THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
PRIME SUCCESSION HOLDINGS, INC.
(Originally Incorporated on October 31, 1991 as Prime Succession, Inc.)
PRIME SUCCESSION HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware (as amended from time to time, the
"General Corporation Law") as follows:
FIRST: The Corporation's name is Prime Succession Holdings,
Inc.
SECOND: A petition for reorganization under Chapter 11 of the
Bankruptcy Code, 11 U.S.C. ss.ss. 101 ET SEQ., for the Corporation having been
filed on July 12, 2000 in the United States Bankruptcy Court for the District of
Delaware, and under the Amended Joint Plan of Reorganization dated August 21,
2000 (the "Plan"), as the same may be amended or modified, from time to time,
and INTER ALIA, Sections 1123 and 1129 of the Bankruptcy Code, 11 U.S.C. ss.ss.
1123 and 1129, in accordance with Section 303 of the General Corporation Law and
pursuant to the order of said court dated _______, this Third Amended and
Restated Certificate of Incorporation (as amended
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from time to time, the "Restated Certificate of Incorporation") restates and
further amends the provisions of the Certificate of Incorporation of the
Corporation.
THIRD: The text of the Certificate of Incorporation of the
Corporation, as heretofore amended or supplemented, is hereby restated and
further amended to read in its entirety as follows:
1. NAME. The name of the corporation is Prime Succession
Holdings, Inc.
2. ADDRESS; REGISTERED OFFICE AND AGENT. The address of
the Corporation's registered office is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, State of Delaware
19801; and its registered agent at such address is The Corporation Trust
Company.
3. PURPOSES. The purpose of the Corporation is to engage
in, carry on and conduct any lawful act or activity for which corporations may
be organized under the General Corporation Law.
4. NUMBER OF SHARES. The total number of shares of stock
that the Corporation shall have authority to issue is: ten thousand (10,000),
all of which shall be shares of common stock of the par value of $.01 each
("Common Stock").
To the extent required by section 1123(a)(6) of the 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) of the Bankruptcy Code and is
applicable only for so long as such section is in effect and application to the
Corporation.
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5. COMMON STOCK. Except as otherwise provided by law,
the holders of Common Stock shall exclusively possess all voting power and each
share of Common Stock shall have one vote.
6. AUTOMATIC CONVERSION.
(i) Whenever a holder of a note is required to
convert his or her Note into shares of Common Stock in accordance with the terms
of the Indenture, such Notes shall, effective as of the Conversion Date and
without further action by the Corporation, for all purposes be deemed exchanged
for that number of Common Stock determined by dividing the principal amount of
the Note (or the portion thereof being so converted) by the Conversion Price in
effect on the Conversion Date, and the Corporation shall, in furtherance of the
foregoing and for ease of administration, upon request from such holder (or the
Trustee on behalf of such holder) and surrender of the Note, immediately issue a
certificate(s) for the correct number of fully paid and non-assessable shares of
Common Stock as determined above by reference to the Conversion Price. Neither
the holder nor the Trustee shall be required to pay any transfer or other tax in
connection with such exchange. Any such taxes or other fees or expenses in
connection with such exchange shall be paid by the Corporation.
(ii) Upon such Conversion Date, such holder shall
be treated as the holder of such shares of Common Stock issued or deemed issued
to it in accordance with clause (i) above. The Corporation shall give effect to
such conversion in connection with the setting of any record date for any
stockholder action without regard to whether
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certificates for the Common Stock issuable in connection with the conversion
described above have actually been issued.
(iii) The Corporation shall at all times reserve
and keep available, free of preemptive rights, out of its authorized but
unissued Common Stock, solely for the purpose of issuance and delivery, pursuant
to the Indenture, the maximum number of shares of Common Stock that may be
issuable upon the conversion of Notes in accordance with the Indenture. If any
shares of Common Stock require registration with or approval of any governmental
authority under any federal or state law before such shares of Common Stock may
be issued, the Corporation will cause such shares to be duly registered or
approved, as the case may be. All shares of Common Stock that are issued
pursuant to the terms of the Indenture will, upon issue, be validly issued,
fully paid and non-assessable and free from all taxes, liens and charges. The
Corporation shall, from time to time, if necessary, amend this Restated
Certificate of Incorporation to increase its authorized capital stock and take
such other actions as may be necessary to permit the issuance from time to time
of shares of Common Stock upon the conversion of Notes described in the
Indenture and in this Section 6.
7. TRANSFER RESTRICTIONS. Until the Notes have either
been paid in full or converted in Common Stock as described in Section 6 above,
no Common Stock issued under the Plan or in accordance with Section 6 above may
be transferred by the holder thereof (including any subsequent transferees)
unless a proportionate share of the then outstanding Notes are also transferred
to the subject transferee, and any transfer which fails to comply with this
Section 7 shall be void AB INITIO. Each holder of
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Common Stock who requests registration of transfer of such Common Stock shall be
deemed to have represented and warranted to the Corporation that such transfer
complies with the foregoing provision of this Section 7, PROVIDED, HOWEVER, that
the Corporation or its transfer agent may, at its discretion, condition the
registration of transfer of such Common Stock upon receipt of documentation
sufficient to establish that such conditions have, in fact, been complied with.
