AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HOMELAND STORES, INC.
(FORMERLY SWO ACQUISITION CORPORATION)
TO THE SECRETARY OF STATE OF THE STATE OF DELAWARE:
The undersigned officers of Homeland Stores, Inc. ("Corporation")
do hereby certify as follows:
1. The Certificate of Incorporation of the Corporation was
originally filed with the Secretary of State of the State of Delaware
("Secretary of State") on September 15, 1987. At the time of its
original incorporation, the name of the Corporation was "SWO
Acquisition Corporation."
2. Such certificate of incorporation has been previously
amended and restated on October 21, 1987, November 6, 1987, and March 2,
1989. The name of the Corporation was changed to "Homeland Stores, Inc."
on March 2, 1989. Such certificate of incorporation, as previously
amended and restated, is referred to in this Amended and Restated
Certificate of Incorporation as the "Prior Certificate of Incorporation."
3. This Amended and Restated Certificate of Incorporation has
been amended for the purpose of modifying the capital structure of the
Corporation in accordance with the Plan of Reorganization of Homeland
Stores, Inc. and Homeland Holding Corporation confirmed by the United States
Bankruptcy Court for the District of Delaware ("Court") under Chapter 11 of
the United States Bankruptcy Code in the cases styled In re Homeland Stores,
Inc., Debtor, Case No. 96-747 (PJW), and In re Homeland Holding
Corporation, Debtor, Case No. 96-748 (PJW), on July 19, 1996. The cases
were filed with the Court on May 13, 1996.
4. This Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of Section 242, Section
245 and Section 303 of the General Corporation Law of the State of
Delaware.
5. The text of the Prior Certificate of Incorporation is
hereby further amended by this Amended and Restated Certificate of
Incorporation and is restated to read in its entirety as follows:
FIRST: The name of the Corporation is Homeland Stores, Inc.
SECOND: The Corporation's registered office in the State of
Delaware is at 15 North Street in the City of Dover, County of Kent.
The name of its registered agent at such address is National Corporate
Research, Ltd.
THIRD: The nature of the business of the Corporation and its
purpose 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.
FOURTH: The capital stock of the Corporation shall consist of a
single class and the total number of shares of stock which the
Corporation shall have authority to issue is 100 shares of Common Stock,
par value $0.01 per share.
Each share of Common Stock shall entitle the record holder
thereof to one vote on all matters submitted to the shareholders. The
Corporation shall not have the authority to issue non-voting equity
securities.
FIFTH: The following provisions are inserted for the management
of the business and for the conduct of the affairs of the Corporation and
for the purpose of creating, defining, limiting and regulating the
powers of the Corporation and its directors and stockholders:
(a) The number of directors of the Corporation shall be
fixed and may be altered from time to time in the manner provided in the
By-laws and vacancies in the Board of Directors and newly created
directorships resulting from any increase in the authorized number
of directors may be filled, and directors may be removed, as provided in
the By-laws.
(b) The election of directors may be conducted in any
manner approved by the shareholders at the time when the election is held
and need not be by ballot.
(c) All corporate powers and authority of the Corporation
(except as at the time otherwise provided by law, by this Amended
and Restated Certificate of Incorporation or by the By-laws) shall
be vested in and exercised by the Board of Directors.
(d) The Board of Directors shall have the power without the
assent or vote of the stockholders to adopt, amend, alter or repeal the
By-laws of the Corporation, except to the extent that the this Amended
and Restated Certificate of Incorporation or the By-laws otherwise provide.
(e) No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of his
or her fiduciary duty as a director, provided that nothing contained in
this Amended and Restated Certificate of Incorporation shall eliminate or
limit the liability of a director (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 the State of Delaware or (iv) for any transaction from
which the director derived an improper personal benefit.
SIXTH: The Corporation reserves the right to amend or repeal any
provision contained in this Amended and Restated Certificate of Incorporation
in the manner now or hereafter prescribed by the laws of the State of
Delaware, and all rights herein conferred upon shareholders or
directors are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned officers have signed this
Amended and Restated Certificate of Incorporation this day of
, 1996.
HOMELAND STORES, INC.
By:
James A. Demme,
President
ATTEST:
Secretary
(SEAL)
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