AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

OF

 

STAKTEK HOLDINGS, INC.

 

Staktek Holdings, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:

 

1. That this corporation was originally incorporated on May 9, 2003 under the name Staktek Holdings, Inc., pursuant to the DGCL.

 

2. Pursuant to Sections 228, 242 and 245 of the DGCL, this Amended and Restated Certificate of Incorporation was duly adopted and restates and integrates and further amends the provisions of the certificate of incorporation of this corporation as currently in effect.

 

3. The text of the certificate of incorporation of this corporation is hereby amended and restated in its entirety to read as follows:

 

ARTICLE I

 

The name of the corporation is Staktek Holdings, Inc.

 

ARTICLE II

 

The address of the corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of the corporation’s registered agent at such address is the Corporation Trust Company.

 

ARTICLE III

 

The nature of the business and purpose to be conducted or promoted by the corporation are 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

 

The total number of shares of capital stock of all classes which the corporation shall have authority to issue is 105,000,000 shares of which (a) 5,000,000 shares shall be preferred stock, par value $.001 per share (“Preferred Stock”), and (b) 100,000,000 shares shall be common stock, par value $.001 per share (“Common Stock”). Of the five million (5,000,000) shares of Preferred Stock that the corporation shall have authority to issue, 171.01449 shall be designated Redeemable Preferred Stock and shall have the rights, preferences, privileges and limitation as set forth on Exhibit A attached hereto. Effective upon the filing of this Amended and Restated Certificate of Incorporation, each outstanding share of Common Stock shall automatically convert into and represent two and 15/100 (2.15) shares of Common Stock.

 

The number of authorized shares of any class of capital stock of the corporation may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the outstanding Common Stock of the corporation, without the approval of the holders of the Preferred Stock, or of any series thereof, unless the approval of any such holders is required pursuant to the certificate or certificates establishing any series of Preferred Stock. Notwithstanding the foregoing, subject to the rights of the holders of any series of Preferred Stock then outstanding, following the closing of a transaction or series of transactions as a result of which Austin Ventures VII, L.P., Austin Ventures VIII, L.P. and their respective affiliates cease to beneficially hold or control, in the aggregate, at least thirty percent (30%) of the outstanding voting equity securities of the corporation (a “Reduction in Voting Power”), the affirmative vote of the holders of at least two-thirds (2/3) of the shares of capital stock issued and outstanding and entitled to vote thereon, voting together as a single class, shall be required to increase or decrease (but not below the number of shares thereof then outstanding) the number of authorized shares of any class of capital stock of the corporation.

 

Except as otherwise restricted by this Certificate of Incorporation, the corporation is authorized to issue, from time to time, all or any portion of the capital stock of the corporation which may have been authorized but not issued, to such person or persons and for such lawful consideration as it may deem appropriate, and generally in its absolute discretion to determine the terms and manner of any disposition of such authorized but unissued capital stock. Any and all such shares issued for which the full consideration has been paid or delivered shall be deemed fully paid shares of capital stock, and the holder of such shares shall not be liable for any further call or assessment or any other payment thereon.

 

Preferred Stock may be issued from time to time by the Board of Directors as shares of one or more series. Subject to the provisions hereof and the limitations prescribed by law, the Board of Directors is hereby vested with the authority and is expressly authorized, prior to issuance, by adopting resolutions providing for the issuance of, or providing for a change in the number of, shares of any particular series and, if and to the extent from time to time required by law, by filing a certificate pursuant to the Delaware General Corporation Law (or other law hereafter in effect relating to the same or substantially similar subject matter), to establish or change the number of shares to be included in each such series and to fix the designation and relative powers, preferences and rights and the qualifications and limitations or restrictions thereof relating to the shares of each such series. The vested authority of the Board of Directors with respect to each series shall include, but not be limited to, the determination of the following:

 

1. the distinctive serial designation of such series and the number of shares constituting such series;

 

2. the annual dividend rate, if any, on shares of such series and the preferences, if any, over any other series (or of any other series over such series) with respect to dividends, and whether dividends shall be cumulative and, if so, from which date or dates;

 

3. whether the shares of such series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon and after which such shares shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;

 

4. the obligation, if any, of the corporation to purchase or redeem shares of such series pursuant to a sinking fund or purchase fund and, if so, the terms of such obligation;

 

5. whether shares of such series shall be convertible into, or exchangeable for, shares of stock of any other class or classes or any stock of any series of the same class or any other class or classes or any evidences of indebtedness and, if so, the terms and conditions of such conversion or exchange, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any;

 

6. whether the shares of such series shall have voting rights, in addition to the voting rights provided by law, and if so, the terms of such voting rights, including, without limitation, whether such shares shall have the right to vote with the Common Stock on issues on an equal, greater or lesser basis;

 

7. the rights of the shares of such series in the event of a voluntary or involuntary liquidation, dissolution, winding up or distribution of assets of the corporation;

 

8. whether the shares of such series shall be entitled to the benefit of conditions and restrictions upon (i) the creation of indebtedness of the corporation or any subsidiary, (ii) the issuance of any additional stock (including additional shares of such series or of any other series) or (iii) the payment of dividends or the making of other distributions on the purchase, redemption or other acquisition by the corporation or any subsidiary of any outstanding stock of the corporation; and

 

9. any other relative rights, powers, preferences, qualifications, limitations or restrictions thereof relating to any such series.

