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Exhibit 3.1
CERTIFICATE OF CORRECTION
TO THE
CERTIFICATE OF OWNERSHIP AND MERGER
OF
RALPHS SUPERMARKETS, INC.
(A DELAWARE CORPORATION)
AND
RALPHS GROCERY COMPANY
(A DELAWARE CORPORATION)
It is hereby certified that:
1. Ralphs Supermarkets, Inc. (the
"Corporation"), is a corporation organized and existing under the
laws of the State of Delaware.
2. A Certificate of Ownership and Merger merging
Ralphs Grocery Company into the Corporation and changing the name
of the Corporation to Ralphs Grocery Company was filed with the
Secretary of State of Delaware on June 14, 1995, and said
Certificate of Ownership and Merger requires correction as
permitted by Section (f) of Section 103 of the General
Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate
of Ownership and Merger to be corrected is that certain
paragraphs were inadvertently omitted from the copy of the
Certificate of Ownership and Merger which was filed with the
Secretary of State. A copy of said paragraphs are attached
hereto as Exhibit A.
4. The Certificate of Ownership and Merger
merging Ralphs Grocery Company into the Corporation and changing
the name of the Corporation to Ralphs Grocery Company is
corrected to read in its entirety as set forth in Exhibit B
hereto.
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Signed on August 18, 1995
RALPHS GROCERY COMPANY
By /s/ Jan Charles Gray
------------------------------
Jan Charles Gray
Senior Vice President, General
Counsel and Secretary
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EXHIBIT A
RESOLVED FURTHER, that by virtue of the
Merger and without any action on the part of
the holder thereof, each then outstanding
share of capital stock of the Corporation
shall remain unchanged and continue to remain
outstanding as one share of capital stock of
the Surviving Corporation;
RESOLVED FURTHER, that, by virtue of the
Merger and without any action on the part of
the holder thereof, each then outstanding
share of capital stock of Ralphs shall be
cancelled and no consideration shall be
issued in respect thereof;
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EXHIBIT B
CERTIFICATE OF OWNERSHIP AND MERGER
OF
RALPHS SUPERMARKETS, INC.
(A DELAWARE CORPORATION)
AND
RALPHS GROCERY COMPANY
(A DELAWARE CORPORATION)
It is hereby certified that:
1. Ralphs Supermarkets, Inc. (the "Corporation") is a
corporation organized under the laws of the State of Delaware.
2. The Corporation owns 100 percent of the
outstanding shares of common stock of Ralphs Grocery Company, a
Delaware corporation ("Ralphs"), which is a corporation organized
under the laws of the State of Delaware. The common stock of
Ralphs is its only class of stock outstanding.
3. The Board of Directors of the Corporation has
determined to merge Ralphs into the Corporation. Following are
the resolutions adopted by unanimous written consent of the Board
of Directors of the Corporation on June 14, 1995 with respect to
the merger of Ralphs with and into the Corporation (the
"Merger"):
RESOLVED, that Ralphs be merged with and into the
Corporation pursuant to Section 253 of the Delaware
General Corporation Law, so that the separate existence
of Ralphs shall cease as soon as the Merger shall
become effective (the "Effective Date"), and the
Corporation shall assume all of the liabilities of
Ralphs and thereafter shall continue as the surviving
corporation (the "Surviving Corporation"), governed by
the laws of the State of Delaware, and existing under
the name "Ralphs Grocery Company";
RESOLVED FURTHER, that by virtue of the Merger and
without any action on the part of the holder thereof,
each then outstanding share of capital stock of the
Corporation shall remain unchanged and continue to
remain outstanding as one share of capital stock of the
Surviving Corporation;
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RESOLVED FURTHER, that, by virtue of the Merger
and without any action on the part of the holder
thereof, each then outstanding share of capital stock
of Ralphs shall be cancelled and no consideration shall
be issued in respect thereof;
RESOLVED FURTHER, that on the Effective Date the
Restated Certificate of Incorporation and Bylaws of the
Corporation in effect immediately prior to the
Effective Date will be the Restated Certificate of
Incorporation and Bylaws of the Surviving Corporation,
until thereafter amended; except that upon the
Effective Date, Section 1 of the Restated Certificate
of Incorporation of the Surviving Corporation shall be
amended to read as follows:
"1. The name of the corporation (the
"Corporation") is Ralphs Grocery Company."
RESOLVED FURTHER, that the directors of the
Corporation immediately prior to the Effective Date
will continue to be the directors of the Surviving
Corporation, and the officers of the Corporation
immediately prior to the Effective Date will continue
to be the officers of the Surviving Corporation, in
each case until their successors are elected and
qualified; and
RESOLVED FURTHER, that such Merger is pursuant to
a plan of complete liquidation of Ralphs under Section
332 of the Internal Revenue Code of 1986, as amended.
