RESTATED CERTIFICATE OF INCORPORATION
OF
ARAMARK CORPORATION
(Originally Incorporated on September 7, 1984
under the name "ARA Acquiring Company")
FIRST: The name of the Corporation is ARAMARK CORPORATION.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of the Corporation's registered agent at such address is
The Corporation Trust Company.
THIRD: 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.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 185,000,000 shares,
consisting of (i) 10,000,000 shares of Series Preferred Stock, $1.00 par value
per share (the "Series Preferred Stock"), and (ii) 25,000,000 shares of Common
Stock, Class A, $.01 par value per share (the "Class A Common Stock"), and
(iii) 150,000,000 shares of Common Stock, Class B, $.01 par value per share
(the "Class B Common Stock"). The Class A Common Stock and the Class B Common
Stock are referred to collectively as the "Common Stock".
The Board of Directors shall have the full authority permitted by law
to fix full or limited, or no voting power, and such other designations,
powers, preferences, and relative, participating, optional, special or other
rights (including, as examples and not as a limitation, multiple voting powers
and conversion rights), and qualifications, limitations or restrictions of any
series of the class of Series Preferred Stock that may be desired.
4A. Common Stock
A statement of the designations, powers, preferences, and rights of
the Common Stock, and the qualifications, limitations and restrictions in
respect thereof, is as follows:
1. Classes.
The Common Stock shall be divided into two classes, the
Class A Common Stock and the Class B Common Stock. The Common Stock shall be
issuable only in whole shares. The powers, preferences and rights of the Class
A Common Stock and the Class B Common Stock, and the qualifications,
limitations and restrictions thereon, shall be in all respects identical,
except as otherwise provided in this Part 4A.
2. Dividends.
Subject to any provision in this Article FOURTH with respect
to any stock of the Corporation to the contrary, out of the assets of the
Corporation which are by law available for the payment of dividends, dividends
and other distributions may be, but shall not be required to be, declared and
paid upon shares of Common Stock, and the holders of shares of Class A Common
Stock and Class B Common Stock shall be entitled to receive the same dividends
and other distributions, ratably with the holder of one share of Class A
Common Stock entitled to receive ten times what the holder of one share of
Class B Common Stock is entitled to receive; provided, however, that in the
case of dividends or other distributions payable in Common Stock, only shares
of Class B Common Stock shall be distributed with respect to Class B Common
Stock and only shares of Class A Common Stock shall be distributed with
respect to Class A Common Stock, and any such distribution shall be made
ratably, with the holder of one share of Class A Common Stock entitled to
receive the same number of shares of Class A Common Stock as the number of
shares of Class B Common Stock the holder of one share of Class B Common Stock
shall be entitled to receive; and provided further, that the Board of
Directors, may declare and pay dividends and other distributions with respect
to the Class A Common Stock without declaring or paying any dividend or other
distribution with respect to the Class B Common Stock.
3. Voting Rights.
(a) Subject to the special voting rights of the
holders of any other stock of the Corporation, the Common Stock (and any other
stock of the Corporation which may be entitled to vote with the holders of
Common Stock), voting as a single class except where the Class A Common Stock
and the Class B Common Stock (and such other stock) are required by law to
vote as separate classes, shall possess all of the voting power of the
Corporation with respect to the election of directors and for all other
purposes.
(b) Each share of Common Stock, whether Class A
Common Stock or Class B Common Stock, shall be entitled to one vote on all
matters submitted to a vote of the Corporation's stockholders.
4. Liquidation.
Upon the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, after provision for the payment
of creditors and after provision shall be made for holders of all shares of
stock of the Corporation having a preference upon liquidation, dissolution or
winding up, the remaining assets of the Corporation shall be distributed among
the holders of Common Stock, ratably, with the holder of one share of Class A
Common Stock entitled to receive ten times what the holder of one share of
Class B Common Stock is entitled to receive, and, to the extent provided in
this Article FOURTH, the holders of any other stock of the Corporation which
may be entitled to share in such distribution.
