EXHIBIT 3.1
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SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
THE PENN TRAFFIC COMPANY
The Penn Traffic Company, a corporation incorporated under the laws of
the State of Delaware (the "Corporation"), hereby certifies as follows:
A. The name of the Corporation is The Penn Traffic Company. The
Corporation's original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on April 22, 1992.
B. This Second Amended and Restated Certificate of Incorporation
was duly adopted in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware (the "DGCL") by virtue of Section 303
of the DGCL, and further amends and restates the provisions of the Corporation's
Certificate of Incorporation.
C. Provision for the making of this Second Amended and Restated
Certificate of Incorporation of the Corporation is contained in the Joint Plan
of Reorganization of The Penn Traffic Company and its affiliated debtors and
debtors-in-possession (the "Plan") under chapter 11 of the United States
Bankruptcy Code (Jointly Administered Case No. 03-22945(ASH)), which Plan was
confirmed by order of the United States Bankruptcy Court for the Southern
District of New York on March 17, 2005.
D. The text of the Certificate of Incorporation is amended and
restated in its entirety to read as follows:
1. NAME. The name of the corporation is The Penn Traffic Company.
2. ADDRESS; REGISTERED OFFICE AND AGENT. The address of the
Corporation's registered office in the State of Delaware is 1209 Orange Street,
City of Wilmington 19801; and its registered agent at such address is The
Corporation Trust Company.
3. PURPOSE. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the DGCL.
4. NUMBER OF SHARES. The total number of shares of stock that the
Corporation shall have authority to issue is Sixteen Million (16,000,000)
consisting of (i) One Million (1,000,000) shares of preferred stock, $.01 par
value per share (the "Preferred Stock"), and (ii) Fifteen Million (15,000,000)
shares of common stock, $.01 par value per share (the "Common Stock"). To the
extent required by Section 1123(a)(6) of the U.S. Bankruptcy Code (11 U.S.C. ss.
1123(a)(6)), no nonvoting equity securities of the Corporation shall be issued.
This provision shall have no further force and effect beyond that required by
Section 1123(a)(6) and is applicable only for so long as such Section is in
effect and applicable to the Corporation.
5. PREFERRED STOCK. The Board of Directors of the Corporation
(the "Board") is expressly authorized, by resolution or resolutions, to provide
for the issue of all or any shares of the Preferred Stock, in one or more
series, and to fix for each such
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series such voting powers, full or limited or no voting powers, and such
designations, preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereon, as shall be
stated and expressed in the resolution or resolutions adopted by the Board
providing for the issue of such series (a "Preferred Stock Designation") and as
may be permitted by the DGCL. The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the holders of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock") voting together as a single class, without a separate vote of the
holders of the Preferred Stock, or any series thereof, unless a vote of any such
holders is required pursuant to any Preferred Stock Designation.
6. COMMON STOCK. Except as otherwise provided by law or as
otherwise provided in any Preferred Stock Designation, the holders of the Common
Stock shall exclusively possess all voting power and each share of Common Stock
shall have one vote.
7. SECTION 203. Pursuant to Section 203(b)(l) of the DGCL, the
Corporation hereby expressly opts not to be governed by Section 203 of the DGCL.
8. ELECTION OF DIRECTORS. Members of the Board may be elected
either by written ballot or by voice vote.
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9. LIMITATION OF LIABILITY. 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, provided that this provision shall
not eliminate or limit the liability of a director (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under section 174 of the DGCL or (d) for any
transaction from which the director derived any improper personal benefits.
