AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KASH N' KARRY FOOD STORES, INC.
1. The name of the corporation is Kash n' Karry Food
Stores, Inc.
2. The corporation was originally incorporated in Delaware
under the name "LSI ACQUISITION CORP."; the filing date of its
original Certificate of Incorporation with the Secretary of State
was April 27, 1988.
3. This Amended and Restated Certificate of Incorporation
has been adopted and effected in conformity with Sections 245 and
303 of the General Corporation Law of the State of Delaware,
pursuant to the Order Confirming Kash n' Karry Food Stores,
Inc.'s Plan of Reorganization entered by the United Sates
Bankruptcy Court for the District of Delaware of December 12,
1994 in case No. 94-1082(HSB), file name In re Kash n' Karry Food
Stores, Inc. The Court has jurisdiction over that proceeding
under Title 28 of the United States Code, Section 1334.
4. The Restated Certificate of Incorporation and all
amendments and supplements thereto are hereby superseded, amended
and restated by the following Second Amended and Restated
Certificate of Incorporation (the "Certificate of
Incorporation"):
FIRST: The name of the corporation (hereinafter referred
to as the "Corporation") is Kash n' Karry Food Stores, Inc.
SECOND: 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 that address is The Corporation Trust
Company.
THIRD: The purpose of 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 (the
"GCL").
FOURTH: The Corporation is authorized to issue an
aggregate of 6,500,000 shares of capital stock, 5,500,000 shares
of which are designated Common Stock, par value $.01 per share,
and 1,000,000 of which are designated Preferred Stock, par value
$.01 per share. All capital stock of the Corporation will be
fully paid and nonassessable.
FIFTH: The shares of Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is
authorized to fix the number of shares of any series of Preferred
Stock and to determine the designation of any such series. The
Board of Directors is also authorized to determine or alter the
rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock and,
within the limits and restrictions in any resolution or
resolutions of the Board of Directors originally fixing the
number of shares constituting any series, to increase or decrease
(but not below the number of shares of such series then
outstanding) the number of shares of any such series subsequent
to the issue of shares of that series.
SIXTH: The Corporation shall not issue any non-voting
equity securities to the extent prohibited by Section 1123(a)(6)
of the Bankruptcy Code (11 U.S.C. 1123(a)(6)); provided,
however, that this Article SIXTH (a) will have no further force
and effect beyond that required under Section 1123 of the
Bankruptcy Code; (b) will have such force and effect, if any,
only for so long as Section 1123 of the Bankruptcy Code is in
effect and applicable to the Corporation; and (c) in all events
may be amended or eliminated in accordance with applicable law
from time to time in effect.
SEVENTH: No director of the Corporation shall be 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 law, (iii) pursuant to Section 174 of the
GCL or (iv) for any transaction from which the director derived
an improper personal benefit. If the GCL is hereafter amended to
authorize the further elimination or limitation of the liability
of a director, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the GCL, as so amended. Any repeal or modification
of this Article SEVENTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal or
modification with respect to any acts or omissions occurring
prior to such repeal or modification. The provisions of this
Article SEVENTH shall not be deemed to limit or preclude
indemnification of a director by the Corporation for any
liability of a director that has not been eliminated or limited
by the provisions of this Article SEVENTH.
EIGHTH: 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 to make, amend and repeal the
bylaws, except to the extent that the bylaws or this Certificate
of Incorporation otherwise provide. The business and affairs of
the corporation shall be managed by or under the direction of the
Board of Directors, and the Directors need not be elected by
ballot unless required by the bylaws of the Corporation.
NINTH: The Corporation reserves the right to amend,
alter, change or repeal any provisions contained in this
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
IN WITNESS WHEREOF, Kash n' Karry Food Stores, Inc., has
caused this certificate to be signed by its Chief Executive
Officer and attested by its Secretary this 29th day of December,
1994.
KASH N' KARRY FOOD STORES, INC.
By: /s/ Raymond P. Springer
Raymond P. Springer
Executive Vice President,
Administration
ATTEST:
By: /s/ Richard D. Coleman
Richard D. Coleman
Secretary