Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
of
PATHMARK STORES, INC.
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PATHMARK STORES, INC. (originally incorporated as SMG
INTERMEDIATE HOLDINGS CORPORATION XV, the "Corporation") hereby certifies that
this Restated Certificate of Incorporation of PATHMARK STORES, INC. was duly
adopted in accordance with the provisions of section 245 of the General
Corporation Law of the State of Delaware and that it only restates and
integrates and does not further amend the provisions of the Corporation's
Certificate of Incorporation as theretofore amended or supplemented, and that
there is no discrepancy between those provisions and the provisions of the
restated certificate. The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of Delaware on June 5, 1987.
ARTICLE I
Name
Section 1.1. Name. The name of the Corporation is
Pathmark Stores, Inc.
ARTICLE II
Registered Office and Registered Agent
Section 2.1. Office and Agent. The registered office of the
Corporation in the State of Delaware is located at 1013 Centre Road, City of
Wilmington, County of New Castle. The name and address of the Corporation's
registered agent is The Prentice-Hall Corporation System, Inc., 1013 Centre
Road, Wilmington, Delaware, 19805.
ARTICLE III
Corporate Purposes
Section 3.1. Purpose. 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.
ARTICLE IV
Capital Stock
Section 4.1. Shares, Classes and Series Authorized. The total
number of shares of all classes of capital stock which the Corporation shall
have authority to issue is one hundred (100) all of which shall be Common Stock
of the par value of $0.10 each (hereinafter called "Common Stock"). The Common
Stock shall have voting rights for the election of directors and for all other
purposes, each holder of Common Stock being entitled to one vote for each share
thereof held by such holder, except as otherwise required by law.
ARTICLE V
Powers of Board of Directors
Section 5.1. Powers. In furtherance and not in limitation
of the powers conferred by statute, the Board of Directors of the
Corporation is expressly authorized:
(a) To make, alter, amend or repeal the By-Laws, except as
otherwise expressly provided in any By-Law made by the holders of the capital
stock of the Corporation entitled to vote thereon. Any ByLaw may be altered,
amended or repealed by the holders of the capital stock of the Corporation
entitled to vote thereon at any annual meeting or at any special meeting called
for that purpose.
(b) To authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation.
(c) To determine the use and disposition of any surplus and
net profits of the Corporation, including the determination of the amount of
working capital required, to set apart out of any of the funds of the
Corporation, whether or not available for dividends, a reserve or reserves for
any proper purpose and to abolish any such reserve in the manner in which it was
created.
(d) To designate, by resolution passed by a majority of the
whole Board of Directors, one or more committees, each committee
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to consist of one or more directors of the Corporation, which, to the extent
provided in the resolution designating the committee or in the By-Laws of the
Corporation, shall, subject to the limitations prescribed by law, have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize
the seal of the Corporation to be affixed to all papers which may require it.
Such committee or committees shall have such name or names as may be provided
in the By-Laws of the Corporation or as may be determined from time to time
by resolution adopted by the Board of Directors.
(e) To adopt such pension, retirement, deferred compensation
or other employee benefit plans or provisions as may, from time to time, be
approved by it, providing for pensions, retirement income, deferred compensation
or other benefits for officers or employees of the Corporation and of any
corporation which is a subsidiary of the Corporation, or any of them, in
consideration for or in recognition of the services rendered by such officers or
employees or as an inducement to future efforts. No such plan or provision,
which is not at the time of adoption unreasonable or unfair, shall be
invalidated or in any way affected because any director shall be a beneficiary
thereunder or shall vote for any plan or provision under which he may benefit.
(f) To exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and authorities and do
all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware
and of this Certificate of Incorporation and of the By-Laws of the Corporation.