4. The foregoing resolutions of Merger were approved
by unanimous written consent of the Board of Directors of the
Corporation in accordance with Section 141(f) of the Delaware
General Corporation Law.
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Signed on June 14, 1995
RALPHS SUPERMARKETS, INC.
By /s/ Jan Charles Gray
---------------------------------
Jan Charles Gray
Senior Vice President, General
Counsel and Secretary
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CERTIFICATE OF OWNERSHIP AND MERGER
OF
RALPHS SUPERMARKETS, INC.
(A DELAWARE CORPORATION)
AND
RALPHS GROCERY COMPANY
(A DELAWARE CORPORATION)
It is hereby certified that:
1. Ralphs Supermarkets, Inc. (the "Corporation") is a
corporation organized under the laws of the State of Delaware.
2. The Corporation owns 100 percent of the outstanding
shares of common stock of Ralphs Grocery Company, a Delaware corporation
("Ralphs"), which is a corporation organized under the laws of the State of
Delaware. The common stock of Ralphs is its only class of stock outstanding.
3. The Board of Directors of the Corporation has
determined to merge Ralphs into the Corporation. Following are the resolutions
adopted by unanimous written consent of the Board of Directors of the
Corporation on June 14, 1995 with respect to the merger of Ralphs with and into
the Corporation (the "Merger"):
RESOLVED, that Ralphs be merged with and into the Corporation
pursuant to Section 253 of the Delaware General Corporation Law, so
that the separate existence of Ralphs shall cease as soon as the
Merger shall become effective (the Effective Date"), and the
Corporation shall assume all of the liabilities of Ralphs and
thereafter shall continue as the surviving corporation (the Surviving
Corporation"), governed by the laws of the State of Delaware, and
existing under the name "Ralphs Grocery Company";
RESOLVED FURTHER, that on the Effective Date the Restated
Certificate of Incorporation and Bylaws of the Corporation in effect
immediately prior to the Effective Date will be the Restated
Certificate of Incorporation and Bylaws of the Surviving Corporation,
until thereafter amended; except that upon the Effective Date, Section
1 of the Restated Certificate of Incorporation of the Surviving
Corporation shall be amended to read as follows:
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"1. The name of the corporation (the
"Corporation") is Ralphs Grocery Company."
RESOLVED FURTHER, that the directors of the Corporation
immediately prior to the Effective Date will continue to be the
directors of the Surviving Corporation, and the officers of the
Corporation immediately prior to the Effective Date will continue to
be the officers of the Surviving Corporation, in each case until their
successors are elected and qualified; and
RESOLVED FURTHER, that such Merger is pursuant to a plan of
complete liquidation of Ralphs under Section 332 of the Internal
Revenue Code of 1986, as amended.
4. The foregoing resolutions of Merger were approved by
unanimous written consent of the Board of Directors of the Corporation in
accordance with Section 141(f) of the Delaware General Corporation Law.
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Signed on June 12, 1995
RALPHS SUPERMARKETS, INC.
By /s/ Jan Charles Gray
-------------------------------------
Jan Charles Gray
Senior Vice President, General Counsel
and Secretary
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CERTIFICATE OF MERGER
OF
FOOD 4 LESS SUPERMARKETS, INC.
WITH AND INTO
RALPHS SUPERMARKETS, INC.
It is hereby certified that:
1. The name and state of incorporation of each of the
constituent corporations is as follows:
NAME STATE OF INCORPORATION
---- ----------------------
Ralphs Supermarkets, Inc. ("Ralphs") Delaware
Food 4 Less Supermarkets, Inc. ("Food 4 Less") Delaware
2. The Boards of Directors of Food 4 Less and Ralphs
have approved an Agreement and Plan of Merger (the "Agreement of Merger") dated
as of September 14, 1994, as amended, by and among Food 4 Less, Inc., Food 4
Less Holdings, Inc., Food 4 Less, Ralphs, and the stockholders of Ralphs,
whereby Food 4 Less will merge with and into Ralphs pursuant to Section 251 of
the Delaware General Corporation Law, so that the separate existence of Food 4
Less will cease as soon as such merger (the "Merger") becomes effective (the
"Effective Date"), and Ralphs will assume all of the liabilities of Food 4 Less
and thereafter shall continue as the surviving corporation (the "Surviving
Corporation"), governed by the laws of the State of Delaware, and existing
under the corporate name it possesses immediately prior to the Effective Date.