5. Conversion of Class B Common Stock.
(a) Each share of Class B Common Stock may at any
time, but only with the prior approval of the Board of Directors, be converted
at the election of the holder thereof into one-tenth of a fully paid and
nonassessable share of Class A Common Stock. Subject to the terms of any such
approval, the holder of shares of Class B Common Stock may elect to convert
any or all of such shares at one time or at various times in such holder's
discretion. Such right shall be exercised by the surrender of the certificate
representing each share of Class B Common Stock to be converted to the agent
for the registration of transfer of shares of Class B Common Stock at its
office, or to the Corporation at its principal executive offices, accompanied
by a written notice of the election by the holder thereof to convert and (if
so required by the transfer agent or by the Corporation) by instruments of
transfer, in form satisfactory to the transfer agent and to the Corporation,
duly executed by such holder or the holder's duly authorized attorney.
(b) If a holder of Class B Common Stock ceases to
be either a director or full-time employee of the Corporation or any of its
Subsidiaries (a "Management Investor") or a Permitted Transferee of a person
who is then a Management Investor, then each share of Class B Common Stock
held by such holder shall thereupon be converted into one-tenth of a share of
Class A Common Stock effective immediately. No share of Class B Common Stock
may be issued other than to a Management Investor or a person who would be a
Permitted Transferee of a Management Investor, and any such share issued to
any other person shall ipso facto be converted into one-tenth of a share of
Class A Common Stock effective at the time of the purported issuance.
(c) At any time when the Board of Directors
authorizes and directs the conversion of all the Class B Common Stock into
Class A Common Stock, then, at the time designated by the Board for the
occurrence of such event, each outstanding share of Class B Common Stock shall
be converted into one-tenth of a share of Class A Common Stock and no further
shares of Class B Common Stock may be issued thereafter.
(d) In the event of any such conversion pursuant to
paragraph (a), (b) or (c), the certificate or certificates representing shares
of Class B Common Stock held by such holder shall thereupon and thereafter be
deemed to represent the number of whole shares of Class A Common Stock
issuable upon such conversion and the right to receive cash in lieu of
fractional shares pursuant to paragraph (f) hereof. Upon the surrender of any
such certificate to the agent for the registration of transfer of shares of
Class B Common Stock at its office, or to the Corporation at its principal
executive offices, such certificate shall be cancelled and a certificate for
the number of whole shares of Class A Common Stock to which he shall be
entitled, together with a cash adjustment for any fraction of a share if not
evenly convertible pursuant to paragraph (f) hereof, shall be issued and
delivered to the holder thereof as hereinafter provided.
(e) The issuance of a certificate for shares of
Class A Common Stock upon conversion of shares of Class B Common Stock shall
be made without charge for any stamp or other similar tax in respect of such
issuance. However, if any such certificate is to be issued in a name other
than that of the holder of the share or shares of Class B Common Stock
converted, the person or persons requesting issuance thereof shall pay to the
transfer agent or to the Corporation the amount of any tax which may be
payable in respect of any such transfer, or shall establish to the
satisfaction of the transfer agent or of the Corporation that such tax has
been paid. As promptly as practicable after the surrender for conversion of a
certificate representing shares of Class B Common Stock and the payment of any
tax as herein before provided, the Corporation will deliver or cause to be
delivered at the office of the transfer agent to, or upon the written order
of, the holder of such certificate, a certificate or certificates representing
the number of whole shares of Class A Common Stock issuable upon such
conversion, issued in such name or names as such holder may direct together
with a cash adjustment for any fraction of a share as provided pursuant to
paragraph (f) hereof, if not evenly convertible. Such conversion shall be
deemed to have been made immediately prior to the close of business on the
date of the surrender of the certificate representing shares of Class B Common
Stock (if on such date the transfer books of the Corporation shall be closed,
then immediately prior to the close of business on the first date thereafter
that said books shall be open) or, in the case of a conversion under paragraph
(b) or (c) of this Section, immediately upon the event giving rise to the
conversion, and all rights of such holder arising from ownership of shares of
Class B Common Stock shall cease at such time, and the person or persons in
whose name or names the certificate representing shares of Class A Common
Stock are to be issued shall be treated for all purposes as having become the
record holder or holders of such shares of Class A Common Stock at such time
and shall have and may exercise all the rights and powers appertaining
thereto. No adjustments in respect of any past dividends and other
distributions shall be made upon the conversion of any share of Class B Common
Stock; provided, however, that if any share of Class B Common Stock shall be
converted subsequent to the record date for the payment of a dividend or other
distribution on shares of Class B Common Stock but prior to such payment, the
registered holder of such shares at the close of business on such record date
shall be entitled to receive the dividend or other distribution payable to
holders of Class B Common Stock. The Corporation shall at all times reserve
and keep available, solely for the purpose of issue upon conversion of
outstanding shares of Class B Common Stock, such number of shares of Class A
Common Stock as may be issuable upon the conversion of all such outstanding
shares of Class B Common Stock, provided that the Corporation may deliver
shares of Class A Common Stock held in the treasury of the Corporation.