ARTICLE VI
Indemnification of Directors, Officers and Others
Section 6.1. Indemnification by Corporation. (a) Any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was
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serving at the request of the corporation as a director, officer, employee or
agent (including trustee) of another corporation, partnership, joint venture,
trust or other enterprise, shall be indemnified by the Corporation (funds
paid or required to be paid to any person as a result of the provisions of
this Article shall be returned to the Corporation or reduced, as the case may
be, to the extent that such person receives funds pursuant to an
indemnification from any such other corporation or organization) against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
the defense or settlement of such action, suit or proceeding if he acted in
good faith and in a manner he reasonably 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 conduct was
unlawful. Any such person who could be indemnified pursuant to the preceding
sentence except for the fact that the subject action or suit is or was by or
in the right of the Corporation shall be indemnified by the Corporation
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit,
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the Corporation unless and only to the extent that the Court of Chancery of
the State of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(b) To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in paragraph (a) of
this Section 1, or in defense of any claim, issue or matter therein,
including the dismissal of an action without prejudice, he shall be
indemnified by the Corporation against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith without the
necessity of any action being taken by the Corporation other than the
determination, in good faith, that such defense has been successful. In all
other cases wherein indemnification is provided by this Article, unless
ordered by a court, indemnification shall be made by
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the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct
specified in this Article. Such determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable, a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3) by the
holders of a majority of the shares of capital stock of the Corporation
entitled to vote thereon.
(c) The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person
seeking indemnification did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. Entry of a
judgment by consent as part of a settlement shall not be deemed a final
adjudication of liability for negligence or misconduct in the performance of
duty, nor of any other issue or matter.
(d) Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by the director, officer, employee
or agent involved to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(e) The indemnification and advancement of expenses hereby
provided shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such person.
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(f) By action of the Board of Directors, notwithstanding
any interest of the directors in the action, the Corporation, at its expense,
may purchase and maintain insurance, in such amounts as the Board of
Directors deems appropriate, 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, employee or agent
(including trustee) of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or
not the Corporation shall have the power to indemnify him against such
liability under the provisions of this Article or under the provisions of the
General Corporation Law of the State of Delaware.
(g) All rights to indemnification and advancement of
expenses under this Article shall be deemed to be provided by contract
between the Corporation and the director, officer, employee or agent who
serves in such capacity at any time while these by-laws and other relevant
provisions of the General Corporation Law of the State of Delaware and other
applicable law, if any, are in effect.
(h) Any repeal or modification of the foregoing paragraphs
by the stockholders of the Corporation shall not adversely affect any right
or protection of a director, officer, employee or agent of the Corporation
existing at the time of such repeal or modification.
(i) If the General Corporation Law of the State of Delaware
is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, officers, employees or agents, then such
person, in addition to the circumstances in which he is not now personally
liable, shall be free of liability to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended.
(j) For purposes of this Article, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a
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director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position
under the provisions of this Article with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(k) For purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any services as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to any employee
benefit plan, its participants, or beneficiaries; and a person who acted in
good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation", as referred to in this Article.
(1) If this Article or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each person as provided above as to
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including a grand jury proceeding
and an action by the Corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated by
any other applicable law.
ARTICLE VII
Director Liability to the Corporation
Section 7.1. Director Liability. (a) A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breaches 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) under Section 174 of the General Corporation Law
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of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit.
(b) Any repeal or modification of the foregoing paragraph
(a) 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.
(c) If the General Corporation Law of the State of Delaware
is amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then a director of the Corporation, in
addition to the circumstances in which he is not now personally liable, shall
be free of liability to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended.
ARTICLE VIII
Reservation of Right to Amend Certificate of Incorporation
Section 8.1. Amendment. 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
law, and all the provisions of this Certificate of Incorporation and all
rights and powers conferred in this Certificate of Incorporation on
stockholders, directors and officers are subject to this reserved power.
ARTICLE IX
Reorganization
Section 9.1. Reorganization. Whenever a compromise or
arrangement is proposed between this Corporation and its creditors or any
class of them and/or between this 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 this Corporation or of
any creditor or stockholder thereof or on the application of any receiver or
receivers appointed for this 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
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the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this 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 the stockholders
of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as 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 the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
IN WITNESS WHEREOF, PATHMARK STORES, INC. has caused this
Restated Certificate of Incorporation to be signed by its Chairman and
President and attested by its Secretary on the 20th day of June, 1997.
PATHMARK STORES, INC.
By: /s/James L. Donald
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Name: James L. Donald
Title: Chairman, President and
Chief Executive Officer
ATTEST:
By: /s/Marc A. Strassler
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Name: Marc A. Strassler
Title: Secretary
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