3. The Agreement of Merger was approved by the holder of
all of the outstanding shares of Food 4 Less entitled to vote thereon, and by
the holders of all of the outstanding shares of Ralphs entitled to vote
thereon, in each case by written consent without a meeting in accordance with
Section 228 of the Delaware General Corporation Law, and with the notice
required by said Section 228 having been sent to each holder who has not so
consented in writing.
4. Food 4 Less and Ralphs have approved, adopted,
certified, executed and acknowledged the Agreement of Merger in accordance with
Section 251 of the Delaware General Corporation Law.
5. The name of the corporation surviving the Merger is
Ralphs Supermarkets, Inc. (the "Surviving Corporation").
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6. On the Effective Date, and after giving effect to the
cancellation and conversion of securities pursuant to the Agreement of Merger,
the Restated Certificate of Incorporation and Bylaws of Ralphs in effect
immediately prior to the Effective Date will be the Restated Certificate of
Incorporation and Bylaws of the Surviving Corporation, except that the Restated
Certificate of Incorporation of the Surviving Corporation shall be amended,
pursuant to Section 251(e) of the Delaware General Corporation Law, as follows:
(a) Section 4 of the Restated Certificate of
Incorporation of the Surviving Corporation is amended to read in its entirety
as follows:
"4. The total number of shares of stock which the
Corporation shall have authority to issue is Five Million
(5,000,000), all of which shall be Common Stock; and the par
value of each share shall be one cent ($.01)."
(b) Section 5 of the Restated Certificate of
Incorporation of the Surviving Corporation is amended to read in its entirety
as follows:
"5. The number of directors of the Corporation shall be
fixed by or in the manner provided in the By-laws of the
Corporation. Each director shall hold office until the annual
meeting of stockholders of the Corporation at which his or her
term expires and his or her successor is duly elected and
qualified, or until his or her earlier death, resignation or
removal in the manner provided for in the By-laws."
(c) Sections 6 and 7 of the Restated Certificate
of Incorporation of the Surviving Corporation are hereby deleted in their
entirety, and the remaining Sections are renumbered consecutively.
7. The executed Agreement of Merger is on file at the
principal place of business of the Surviving Corporation at the following
address:
c/o Ralphs Grocery Company
1100 West Artesia Boulevard
Compton, California 90220
Attention: Corporate Secretary
A copy of the Agreement of Merger will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of Food 4 Less,
Ralphs or the Surviving Corporation.
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Signed on June 12, 1995
RALPHS SUPERMARKETS, INC.
By: /s/ Jan Charles Gray
----------------------------------
Jan Charles Gray
Senior Vice President, General Counsel
and Secretary
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RESTATED
CERTIFICATE OF INCORPORATION
OF
RALPHS HOLDING COMPANY
Ralphs Holding Company (the "Corporation"), a corporation
organized and existing under and by virtue of the laws of the State of
Delaware, DOES HEREBY CERTIFY that:
1. The name of the Corporation is Ralphs Holding Company.
2. The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware
under the name of Ralphs Holding Company on January 29, 1992.
3. The Board of Directors of the Corporation, at a
meeting duly called and held in accordance with Section 141 of the General
Corporation Law of the State of Delaware, adopted resolutions declaring the
adoption of the Restated Certificate of Incorporation advisable and directing
that such Restated Certificate of Incorporation be submitted to the
stockholders of the Corporation for consideration.
4. The Restated Certificate of Incorporation was duly
adopted at a meeting of the stockholders of the Corporation in accordance with
Section 242 of the General Corporation Law of the State of Delaware.
5. This Restated Certificate of Incorporation has been
duly adopted in accordance with Sections 242 and 245 of the General Corporation
Law of the State of Delaware.
6. The text of the Restated Certificate of Incorporation
reads as follows:
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RESTATED
CERTIFICATE OF INCORPORATION
OF
RALPHS SUPERMARKETS, INC.
* * * * * * * *
1. The name of the corporation (the "Corporation") is:
Ralphs Supermarkets, Inc.
