Exhibit 2.1
FORM OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PATHMARK STORES, INC.
Pathmark Stores, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify as follows:
1. The original Certificate of Incorporation of the Corporation
was filed in the Office of the Secretary of State of the State of Delaware on
June 5, 1987.
2. On June 7, 2000, the Corporation proposed a Joint Plan of
Reorganization under chapter 11 of title 11, United States Code for the
Corporation, SMG-II Holdings Corporation, ("SMG-II"), Supermarkets General
Holdings Corporation ("Holdings"), PTK Holdings, Inc. ("PTK"), Plainbridge, Inc.
("Plainbridge") and Pathmark Risk Management Corporation ("Riskco") (the "Plan")
to the holders of its then outstanding notes and debentures plus of the 11.625%
subordinated notes of Holdings guaranteed by the Corporation (collectively, the
"Bondholders"). The Plan was accepted by the Bondholders on July 7, 2000.
3. The Plan provides, among other things, for the following:
To cancel and terminate all notes, instruments, certificates,
guaranties and other documents evidencing all existing claims against,
or equity interests in, the Corporation, SMG-II, Holdings and PTK,
including all common stock and preferred stock of such companies, and
to exchange such notes, instruments, certificates, guaranties or other
documents for 30,000,000 newly issued shares of Common Stock of the
Corporation and 5,294,118 newly issued warrants of the Corporation.
To merge the following companies in the following order: (i)
PTK with the Corporation, with the Corporation being the surviving
entity, (ii) Holdings with the Corporation, with the Corporation being
the surviving entity, and (iii) SMG-II with the Corporation, with the
Corporation being the surviving entity. Except as otherwise provided by
the Plan, all property of the Corporation, SMG-II, Holdings and PTK or
their estates and any property acquired by the Corporation, SMG-II,
Holdings and PTK is to vest in the Corporation.
To file this Amended and Restated Certificate of Incorporation
of the Corporation with the Secretary of the State of the State of
Delaware in accordance with Sections 102 and 103 of the Delaware
General Corporation Law.
1
<PAGE>
4. The Plan and this Amended and Restated Certificate of
Incorporation are to become effective on the date of implementation of the
steps described in introductory clause 3 of this Amended and Restated
Certificate of Incorporation.
The text of the Certificate of Incorporation of the Corporation, as amended and
restated herein, is as follows:
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. Authorized Capital. The Corporation shall have
authority to issue one hundred million (100,000,000) shares of stock of the
Corporation, all of which shall be common stock, par value $ 0.01 per share (the
"Common Stock").
Section 4.2 Voting Rights. The holders of shares of Common
Stock shall have the right to vote on all matters, for which shareholders of the
Corporation shall be
2
<PAGE>
entitled to vote thereon at all meetings of the shareholders of the Corporation,
and shall be entitled to one vote for each share of Common Stock entitled to
vote at such meeting.
Section 4.3 Dividend Rights. The holders of shares of Common
Stock shall be entitled to receive and to share equally, share for share, in
dividends or distributions whether payable in cash, in property, or in
securities of the Corporation, when, as, and if declared by the Board of
Directors of the Corporation, out of funds legally available therefor.
Section 4.4 No Redemption, Conversion and Preemptive Rights.
The holders of shares of Common Stock shall have no redemption, conversion or
preemptive rights to purchase or subscribe for securities of the Corporation.
Section 4.5 Warrants. The Corporation may from time to time
issue warrants to holders of Common Stock, notes or debentures of the
Corporation, each time as provided under a warrant agreement between the
Corporation and a warrant agent.
ARTICLE V
Board of Directors
Section 5.1 Elections. Elections of directors of the
Corporation need not be by written ballot, except and to the extent provided in
the By-laws of the Corporation.