8. CERTAIN DEFINITIONS. As used in this Restated
Certificate of Incorporation, unless the context otherwise requires, the term:
"Conversion Date" shall have the meaning assigned to such term
in the Indenture.
"Conversion Price" shall having the meaning assigned to such
term in the Indenture.
"Indenture" shall mean that certain Indenture dated as of
________, 2000 between the Corporation and the Trustee, as the same may be
amended, modified and in effect from time to time.
"Notes" shall mean those 14.25% Mandatorily Convertible Senior
Subordinated Notes due 2004 issued by the Corporation under the Indenture, as
the same may be amended, modified and in effect from time to time.
"Trustee" shall mean United States Trust Company of New York
or any trustee successor in such capacity under the Indenture.
9. ELECTION OF DIRECTORS. Members of the Board of
Directors of the Corporation (the "Board") may be elected only by a plurality of
the votes cast at the
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annual meeting of stockholders by the holders of record of the Corporation's
issued and outstanding shares of capital stock present in person or represented
by proxy and entitled to vote thereat.
10. SECTION 203. Pursuant to Section 203(b) of the
General Corporation Law, the Corporation hereby expressly opts not to be
governed by Section 203 of the General Corporation Law.
11. LIMITATION OF LIABILITY. 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, 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 General Corporation Law
or (d) for any transaction from which the director derived any improper personal
benefits. Any amendment, modification or repeal of the foregoing sentence shall
not adversely affect any right or protection of a director of the Corporation
hereunder in respect of any act or omission occurring prior to the time of such
amendment, repeal or modification.
12. INDEMNIFICATION.
(a) INDEMNITY UNDERTAKING. To the fullest extent
permitted by law (including, without limitation, Section 145 of the General
Corporation 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"),
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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 in any capacity at the request of the
Corporation for any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise (an "Other Entity"), against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees and disbursements). Persons who
are not directors or officers of the Corporation may be similarly indemnified in
respect of service to the Corporation or to an Other Entity at the request of
the Corporation to the extent the Board of Directors at any time specifies that
such persons are entitled to the benefits of this Section 12.
(b) ADVANCEMENT OF EXPENSES. 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 disbursements, incurred in
connection with any Proceeding, in advance of the final disposition of such
Proceeding; PROVIDED, HOWEVER, that, if required by the General Corporation Law,
such expenses incurred by or on behalf of any such director, 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,
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
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is no further right of appeal that such director, officer or other person is not
entitled to be indemnified for such expenses.
(c) RIGHTS NOT EXCLUSIVE. The rights to
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Section 12 shall not be deemed exclusive of any other
rights which a person seeking indemnification or reimbursement or advancement of
expenses may have or to which such person hereafter may be entitled under any
statute, this Restated Certificate of Incorporation, the Restated By-Laws of the
Corporation, any agreement, 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.
(d) CONTINUATION OF BENEFITS. The rights to
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Section 12 shall continue as to a person who has
ceased to be a director or officer (or other person indemnified hereunder) of
the Corporation and shall inure to the benefit of the executors, administrators,
legatees and distributees of any such person.
(e) INSURANCE. 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, 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
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Section 12, the Restated By-Laws of the Corporation or under Section 145 of the
General Corporation Law or any other provision of law.
(f) BINDING EFFECT. The provisions of this
Section 12 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 12 is in effect and/or any other person indemnified hereunder, on the
other hand, pursuant to which the Corporation and each such director, officer or
other person intend to be legally bound. No repeal or modification of this
Section 12 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.
(g) PROCEDURAL RIGHTS. The rights to
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Section 12 shall be 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 of
Directors, 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 of Directors,
its independent legal counsel and its stockholders) that such person is not
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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.
(h) SERVICE DEEMED AT CORPORATION'S REQUEST. Any
director or officer of the Corporation serving in any capacity (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, in each case, to be doing so at the request of the
Corporation.
(i) ELECTION OF APPLICABLE LAW. Any person
entitled to be indemnified or to receive reimbursement or advancement of
expenses as a matter of right pursuant to this Section 12 may elect to have the
right to indemnification or reimbursement or advancement of expenses 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
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indemnification or reimbursement or advancement of expenses is sought.
13. BY-LAWS. The Restated By-Laws of the Corporation may
be amended, restated or repealed in whole or in part by vote of the holders of
record of more than a majority of the Corporation's issued and outstanding
shares of capital stock present in person or represented by proxy and entitled
to vote thereat.
14. COMPROMISE, ARRANGEMENT OR 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, 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 the General
Corporation Law or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of the General Corporation Law, order a meeting of the creditors or
class of creditors, and/or of the 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 of this Corporation, as the case may be,
agrees to any compromise or arrangement and to any reorganization of this
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 of this Corporation,
as the case may be, and
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also on this Corporation.
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IN WITNESS WHEREOF, this Third Amended and Restated
Certificate of Incorporation of the Corporation, which restates, integrates and
amends the provisions of the Certificate of Incorporation of the Corporation,
has been executed by Arthur J. Ansin, acting in his capacity as Secretary of the
Corporation, this __th day of _____________, 2000.
PRIME SUCCESSION HOLDINGS, INC
_______________________________________
Name: Arthur J. Ansin
Title: Secretary