2. The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
3. The nature of the business or purposes to be
conducted or promoted by the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
4. The total number of shares of stock which the
Corporation shall have authority to issue is 55,000,000 shares, consisting of
50,000,000 shares of common stock, par value $.01 per share ("Common Stock"),
and 5,000,000 shares of preferred stock, par value $.01 per share ("Preferred
Stock"). The Preferred Stock may be issued from time to time, in one or more
series with such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as may be designated by the Board of Directors prior to
the issuance of such series, and the Board of Directors is hereby expressly
authorized to fix by resolution or resolutions prior to such issuance such
designations, preferences and relative, participating, optional or other
special rights, or qualifications, limitations or restrictions, including,
without limiting the generality of the foregoing, the following:
(i) the designation of such series or
class;
(ii) the dividend rate of such series or
class, the conditions and dates upon
which such dividends will be
payable, the relation which such
dividends will bear to the dividends
payable on any other class or
classes of stock or any other series
of any class of stock of the
Corporation, and whether such
dividends will be cumulative or
non-cumulative;
(iii) the redemption provisions and times,
prices and other terms and
conditions of such redemption, if
any, for such series or class;
(iv) the terms and amount of any sinking
fund provided for the purchase or
redemption of the shares of such
series or class;
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(v) the terms and conditions, if any, on
which shares of such series or class
shall be convertible into, or
exchangeable for, shares of stock or
any other securities, including the
price or prices, or the rates of
exchange thereof;
(vi) the voting rights, if any;
(vii) the restrictions, if any, on the
issue or reissue of any additional
Preferred Stock; and
(viii) the rights of the holders of such
series or class upon the
liquidation, dissolution, or
distribution of assets of the
Corporation.
The designations, preferences and relative, participating, optional or other
special rights, or qualifications, limitations or restrictions thereof, of each
additional series, if any, may differ from those of any or all other series
already outstanding.
5. The number of directors of the Corporation shall be
fixed by or in the manner provided in the By-laws of the Corporation. The
directors of the Corporation shall be divided into three classes, designated
Class A, Class B and Class C, respectively. The term of office of the Class A
directors shall expire at the 1992 annual meeting of stockholders of the
Corporation, the term of office of the Class B directors shall expire at the
1993 annual meeting of stockholders of the Corporation and the term of office
of the Class C directors shall expire at the 1994 annual meeting of
stockholders of the Corporation. At each annual meeting of stockholders
following the initial classification and election of directors, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders
of the Corporation after their election. Each director shall hold office until
the annual meeting of stockholders of the Corporation at which his terms
expires and his successor is duly elected and qualified, or until his earlier
death, resignation or removal in the manner provided for herein or in the
By-laws. Directors shall be allocated as evenly as possible among the three
classes of directors and, to the extent that an equal allocation is not
possible, a director shall first be added to Class C and then to Class A. This
paragraph 5 may not be amended or repealed except with the affirmative vote of
the holders of 75% of the issued and outstanding voting stock of the
Corporation.
6. Special meetings of the stockholders of the
Corporation for any purpose or purposes may only be called by the Board of
Directors, the Executive Committee of the Board of Directors, the Chairman of
the Board of Directors, the President or a stockholder or stockholders owning
of record at least 25% of the issued and outstanding voting stock of the
Corporation entitled to vote thereat. Special meetings may be held at such
place and at such time as shall be designated in the notice of such meeting
delivered pursuant to the By-laws of the Corporation. At a special meeting no
business shall be transacted and no corporate action shall be taken other than
that stated in the notice of the meeting. This
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paragraph 6 may not be amended or repealed except with the affirmative vote of
the holders of 75% of the issued and outstanding voting stock of the
Corporation.
7. Directors of the Corporation shall be elected by a
majority of the votes of the shares present in person or represented by proxy
at a meeting called for the election of directors and entitled to vote on the
election of directors.
8. In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized and empowered to make, alter, amend or repeal the By-laws
of the Corporation.
9. Unless and to the extent required by the By-laws of
the Corporation, elections of directors of the Corporation need not be by
written ballot.
10. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, in accordance with the laws of the State of
Delaware, and to the full extent permitted by said laws except as the By-laws
of the Corporation may otherwise provide. Such indemnification shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any By-law of the Corporation, agreement, vote of
stockholders or disinterested directors or otherwise, including insurance
purchased and maintained by the Corporation, both as to action in his official
capacity and as to action in action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
11. No director shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary
duty as a director, except for any matter in respect of which such director (a)
shall be liable under Section 174 of the General Corporation Law of the State
of Delaware or any amendment thereto or successor provision thereto, or (b)
shall be liable by reason that, in addition to any and all other requirements
for liability, he:
(i) shall have breached his duty of
loyalty to the Corporation or its
stockholders;
(ii) shall not have acted in good faith
or, in failing to act, shall not
have acted in good faith;
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(iii) shall have acted in a manner
involving intentional misconduct or
a knowing violation of law or, in
failing to act, shall have acted in
a manner involving intentional
misconduct or a knowing violation of
law; or
(iv) shall have derived an improper
personal benefit.
If the General Corporation Law of the State of Delaware is amended after July
1, 1990 to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be signed and attested by its duly authorized
officers on this 29th day of April, 1992.
/s/ Jan Charles Gray
-------------------------------
Jan Charles Gray
Senior Vice President, General
Counsel and Secretary
ATTEST:
/s/ R. Alexander Detrick
------------------------------
Senior Vice President
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