Section 5.2 Liability of Directors. To the fullest extent
permitted by the General Corporation Law as currently in effect or as it may
hereafter be amended, no director of the Corporation shall be personally liable
to the Corporation or its shareholders for monetary damages and for breach of
fiduciary duty as a director. No amendment, modification or repeal of this
Section 5.2 shall adversely affect any rights or protection of a director that
exists at the time of such amendment, modification or repeal.
ARTICLE VI
Power of Board of Directors
Section 6.1. Powers. In furtherance and not in limitation of
the powers conferred by statue, the Board of Directors of the Corporation is
expressly authorized:
3
<PAGE>
(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 By-Law
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 the 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
entire Board of Directors, one or more committees, each consisting of
one or more directors of the Corporation; provided that, so long as any
securities of the Corporation are listed on any National Exchange or
National Market (such as the Nasdaq National Market), the Corporation
shall have an audit committee consisting of at least three Independent
Directors, at least one of whom must have past employment experience in
finance or accounting, with the remaining independent directors on such
audit committee having understanding of the fundamental financial
statements. To the extent provided in the resolution designating the
committee or in the By-Laws of the Corporation, any such committee,
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. For the purpose of this Section 6.1(d), an Independent
Director shall mean a director who has no relationship to the
Corporation that may interfere with his exercise of independence from
management and the Corporation.
(e) To adopt such pension, retirement, deferred compensation
or other employee benefit plan or provisions as may, from time to time,
be approved by it, providing for pensions, retirement income, deferred
compensation or other benefits for officers, directors 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.
4
<PAGE>
(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 VII
Indemnification of Directors, Officers and Others
Section 7.1. Indemnification by Corporation. (a) The
Corporation shall indemnify 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 serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with 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. 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.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he 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 another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit 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 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 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 shall deem proper.
5
<PAGE>
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 Sections (a)
and (b) of this Article VII, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Any indemnification under Sections (a) and (b) of this Article
VII (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the present and former director, officer, employee
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in such Sections (a) and (b).
Such determination shall be made with respect to a person who is a
director or officer at the time of such determination (1) by the Board
of Directors of the Corporation by a majority vote of a quorum (quorum
shall consist of one-third of the total number of directors
constituting the whole Board of Directors, but in no event shall a
quorum be constituted by less than two directors) consisting of
directors who were not parties to such action, suit or proceeding, or
(2) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum or (3) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders of the
Corporation.
Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative 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 or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the Corporation authorized in
this Article VII. Such expenses (including attorneys' fees) incurred by
former directors and officers or other employees and agents may be so
paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
The indemnification and advancement of expenses provided by,
or granted pursuant to, the other sections of this Article VII shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
law, 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.
The Corporation may 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 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 would have the power to indemnify him against such
liability under this Article VII.
6
<PAGE>
For purposes of this Article VII, 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 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 VII with respect to the resulting or surviving corporation
as he would have with respect to such constituent corporation if its
separate existence had continued.
For purposes of this Article VII, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on,
or involves service 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 VII.
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article VII shall, unless otherwise
provided when authorized or ratified, 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 a
person.
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
provision of this Certificate of Incorporation and all rights and powers
conferred in this Certificate of Incorporation on shareholders, 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 shareholders 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
7
<PAGE>
or of any creditor or shareholder thereof or on the application of any receiver
or receivers appointed for this Corporation under the provision 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, and/or of the shareholders or class of shareholders 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 shareholders or class of the
shareholders 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 said application has
been made, be binding on all the creditors or class of creditors, and/or on all
the shareholders or class of shareholders, of this Corporation, as the case my
be, and also on this Corporation.
IN WITNESS WHEREOF, PATHMARK STORES, INC. has caused this
Amended and Restated Certificate of Incorporation to be signed by its Chairman
and President and attested by its Secretary on the ______day of [August], 2000.
PATHMARK STORES, INC.
By:
---------------------------------
Name: James L. Donald
Title: Chairman, President and
Chief Executive Officer
ATTEST:
By:
------------------------------
Name: Marc A. Strassler
Title: Secretary
