RESTATED
CERTIFICATE OF INCORPORATION
OF
PRIME SUCCESSION, INC.
Prime Succession, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
I. The name of the Corporation is "Prime Succession, Inc." The
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on October 31, 1991.
II. The text of the Certificate of Incorporation as amended
heretofore is hereby further amended and restated to read as herein set forth in
full:
FIRST. Name. The name of the Corporation is:
PRIME SUCCESSION HOLDINGS, INC.
SECOND. Registered Office and Registered Agent. The registered
office and registered agent of the Corporation is The Corporation Trust Company,
1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
THIRD. Purpose. The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
FOURTH. (a) Name of Shares. The total number of shares of all
classes of capital stock which the Corporation shall have authority to issue is
21,000 shares, consisting of 1,000 shares of Common Stock, par value $.01 per
share ("Common Stock"), and 20,000 shares of 10% Pay-In-Kind Cumulative
Preferred Stock, par value $.01 per share ("10% PIK Preferred Stock").
(b) Reclassification of Previously Existing Shares. Each of
the shares of common stock of the Corporation issued and outstanding upon the
filing of this Restated Certificate of Incorporation, and after giving effect to
the repurchase of Common Stock being effected concurrently with the filing of
this Restated Certificate of Incorporation, is hereby reclassified into 100
shares, each of which shares shall be a fully paid and nonassessable share of
Common Stock.
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FIFTH. Designation of Classes and Series; Relative Rights,
etc. The designations, powers, preferences, rights, qualifications, limitations
and restrictions in respect of the shares of each class is as follows:
(a) Common Stock. Except as otherwise required by law, the
holders of the Common Stock shall exclusively possess all voting power
and each share of Common Stock shall have one vote.
(b) Preferred Stock.
1. Designation and Amount. The shares of preferred stock shall
be designated as "10% Pay-In-Kind Cumulative Preferred Stock" (the 10%
PIK Preferred Stock"). The par value of the 10% PIK Preferred Stock
shall be $0.01 per share. All shares of 10% PIK Preferred Stock shall
be identical to each other in all respects, and the liquidation
preference of the 10% PIK Preferred Stock shall be $10,000 per share
(the "Liquidation Value").
2. Rank. The 10% PIK Preferred Stock shall, with respect to
rights on liquidation, winding up and dissolution, rank (i) senior to
the Common Stock and to all classes and series of stock of the
Corporation now or hereafter authorized, issued or outstanding which by
their terms expressly provide that they are junior to the 10% PIK
Preferred Stock or which do not specify their rank (collectively with
the common stock of the Corporation, the "Junior Securities"); (ii) on
a parity with each other class of capital stock or series of preferred
stock issued by the Corporation after the date hereof the terms of
which specifically provide that such class or series will rank on a
parity with the 10% PIK Preferred Stock as to dividend distributions
and distributions upon the liquidation, winding up and dissolution of
the Corporation (collectively referred to as "Parity Securities"); and
(iii) junior to each other class of capital stock which may be
authorized by amendment to this Restated Certificate of Incorporation
approved in accordance with Article Eighth hereof and issued by the
Corporation after the date hereof which specifically provide that such
class or series will rank senior to the 10% PIK Preferred Stock as to
dividend distributions or distributions upon the liquidation, winding
up and dissolution of the Corporation (collectively referred to as
"Senior Securities").
3. Dividends. (a) Beginning on the first day on which shares
of 10% PIK Preferred Stock are issued (the "Issue Date"), the holders
of shares of 10% PIK Preferred Stock shall be entitled to receive, out
of funds legally available therefor, dividends at the annual rate per
share of 10%. Such dividends shall be cumulative and shall accrue
(whether or not declared) and be payable quarterly in arrears on
November 26, February 26, May 26 and August 26 of each year (each such
date being a "Dividend Payment Date"), to holders of record at the
close of business on the fifteenth day next preceding the relevant
Dividend Payment Date (such date, the "Record Date"), in preference to
dividends on the Junior Securities, commencing on the Dividend Payment
Date next succeeding the Issue Date.
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(b) Dividend payments with respect to such shares of 10% PIK
Preferred Stock in respect of each quarterly dividend period ending on
or prior to the tenth anniversary of the Issue Date ("Cash Payment
Date") (and any applicable Additional Dividends (as defined in Section
3(e) hereof)) shall be made in additional shares of 10% PIK Preferred
Stock. After the Cash Payment Date, dividends and Additional Dividends
on such 10% PIK Preferred Stock shall be paid only in cash, subject to
the continued accrual of dividends as provided in Section 3(c).