(f) No fractions of shares of Class A Common Stock
are to be issued upon conversion, but in lieu thereof the Corporation will pay
therefor in cash, a sum equal to the number of shares of Class B Common Stock
not evenly convertible multiplied by the per share fair market value of the
Class B Common Stock, as determined by an Appraiser according to the most
recent existing appraisal; provided, however, that such appraisal shall be as
of a date not more than six months prior to its use hereunder.
4B. Series D Stock
1. Designation. There shall be a series of Series Preferred
Stock which shall consist of 20,000 shares and shall be designated as
Adjustable Rate Callable Nontransferable Series D Preferred Stock (the "Series
D Stock"). The number of authorized shares of Series D Stock may be increased
by resolution of the Board of Directors.
2. Rank.
(a) Rank of Series D Stock. To the extent and in
the manner provided in this Part 4B, the Series D Stock shall, with respect to
dividend rights and rights on liquidation, rank (i) junior to or on parity
with, as the case may be, any other stock of the Corporation, the terms of
which shall specifically provide that such stock shall rank senior to, or on
parity with, as the case may be, the Series D Stock with respect to dividend
rights or rights on liquidation or both and (ii) senior to any other stock of
the Corporation.
(b) Certain Definitions. The following terms as
used in this Part 4B shall be deemed to have the meanings set forth in this
section.
(1) The term "Participating Stock" shall
mean the Common Stock and any other stock of the Corporation of any class
which has the right to participate in dividends and distributions of the
Corporation without limit as to the amount or percentage.
(2) The term "Parity Stock" with respect
to Series D Stock shall mean the Series D Stock and all other stock of the
Corporation ranking equally therewith as to the payment of dividends or the
distribution of assets upon liquidation. The term "Dividend Parity Stock" with
respect to Series D Stock shall mean the Series D Stock and all other stock of
the Corporation ranking equally therewith as to the payment of dividends. The
term "Liquidation Parity Stock" with respect to Series D Stock shall mean the
Series D Stock and all other stock of the Corporation ranking equally
therewith as to distribution of assets upon liquidation.
(3) The term "Junior Stock" with respect
to Series D Stock shall mean the Participating Stock and all other stock of
the Corporation ranking junior thereto as to the payment of dividends and the
distribution of assets upon liquidation. The term "Dividend Junior Stock" with
respect to Series D Stock shall mean the Participating Stock and all other
stock of the Corporation ranking junior thereto as to the payment of
dividends. The term "Liquidation Junior Stock" with respect to Series D Stock
shall mean the Participating Stock and all other stock of the Corporation
ranking junior thereto as to distribution of assets upon liquidation.
(4) The term "Senior Stock" with respect
to Series D Stock shall mean all stock of the Corporation ranking senior
thereto as to the payment of dividends or distribution of assets upon
liquidation.
3. Dividends.
(a) Cumulative Dividends. The holders of record of
Series D Stock shall be entitled to receive, as and if declared by the Board
of Directors, cumulative cash dividends thereon at the per annum rate per
share equal to the Established Dividend Rate (as defined in paragraph (c)),
and no more, but only out of funds legally available for the payment of such
distributions under the General Corporation Law of the State of Delaware.
Dividends on the Series D Stock shall not be payable unless and until declared
by the Board of Directors. Dividends shall accrue from the date of original
issuance. Accumulations of dividends shall not bear interest.
