
3
30
(c) In no event shall the Corporation pay any dividends
on the Series A Preferred Stock if such dividend would result in a Default or
Event of Default under the Corporation's Credit Agreement dated as of June 17,
1991, as amended (the "Credit Agreement") or under the indentures governing the
Corporation's 10.45% Senior Notes due 2000 and the 13-3/4% Senior Subordinated
Notes due 2001 (the "Indentures").
(d) All dividends paid with respect to shares of the
Preferred Stock shall be paid pro rata to the holders entitled thereto.
(e) During such time as any shares of the Series A
Preferred Stock are outstanding, the Corporation shall not declare, pay or set
apart for payment any dividend on any of the Junior Securities unless full
cumulative dividends shall have been paid or set apart for such payment on the
Series A Preferred Stock. If full dividends are not so paid, the Series A
Preferred Stock shall share dividends pro rata with the Parity Securities.
6. Optional Redemption.
The Corporation, at the option of the Board of Directors, may
at any time after December 31, 1997, redeem the whole or any part of the
outstanding shares of Series A Preferred Stock. The redemption price for each
share of Series A Preferred Stock shall be 100% of the Liquidation Preference
Amount for each share of Series A Preferred Stock. In no event shall the
Corporation pay any dividends on the Series A Preferred Stock if such dividend
would result in a Default or Event of Default under the Corporation's Credit
Agreement or the Indentures.
7. Conversion.
The Series A Preferred Stock shall be convertible at any time
or from time to time at the option of the holders thereof into fully paid and
nonassessable shares of Common Stock of the Corporation (calculated to the
nearest one-hundredth of a share, fractions of less than one-hundredth of a
share being disregarded), at a conversion ratio of one share of Series A
Preferred Stock for one share of Common Stock, provided that at the time such
conversion is sought Food 4 Less Holdings, Inc. owns 100% of the outstanding
Common Stock of the Corporation."
4
31
IN WITNESS WHEREOF, Food 4 Less Supermarkets, Inc. has caused
this certificate to be signed by George G. Golleher, its President, and
attested by Mark A. Resnik, its Secretary, this 23rd day of December, 1992, and
its corporate seal to be hereunto affixed.
FOOD 4 LESS SUPERMARKETS, INC.
?Corporate Seal#
By: /s/ GEORGE G. GOLLEHER
-------------------------------------
George G. Golleher
President
ATTEST:
/s/ MARK A. RESNIK
- - -------------------------------
Mark A. Resnik, Secretary
5