Dividend payments made or Additional Dividends paid in shares of 10%
PIK Preferred Stock shall be made by issuing a ratably proportionate
number of shares (or fractions thereof) calculated pursuant to Section
3(a). All shares of 10% PIK Preferred Stock issued as a dividend or in
payment of Additional Dividends with respect to the 10% PIK Preferred
Stock will thereupon be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive rights.
(c) In the case of shares of 10% PIK Preferred Stock issued on
the Issue Date, dividends on such shares shall accrue (whether or not
declared) and be cumulative from such date. In the case of shares of
10% PIK Preferred Stock issued as a dividend on shares of 10% PIK
Preferred Stock, dividends on such shares shall accrue (whether or not
declared) and be cumulative from the relevant Accrual Date as
hereinafter defined. The date (the "Accrual Date") from which shares of
10% PIK Preferred Stock issued as dividends on a Dividend Payment Date
shall accrue dividends (at the per annum rate per share of 10% as set
forth in Section 3(a) hereof) shall be August 26 if such shares are
issued on a Dividend Payment Date that falls on August 26 or the next
succeeding August 26 if such shares are issued on a Dividend Payment
Date that is not August 26. In the case of shares of 10% PIK Preferred
Stock issued in payment of Additional Dividends, dividends shall accrue
and be cumulative from the date on which such Additional Dividends are
paid. The purpose of the foregoing provisions is to provide for the
quarterly declaration and payment of dividends but on an annually
compounded basis.
(d) Each fractional share of 10% PIK Preferred Stock
outstanding shall be entitled to a ratably proportionate amount of all
dividends and Additional Dividends accruing with respect to each
outstanding share of 10% PIK Preferred Stock pursuant to Section 3(a),
and all such dividends with respect to such outstanding fractional
shares shall be cumulative and shall accrue (whether or not declared),
and shall be payable in the same manner and at such times as provided
for in Section 3(b). Each fractional share of 10% PIK Preferred Stock
outstanding shall also be entitled to a ratably proportionate amount of
any other distributions made with respect to each full outstanding
share of such 10% PIK Preferred Stock and all such distributions shall
be payable in the same manner and at the same time as distributions on
each outstanding share of 10% PIK Preferred Stock.
(e) Accrued but unpaid dividends for any past dividend periods
may be declared by the Board of Directors and paid on any date fixed by
the Board of Directors, whether or not a regular Dividend Payment Date,
to holders of record on the books of the Corporation on such record
date as may be fixed by the Board of
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Directors, which record date shall be not less than 10 days, and not
more than 60 days, prior to the payment date thereof. Holders of 10%
PIK Preferred Stock will not be entitled to any dividends, whether
payable in cash, property or stock, in excess of the full cumulative
dividends provided for herein except as provided in the next sentence.
If any dividend is not paid by the Accrual Date relating to the
Dividend Payment Date therefor (whether or not declared), additional
dividends shall accrue on such unpaid dividend at the annual rate of
10% compounded annually ("Additional Dividends") from such relevant
Accrual Date to the date such dividend is paid. Dividends payable on
the 10% PIK Preferred Stock for a period less than a full annual period
shall be computed on the basis of a 365-(or 366-, as the case may be)
day year for the actual days elapsed.
(f) 1. (i) So long as any shares of the 10% PIK Preferred
Stock are outstanding, the Corporation shall not make any payment on
account of, or set apart for payment money for a sinking or other
similar fund for, the purchase, redemption or retirement of, any Junior
Securities or any warrants, rights, calls or options exercisable for or
convertible into any Junior Securities, whether directly or indirectly,
and whether in cash, obligations or shares of the Corporation or other
property (other than dividends or distributions payable in additional
shares of Junior Securities to holders of Junior Securities), and shall
not permit any corporation or other entity directly or indirectly
controlled by the Corporation to purchase or redeem any Junior
Securities or any warrants, rights, calls or options exercisable for or
convertible into any Junior Securities.
(ii) (A) Until the tenth anniversary of the Issue Date,
without the prior written consent of the holders of 2/3 of the then
outstanding 10% PIK Preferred Stock, so long as any shares of the 10%
PIK Preferred Stock are outstanding, the Corporation shall not declare,
pay or set apart for payment any dividend or make any distribution or
payment on any Junior Securities or Parity Securities, or make any
payment on account of, or set apart for payment money for a sinking or
other similar fund for, the purchase, redemption or retirement of, any
Parity Securities or any warrants, rights, calls or options exercisable
for or convertible into any Parity Securities, whether directly or
indirectly, and whether in cash, obligations or shares of the
Corporation or other property (other than dividends or distributions
payable in additional shares of Junior Securities to holders of Junior
Securities), and shall not permit any corporation or other entity
directly or indirectly controlled by the Corporation to purchase or
redeem any Parity Securities or any warrants, rights, calls or options
exercisable for or convertible into any Parity Securities.