(b) Limitations Upon Dividend Arrearage. Unless
dividends that have been declared and are payable upon the Series D Stock have
been paid, no dividend or other distribution (except in Junior Stock) shall be
declared or paid on Dividend Junior Stock and no amount shall be set aside for
or applied to the redemption, purchase or other acquisition of (i) any
Dividend Junior Stock or Liquidation Junior Stock other than by exchange
therefor of Junior Stock or out of the proceeds of a substantially concurrent
sale of shares of Junior Stock or (ii) any Parity Stock except in accordance
with a purchase or exchange offer made simultaneously by the Corporation to
all holders of record of Parity Stock which, considering the annual dividend
rates and the other relative rights and preferences of such shares, in the
opinion of the Board of Directors (whose determination shall be conclusive),
will result in fair and equitable treatment among all such shares.
(c) The "Established Dividend Rate" shall initially
be $25.00, and shall be reset as provided in this paragraph. On each December
16, beginning December 16, 1998 and continuing so long as any shares of Series
D Stock shall be outstanding, the Established Dividend Rate shall be reset at
a rate equal to $1,000 multiplied by 50% of the One Year Treasury Rate that
shall have been in effect at the close of business on the December 1 next
preceding (or if such December 1 shall not have been a business day, the
business day next preceding such December 1), rounded up to the nearest $1.00;
provided, however, that the Established Dividend Rate shall in no event be
greater than $50.00. For purposes of the preceding sentence, the "One Year
Treasury Rate" shall mean the rate for direct obligations of the United States
having a constant maturity of 1-year, as published in H.15(519) under the
heading "Treasury Constant Maturities", or, if not so published by such
December 16, such rate as determined in good faith by the Corporation, which
determination absent manifest error shall be conclusive. The Corporation shall
file with the duly appointed transfer agent for the Series D Stock a
certificate stating the new Established Dividend Rate determined as provided
in this paragraph and showing the computation thereof, and will cause a notice
stating the new Established Dividend Rate and the computation thereof to be
mailed to the holders of shares of Series D Stock.
4. Liquidation Rights.
(a) Liquidation Value. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of Series D Stock shall be entitled to receive from
the assets of the Corporation, payment in cash, of $1,000 per share, plus a
further amount equal to unpaid cumulative dividends on Series D Stock accrued
to the date when such payments shall be made available to the holders thereof,
and no more, before any amount shall be paid or set aside for, or any
distribution of assets shall be made to the holders of Liquidation Junior
Stock. If, upon such liquidation, dissolution or winding up, the amounts
available for distribution to the holders of all Liquidation Parity Stock
shall be insufficient to permit the payment in full to such holders of the
preferential amounts to which they are entitled, then such amounts shall be
paid ratably among the shares of Liquidation Parity Stock in accordance with
the respective preferential amounts (including unpaid cumulative dividends, if
any) payable with respect thereto if paid in full.
(b) Actions Not Considered Liquidation. None of the
following shall be considered a liquidation, dissolution or winding up of the
Corporation within the meaning of this section: (1) a consolidation or merger
of the Corporation with or into any other corporation; (2) a merger of any
other corporation into the Corporation; (3) a reorganization of the
Corporation; (4) the purchase or redemption of all or part of the outstanding
shares of any class or classes of the Corporation; (5) a sale or transfer of
all or any part of the assets of the Corporation; or (6) a share exchange to
which the Corporation is a party.
5. Redemption.
(a) Optional Redemption. The Series D Stock may be
called for redemption and redeemed out of funds legally available therefor at
the option of the Corporation by resolution of the Board of Directors, in
whole at any time or in part at any time or from time to time upon the notice
hereinafter provided for in paragraph (c), by the payment therefor of the
redemption price per share of $1,000 plus an amount equal to the accrued and
unpaid cumulative dividends thereon to the date fixed by the Board of
Directors as the redemption date. In addition, the Corporation may so call for
redemption at any time all, but not less than all, of the shares of Series D
Stock held by any person or entity.
(b) No Mandatory Redemption. There is no mandatory
sinking fund for, or other required redemption of, the Series D Stock.
(c) Manner of Redemption.
(1) If less than all of the outstanding
shares of Series D Stock shall be called for redemption (and such redemption
is not pursuant to the second sentence of paragraph (a)), the particular
shares to be redeemed shall be selected by lot or by such other equitable
manner as may be prescribed by resolution of the Board of Directors.