Any repeal or modification of the foregoing provision shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
10. INDEMNIFICATION.
10.1. To the extent not prohibited by law, the Corporation
shall indemnify any person who is or was made, or threatened to be made, a party
to any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Corporation, or is or was serving as a director, officer,
manager, member, employee or agent or in any other capacity at the request of
the Corporation, for any other corporation, company, partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Other Entity") while
serving as a director or officer of the Corporation, against judgments, fines,
penalties, excise taxes, amounts paid in settlement
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and costs, charges and expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection with such
Proceeding, if such person acted in good faith and in a manner such person
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. To the extent specified by the Board at
any time and to the extent not prohibited by law, the Corporation may indemnify
any person who is or was made, or threatened to be made, a party to any
threatened, pending or completed Proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, an action by or
in the right of the Corporation to procure a judgment in its favor, by reason of
the fact that such person is or was an employee or agent of the Corporation, or
is or was serving as a director, officer, manager, member, employee or agent or
in any other capacity at the request of the Corporation, for any Other Entity,
against judgment, fines, penalties, excise taxes, amounts paid in settlement and
costs, charges and expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection with such
Proceeding, if such person acted in good faith and in a manner such person
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
10.2. The Corporation shall, from time to time, reimburse
or advance to any director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses, including
attorneys' fees and
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disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding; PROVIDED, HOWEVER, that, if required by
the DGCL, such expenses incurred by or on behalf of any director or officer or
other person may be paid in advance of the final disposition of a Proceeding
only upon receipt by the Corporation of an undertaking, by or on behalf of such
director or officer (or other person indemnified hereunder), to repay any such
amount so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right of appeal that such director,
officer or other person is not entitled to be indemnified for such expenses.
10.3. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 10
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Second Amended Certificate of
Incorporation, the By-laws of the Corporation (the "By-laws"), any agreement
(including any policy of insurance purchased or provided by the Corporation
under which directors, officers, employees and other agents of the Corporation
are covered), any vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
10.4. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 10
shall continue as to a person who has ceased to be a director or officer (or
other person
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indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
10.5. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who 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, member, manager, employee or agent of an
Other Entity, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Section 10, the
By-laws or under section 145 of the DGCL or any other provision of law.
10.6. The provisions of this Section 10 shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Section 10 is in effect and any
other person entitled to indemnification hereunder, on the other hand, pursuant
to which the Corporation and each such director, officer, or other person intend
to be, and shall be, legally bound. No repeal or modification of this Section 10
shall affect any rights or obligations with respect to any state of facts then
or theretofore existing or thereafter arising or any proceeding theretofore or
thereafter brought or threatened based in whole or in part upon any such state
of facts.
10.7. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 10
shall be
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enforceable by any person entitled to such indemnification or reimbursement or
advancement of expenses in any court of competent jurisdiction. The burden of
proving that such indemnification or reimbursement or advancement of expenses is
not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board, its independent legal counsel and its
stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board, its independent legal counsel and its stockholders) that
such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such proceeding.
10.8. Any director or officer of the Corporation serving in
any capacity of (a) another corporation of which a majority of the shares
entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation or (b) any employee benefit plan of the
Corporation or any corporation referred to in clause (a) shall be deemed to be
doing so at the request of the Corporation.
10.9. Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to this
Section 10 may elect to have the right to indemnification or reimbursement or
advancement of expenses
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interpreted on the basis of the applicable law in effect at the time of the
occurrence of the event or events giving rise to the applicable Proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; PROVIDED, HOWEVER, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be determined
by the law in effect at the time indemnification or reimbursement or advancement
of expenses is sought.
11. ADOPTION, AMENDMENT AND/OR REPEAL OF BY-LAWS. The Board may
from time to time adopt, amend or repeal the By-laws of the Corporation;
PROVIDED, HOWEVER, that any By-laws adopted or amended by the Board may be
amended or repealed, and any By-laws may be adopted, by the stockholders of the
Corporation by vote of a majority of the holders of shares of stock of the
Corporation entitled to vote in the election of directors of the Corporation.
12. STOCKHOLDER MEETINGS. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected at a duly called
annual or special meeting of such holders and may also be effected by any
consent in writing of such holders in lieu of a meeting. At any annual meeting
or special meeting of stockholders of the Corporation, only such business shall
be conducted as shall have been brought before such meeting in the manner
provided by the By-laws of the Corporation.
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IN WITNESS WHEREOF, The Penn Traffic Company has caused this Second
Amended and Restated Certificate of Incorporation to be signed by its duly
authorized officer on April 13, 2005.
By: /s/ Francis D. Price, Jr.
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Name: Francis D. Price, Jr.
Title: Vice President
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