(B) Without the prior written consent of the holders of 2/3 of
the then outstanding 10% PIK Preferred Stock, so long as any shares of
the 10% PIK Preferred Stock are outstanding, the Corporation shall not
declare, pay or set apart for payment any dividend or make any
distribution or payment on any Junior Securities or Parity Securities,
or make any payment on account of, or set apart for payment money for a
sinking or other similar fund for, the purchase, redemption or
retirement of, any Parity Securities or any warrants, rights, calls or
options exercisable for or convertible into
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any Parity Securities, whether directly or indirectly, and whether in
cash, obligations or shares of the Corporation or other property (other
than dividends or distributions payable in additional shares of Junior
Securities to holders of Junior Securities), and shall not permit any
corporation or other entity directly or indirectly controlled by the
Corporation to purchase or redeem any Parity Securities or any
warrants, rights, calls or options exercisable for or convertible into
any Parity Securities unless, prior to or at the time of such
declaration, payment, setting apart for payment, purchase, redemption,
retirement or distribution, as the case may be, the Corporation shall
have paid in cash all accrued (whether or not declared) and unpaid
dividends and Additional Dividends on the outstanding shares of 10% PIK
Preferred Stock and shall have made provision for payment in cash of
the then current quarterly dividend.
(g) Notwithstanding Section 3(f)(ii), whenever dividends on
the 10% PIK Preferred Stock are in arrears, the Corporation shall not
declare, pay or set apart for payment dividends on or make any other
distribution in respect of any Parity Securities, except dividends paid
pro rata or on some lesser proportion than paid on the 10% PIK
Preferred Stock.
4. Liquidation Preference. (a) In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of shares of 10% PIK Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders an amount in
cash equal to 100% of the Liquidation Value for each share outstanding,
plus an amount in cash equal to all accrued (whether or not declared)
but unpaid dividends and Additional Dividends thereon to the date of
liquidation, dissolution or winding up, before any payment shall be
made or any assets distributed to the holders of any of the Junior
Securities. If the assets of the Corporation are not sufficient to pay
in full the liquidation payments payable to the holders of outstanding
shares of the 10% PIK Preferred Stock and any Parity Securities, then
the holders of all such shares shall share ratably in such distribution
of assets in accordance with the amount which would be payable on such
distribution if the amounts to which the holders of outstanding shares
of 10% PIK Preferred Stock and the holders of outstanding shares of
such Parity Securities are entitled were paid in full.
(b) For the purposes of this Section 4, neither the voluntary
sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property or assets of the Corporation nor the consolidation or merger
of the Corporation with any one or more other corporations shall be
deemed to be a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, unless such voluntary sale, conveyance,
exchange or transfer shall be in connection with a plan of liquidation,
dissolution or winding up of the Corporation.
(c) Whenever the distribution provided for in Section 4 of
Article Fifth shall be payable in property other than cash, the value
of such distribution shall be the fair market value of such property as
determined in good faith by the Board of Directors of the Corporation.
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5. Optional Redemption. The Corporation may, at any time, at
its option, redeem, in the manner provided in Section 6 hereof, all or
any portion of the shares of the 10% PIK Preferred Stock, at a
redemption price in cash per share equal to 100% of the Liquidation
Value thereof plus 100% of the sum of accrued (whether or not declared)
and unpaid dividends thereon (including an amount equal to a prorated
dividend from the last Dividend Payment Date immediately prior to the
redemption date) and Additional Dividends. A holder of 10% PIK
Preferred Stock shall be entitled to receive such redemption price in
cash with respect to each share of 10% PIK Preferred Stock held by such
holder to be redeemed.
6. Procedure for Redemption.
(a) In the event that the Corporation shall redeem shares of
10% PIK Preferred Stock pursuant to Section 5 hereof, notice of such
redemption shall be mailed by first- class mail, postage prepaid, and
mailed not less than 30 days nor more than 60 days prior to the
redemption date to the holders of record of the shares to be redeemed
at their respective addresses as they shall appear in the records of
the Corporation; provided, however, that failure to give such notice or
any defect therein or in the mailing thereof shall not affect the
validity of the proceeding for the redemption of any shares so to be
redeemed except as to the holder to whom the Corporation has failed to
give such notice or except as to the holder to whom notice was
defective. Each such notice shall state: (i) the redemption date; (ii)
the number of shares of 10% PIK Preferred Stock to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed; (iii) the redemption price in
cash; (iv) the place or places where certificates for such shares are
to be surrendered for payment of the redemption price and (v) that
dividends (and Additional Dividends) on the shares to be redeemed will
cease to accrue on such redemption date. If less than all of the
outstanding shares of 10% PIK Preferred Stock are to be redeemed by the
Corporation the shares to be redeemed by the Corporation shall be
redeemed pro rata from among the shares of 10% PIK Preferred Stock
outstanding.