(2) Notice of redemption of any shares of
Series D Stock shall be given by the Corporation by first-class mail, not less
than 10 nor more than 60 days prior to the date fixed by the Board of
Directors of the Corporation for redemption (the "redemption date"), to the
holders of record of the shares to be redeemed at their respective addresses
then appearing on the records of the Corporation. The notice of the redemption
shall state: (1) the redemption date; (2) the redemption price; (3) if less
than all outstanding shares of Series D Stock of the holder are to be
redeemed, the identification of the shares of Series D Stock to be redeemed;
(4) that dividends on the shares to be redeemed shall cease to accrue on the
redemption date; and (5) the place or places where such shares of Series D
Stock to be redeemed are to be surrendered for payment of the redemption
price.
(3) Notice having been mailed as
aforesaid, from and after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the redemption price of
the shares called for redemption), dividends on the shares of Series D Stock
so called for redemption shall cease to accrue, and from and after the
redemption date or such earlier date as funds shall be set aside for payment
of the redemption price (unless default shall be made by the Corporation in
providing money for the payment of the redemption price of the shares called
for redemption) said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the redemption price) shall cease.
Upon surrender in accordance with said notice of the certificates for any
shares so redeemed (properly endorsed or assigned for transfer, if the Board
of Directors of the Corporation shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption
price aforesaid.
(4) Shares of Series D Stock redeemed by
the Corporation shall be restored to the status of authorized and unissued
shares of Series Preferred Stock, undesignated as to series, and, except as
otherwise provided by the express terms of any outstanding series, may be
reissued by the Corporation as shares of one or more series of Series
Preferred Stock.
6. Voting Rights.
(a) No Voting Rights Generally. Except as expressly
provided to the contrary in this Part 4B or as otherwise required by law, the
holders of Series D Stock shall have no right to vote at, or to participate
in, any meeting of stockholders of the Corporation, or to receive any notice
of such meeting.
(b) Rights Upon Dividend Arrearage.
(1) In the event dividends that have been
declared and are payable upon the Series D Stock shall be in arrears, the
number of directors constituting the full board shall be increased by two, and
the holders of the Series D Stock voting noncumulatively and separately as a
single series together with the holders of any other shares of Series
Preferred Stock having the right to elect directors as a series under
circumstances when dividends are in arrears, shall be entitled to elect two
members of the Board of Directors of the Corporation at the next annual
meeting of stockholders of the Corporation or at a special meeting called as
hereinafter provided in this section. Such voting rights of the holders of
Series D Stock shall continue until all declared and unpaid dividends thereon
shall have been paid in full, whereupon such special voting rights of the
holders of Series D Stock shall cease (and the respective terms of the two
additional directors shall thereupon expire and the number of directors
constituting the full board shall be decreased by two) subject to being again
revived from time to time upon the recurrence of the conditions described in
this section as giving rise thereto.
(2) At any time when such right of holders
of Series D Stock to elect two additional directors shall have so vested, the
Corporation may, and upon the written request of the holders of record of not
less than 10% of the Series D Stock then outstanding (or 10% of all Series
Preferred Stock having the right to vote for such directors in case holders of
shares of other series of Series Preferred Stock shall also have the right to
elect directors as a series in circumstances when dividends are in arrears)
shall, call a special meeting of holders of such Series D Stock (and other
series of Series Preferred Stock, if applicable) for the election of
directors. In the case of such a written request, such special meeting shall
be held within 60 days after the delivery of such request, and, in either
case, at the place and upon the notice provided by law and in the bylaws of
the Corporation; except that the Corporation shall not be required to call
such a special meeting if such request is received less than 120 days before
the date fixed for the next ensuing annual meeting of stockholders of the
Corporation; provided, that the holders of Series D Stock receive notice of
such meeting and their right to vote thereat.
(3) Whenever the number of directors of
the Corporation shall have been increased by two as provided in this section,
the number as so increased may thereafter be further increased or decreased in
such manner as may be permitted by the bylaws of the Corporation and without
the vote of the holders of Series D Stock. No such action shall impair the
right of the holders of Series D Stock to elect and to be represented by two
directors as provided in this section.
(4) The two directors elected as provided
in this section shall serve until the next annual meeting of stockholders of
the Corporation and until their respective successors shall be elected and
qualified or the earlier expiration of their terms as provided in this
section. No such director may be removed without the vote or consent of
holders of a majority of the shares of Series D Stock (or holders of a
majority of shares of Series Preferred Stock having the right to vote in the
election of such director in case holders of shares of other series of Series
Preferred Stock shall also have the right to elect such director as a class).
