1
EXHIBIT 3.1
AGREEMENT OF MERGER
OF
DFF ACQUISITION SUB TWO, INC.
AND
DOMINICK'S FINER FOODS, INC.
This Agreement of Merger (this "Agreement") is entered into as of the
22nd day of March, 1995, between DFF Acquisition Sub Two, Inc., a Delaware
corporation ("DFF Sub Two"), and Dominick's Finer Foods, Inc., a Delaware
corporation ("Dominick's").
RECITALS
WHEREAS, the Boards of Directors of Dominick's and of DFF Sub Two each
have determined that it is in the best interests of their respective
stockholders for DFF Sub Two to be merged with and into Dominick's (the
"Merger"), upon the terms and conditions set forth herein and in accordance
with the General Corporation Law of the State of Delaware (the "Delaware
General Corporation Law").
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
SECTION 1. The Merger. At the Effective Time (as defined below), DFF
Sub Two shall be merged with and into Dominick's, pursuant to the provisions of
Section 251 of the Delaware General Corporation Law, and the separate corporate
existence of DFF Sub Two shall cease and Dominick's shall succeed and continue
as the surviving corporation ("Surviving Corporation"), without other transfer,
to all the rights and property of DFF Sub Two and shall assume all of the
liabilities and obligations of DFF Sub Two.
SECTION. 2. Effective Time of the Merger. The Merger shall become
effective immediately upon the filing of this Agreement or a Certificate of
Merger relating to the Merger with the Secretary of State of the State of
Delaware (the time of such filing being the "Effective Time").
SECTION 3. Certificate of Incorporation. At the Effective Time, the
Certificate of Incorporation of Dominick's, as in effect immediately prior to
the Effective Time, shall be amended, pursuant to Section 251(e) of the
Delaware General Corporation Law, in its entirety to read as follows:
CERTIFICATE OF INCORPORATION
OF
DOMINICK'S FINER FOODS, INC.
1. The name of the corporation is:
Dominick's Finer Foods, Inc.
2
2. The address of its registered office in the
State of Delaware is 00 Xxxxxxxxxx Xxxxxx, Xxxxx
X-000, in the City of Dover, County of Xxxx, 00000.
The name of its registered agent at such address is
The Xxxxxxxx-Xxxx 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
Thousand (1,000), all of which shall be Common Stock;
and the par value of each share shall be one cent
($.01).
5. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is
expressly authorized to adopt, amend or repeal the
bylaws of the corporation.
6. Election of directors need not be by written
ballot unless the bylaws of the corporation shall so
provide.
7. No director of the 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.
SECTION 4. Bylaws. At the Effective Time, the Bylaws of DFF Sub Two,
as in effect immediately prior to the Effective Time, shall become the Bylaws
of Surviving Corporation pursuant to a resolution adopted by the Board of
Directors of Surviving Corporation dated as of the date hereof.
SECTION 5. Capital Stock. At the Effective Time, each share of common
stock of DFF Sub Two issued and outstanding immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into one issued and outstanding, fully paid and
nonassessable share of common stock, par value $.01, of Surviving Corporation.
Upon surrender of the certificates formerly representing shares of the stock of
DFF Sub Two to the Surviving Corporation, the holder of such certificates shall
be entitled to receive in exchange for such certificates new certificates
representing shares of the common stock of Surviving Corporation. At the
Effective Time, each share of capital stock of Dominick's, whether issued and
outstanding or held in the treasury, immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be cancelled and no consideration shall be issued in respect thereof.
2
3
SECTION 6. Authorizations. The officers of Dominick's and of DFF Sub
Two are hereby authorized to execute and deliver all such documents and
instruments and take all such action which they deem necessary or desirable in
order to carry out or put into effect the Merger.
SECTION 7. Miscellaneous.
(a) Entire Agreement; Amendments. This Agreement contains all of the
terms and conditions agreed upon by the parties hereto in connection with the
subject matter hereof. This Agreement may not be amended, modified or changed
except by written instrument signed by all of the parties hereto and consistent
with the provisions of the Stock Purchase Agreement dated as of January 17,
1995 by and among XXX Xxxxxxxx, Xxx., XXX Acquisition Sub, Inc., Xxxx L.L.C.,
Xxxx Family L.L.C. and Xxxx Developments L.L.C. (the "Stock Purchase
Agreement").
(b) Termination. Prior to the Effective Time, this Agreement shall
automatically terminate if the Stock Purchase Agreement is validly terminated.
The filing of this Agreement with the Secretary of State of the State of
Delaware shall constitute certification that this Agreement has not theretofore
been terminated. If terminated as provided in this Section 7(b), this
Agreement shall forthwith become wholly void and of no further force or effect.
(c) Captions. All captions and headings are inserted for the
convenience of the parties, and shall not be used in any way to modify, limit,
construe or otherwise affect this Agreement.
(d) Severability. If any term, provision or condition of this
Agreement is determined by a court or other judicial or administrative tribunal
to be illegal, void or otherwise ineffective or not in accordance with public
policy, the remainder of this Agreement shall not be affected thereby and shall
remain in full force and effect.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but which
together shall constitute a single agreement.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal domestic laws of the State of Delaware, without
reference to the choice of law principles thereof.
3
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Merger as of the day first above written by their respective officers thereunto
duly authorized.
DFF ACQUISITION SUB TWO, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
DOMINICK'S FINER FOODS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
5
CERTIFICATE OF SECRETARY
OF
DFF ACQUISITION SUB TWO, INC.
The undersigned, Xxxx X. Xxxxxx, Secretary of DFF Acquisition Sub Two,
Inc., a Delaware corporation, does hereby certify that the foregoing Agreement
of Merger was duly approved by resolutions adopted by unanimous written consent
of the sole stockholder of said corporation, pursuant to Sections 228 and 251
of the Delaware General Corporation Law, as of March 22, 1995.
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
Secretary
6
CERTIFICATE OF SECRETARY
OF
DOMINICK'S FINER FOODS, INC.
The undersigned, Xxxxxx X. Xxxxx, Secretary of Dominick's Finer Foods,
Inc., a Delaware corporation, does hereby certify that the foregoing Agreement
of Merger was duly approved by resolutions adopted by unanimous written consent
of the sole stockholder of said corporation, pursuant to Sections 228 and 251
of the Delaware General Corporation Law, as of March 22, 1995.
/s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Secretary