(b) Notice by the Corporation having been mailed as provided
in Section 6(a) hereof, and provided that on or before the applicable
redemption date funds necessary for such redemption shall have been set
aside by the Corporation, separate and apart from its other funds, in
trust for the pro rata benefit of the holders of the shares so called
for or entitled to redemption, so as to be and to continue to be
available therefor, then, from and after the redemption date (unless
the Corporation defaults in the payment of the redemption price, in
which case such rights shall continue until the redemption price is
paid), dividends (and Additional Dividends thereon) on the shares of
10% PIK Preferred Stock so called for or entitled to redemption shall
cease to accrue, and said shares shall no longer be deemed to be
outstanding and shall not have the status of shares of 10% PIK
Preferred Stock, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive the applicable
redemption price and any accrued and unpaid dividends and Additional
Dividends from the Corporation to the date of redemption) shall cease.
Upon surrender of the
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certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so
require and a notice by the Corporation shall so state), such shares
shall be redeemed by the Corporation at the applicable redemption price
as aforesaid. In the event that fewer than all the shares represented
by any such certificate are redeemed, a new certificate or certificates
shall be issued representing the unredeemed shares without cost to the
holder thereof.
7. Reacquired Shares. Shares of 10% PIK Preferred Stock that
have been issued and reacquired in any manner, including shares
reacquired by purchase or redemption, shall (upon compliance with any
applicable provisions of the laws of the State of Delaware) have the
status of authorized and unissued shares of preferred stock
undesignated as to class and series and may be redesignated and
reissued as part of any series of any class of preferred stock other
than the 10% PIK Preferred Stock.
8. Voting Rights. The 10% PIK Preferred Stock, except as
otherwise required by law, shall be non-voting.
9. Conversion or Exchange. The holders of shares of 10% PIK
Preferred Stock shall not have any rights hereunder to convert such
shares into or exchange such shares for shares of any other class or
classes or of any other series of any class or classes of capital stock
of the Corporation.
10. Certain Covenants. Any holder of 10% PIK Preferred Stock
may proceed to protect and enforce its rights and the rights of such
holders by any available remedy by proceeding at law or in equity to
protect and enforce any such rights, whether for the specific
enforcement of any provision in this Restated Certificate of
Incorporation or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.
11. Definitions. For the purposes of this Restated Certificate
of Incorporation, the following terms shall have the meanings
indicated:
"Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of
such entity.
"Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
SIXTH. By-Laws. The By-Laws of the Corporation may be amended
in any respect, restated or repealed, in whole or in part, by vote of the
holders of record, present in person or represented by proxy, of 90% of the
Corporation's issued and outstanding shares of capital stock entitled to vote
thereon.
SEVENTH. Indemnification.
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(a) Indemnity Undertaking. To the fullest extent
permitted by law (including, without limitation, Section 145 of the General
Corporation Law of the State of Delaware (as amended from time to time, 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"), 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 Article SEVENTH.
(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 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 Article SEVENTH 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, the Restated Certificate of Incorporation, these
By-Laws, 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 Article SEVENTH shall continue as to a person who has
ceased to be a Director or officer (or other person indemnified hereunder) and
shall inure to the benefit of the executors, administrators, legatees and
distributees of any such person.
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(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 Article SEVENTH or
the Restated Certificate of Incorporation or under Section 145 of the General
Corporation Law or any other provision of law.
(f) Binding Effect. The provisions of this Article
SEVENTH 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 Article
SEVENTH 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 Article
SEVENTH 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 Article SEVENTH 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
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.
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(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 Article SEVENTH 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 indemnification or reimbursement or advancement of expenses
is sought.
EIGHTH. Amendments to Restated Certificate of Incorporation.
This Restated Certificate of Incorporation may be amended in any respect,
restated or repealed, in whole or in part, only by vote of the holders of
record, present in person or represented by proxy, of 90% of the Corporation's
issued and outstanding shares of capital stock entitled to vote thereon.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation
which restates, integrates and amends the provisions of the Certificate of
Incorporation of the Corporation, having been duly adopted in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware, has been executed by its duly authorized officer and has
been affixed hereunto with the corporate seal this 26th day of August 1996.
PRIME SUCCESSION, INC.
By: /s/ Myles S. Cairns
-----------------------------
Name: Myles S. Cairns
Title: CFO, Secretary,
Treasurer