If, prior to the expiration of the term of any such director, a vacancy in the
office of such director shall occur, such vacancy shall, until the expiration
of such term, in each case be filled by appointment made by the remaining
director elected as provided in this section.
7. Restrictions on Transfer. The shares of Series D Stock
shall not be transferable (other than by will or the laws of descent), except
that such shares may be transferred with the consent of the Board of Directors
of the Corporation.
8. No Conversion Rights. The holders of shares of Series D
Stock shall not have the right to convert such shares into other securities of
the Corporation.
FIFTH: Subject to the rights of holders of Series Preferred Stock to
elect additional directors under certain circumstances, the Corporation shall
be governed in accordance with the following provisions:
5A. Number of Directors
The Board of Directors of the Corporation shall consist of
not less than nine and not more than 19 members and the Chief Executive
Officer of the Corporation shall always be one of the members. The exact
number of directors within such minimum and maximum shall be fixed by the
Board of Directors.
5B. Election
Directors need not be elected by written ballot.
SIXTH: The following terms shall have the accompanying defined
meanings:
1. "Appraiser" shall mean a firm headquartered in the United
States of nationally recognized standing in the business of appraisal or
valuation of securities which does not own any stock of the Corporation and
which has been selected by the Board of Directors to act as an independent
appraiser.
2. "Permitted Transferee" shall have the meaning as defined
in the Stockholders' Agreement.
3. "Stockholders' Agreement" shall mean the Amended and
Restated Stockholders' Agreement dated as of December 14, 1994, by and among
the Corporation and the persons named therein as the same may be amended and a
copy of which is on file with the Secretary of the Corporation.
4. "Subsidiary" shall mean any corporation or other entity
of which the Corporation shall, directly or indirectly, own 50% or more of the
equity, as determined by the Board of Directors and any other corporation or
other entity in which the Corporation shall directly or indirectly have an
equity investment and which the Board of Directors shall in its sole
discretion designate.
SEVENTH: The By-Laws of the Corporation may be made, altered,
amended, changed, added to or repealed by the Board of Directors of the
Corporation without the assent or vote of the stockholders.
EIGHTH: Each person who was or is made a party or is threatened to be
made a party to or is involuntarily involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or a person of whom he is the
legal representative is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director or officer of
another corporation, or as its representative in a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer or representative or in any other capacity
while serving as a director, officer or representative shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended, against all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by him in connection
therewith; provided, however, that the Corporation shall indemnify any such
person seeking indemnity in connection with an action, suit or proceeding (or
part thereof) initiated by such person only if action, suit or proceeding (or
part thereof) was authorized by the Board of Directors. Such right shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition upon delivery to the Corporation of an undertaking, by or on
behalf of such person, to repay all amounts so advanced if it should be
determined ultimately that such person is not entitled to be indemnified under
this section or otherwise.
If a claim under this Article is not paid in full by the Corporation
within ninety days after a written claim has been received by the Corporation,
the claimant unpaid may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and if successful in
whole or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking has been tendered to the Corporation) that the claimant has not
met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claim, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant had not met
such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant had not met the applicable standard of
conduct.
The rights conferred by this Article shall not be exclusive of any
other right which such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
The Corporation may maintain insurance, at its expense, to protect
itself and any such director, officer or representative against any such
expense, liability or loss, whether or not the Corporation would have the
power to indemnify him against such expense, liability or loss under the
Delaware General Corporation Law.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation
in the manner now or hereafter prescribed by law, and all rights and powers
conferred herein on stockholders, directors and officers are subject to this
reserved power.
TENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed by the Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for the Corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, to be summoned in such manner as the said Court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the Court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all
stockholders or class of stockholders of the Corporation, as the case may be,
and also on the Corporation.
ELEVENTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
this Corporation shall not be liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as director.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates and integrates but does not further amend the Corporation's
Certificate of Incorporation, as heretofore amended and restated, having been
duly adopted pursuant to the provisions of Section 245 of the General
Corporation Law of the State of Delaware, has been duly executed this 12th day
of August, 1998.
ARAMARK CORPORATION
By: /s/ Martin W. Spector
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Martin W. Spector
Executive Vice President