 

Except where otherwise set forth in the resolution or resolutions adopted by the Board of Directors providing for the issuance of any series of Preferred Stock, the number of shares comprising such series may be increased (but not above the total number of authorized shares of the class) or decreased (but not below the number of shares then outstanding) from time to time by like action of the Board of Directors.

 

Subject to the rights of any outstanding shares of any series of Preferred Stock, this Certificate of Incorporation may be amended from time to time in a manner that would solely modify or change the relative powers, preferences and rights and the qualifications and limitations or restrictions of any issued shares of any series of Preferred Stock then outstanding with the only required vote or consent for approval of such amendment being the affirmative vote or consent of the holders of a majority of the outstanding shares of the series of Preferred Stock so affected provided that the powers, preferences and rights and the qualification and limitations or restrictions of such series after giving effect to such amendment are no greater than the powers, preferences and rights and the qualifications and limitations or restrictions permitted to be fixed and determined by the Board of Directors with respect to the establishment of any new series of shares of Preferred Stock pursuant to the authority vested in the Board of Directors by this Article IV. Approval of any such amendment by the holders of the Common Stock shall not be required and any such amendment shall be deemed not to have affected the holders of the Common Stock adversely.

 

Subject to any rights of the holders of the Preferred Stock, and except as may be expressly provided with respect to the Preferred Stock herein, by law or by the Board of Directors pursuant to this Article IV:

 

1. dividends may be declared and paid or set apart for payment upon Common Stock out of any assets or funds of the corporation legally available for the payment of dividends and may be payable in cash, stock or otherwise when, if and as declared by the Board of Directors;

 

2. the holders of Common Stock shall have the exclusive right to vote for the election of directors and on all other matters requiring stockholder action, each share being entitled to one vote and shall not be entitled to cumulative voting; and

 

3. upon the voluntary or involuntary liquidation, dissolution or winding up of the corporation, after the payment or provision for payment of all debts and liabilities of the corporation and all preferential amounts to which the holders of Preferred Stock are entitled with respect to the distribution of assets or payment of monies, the net assets of the corporation shall be distributed pro rata to the holders of Common Stock in accordance with their respective rights and interests.

 

ARTICLE V

 

The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by this Amended and Restated Certificate of Incorporation or the Bylaws of the corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation. Election of directors need not be by written ballot, unless the Bylaws so provide.

 

ARTICLE VI

 

Any action required or permitted to be taken by the stockholders of the corporation must be effected at a duly called annual or special meeting of stockholders of the corporation or by consent in writing by such stockholders; provided, however, that no action may be effected by any consent in writing by such stockholders unless the corporation is a “Controlled Company” within the meaning of Nasdaq Marketplace Rule 4350(c)(5).

 

ARTICLE VII

 

The Board of Directors is authorized to make, adopt, amend, alter or repeal the Bylaws of the corporation. The stockholders shall also have power to make, adopt, amend, alter or repeal the Bylaws of the corporation as set forth therein.

 

ARTICLE VIII

 

A director of this corporation shall not be personally liable to this corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to this 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 DGCL, or (iv) for any transaction from which the director derived any improper personal benefit. If the DGCL is hereafter amended to further reduce or to authorize, with the approval of this corporation’s stockholders, further reductions in the liability of this corporation’s directors for breach of fiduciary duty, then a director of this corporation shall not be liable for any such breach to the fullest extent permitted by the DGCL as so amended.

 

This corporation shall, to the fullest extent permitted by the DGCL, as it may be amended and supplemented from time to time, indemnify each director and officer whom it shall have power to indemnify under such law against any expenses, liabilities, or other matters referred to in or covered by the DGCL. The indemnification provided for herein shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in their official capacities 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 or officer and shall inure to the benefit of the heirs, executors, and administrators of such a person.

 

Any repeal or modification of the foregoing provisions of this Article VIII shall not adversely affect any right or protection of a director, officer, agent or other person existing at the time of or increase the liability of any director of this corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification. Neither any amendment nor repeal of this Article VIII, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article VIII, shall eliminate or reduce the effect of this Article VIII, in respect of any matter occurring, or any cause of action, suit, claim or proceeding that, but for this Article VIII, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. If the General Corporation Law of the State of Delaware hereafter is amended to authorize further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended General Corporation Law of the State of Delaware.

 

ARTICLE IX

 

The holders of at least a majority of the shares of capital stock issued and outstanding and entitled to vote at any annual or special meeting of the stockholders, voting together as a single class at the next annual meeting or at a duly called and noticed special meeting, shall have power to adopt, amend or repeal this Amended and Restated Certificate of Incorporation including, without limitation, any amendment to increase or decrease (but not below the number of shares then outstanding) the number of authorized shares of any class of capital stock of the corporation. Notwithstanding the foregoing, subject to the rights of the holders of any series of Preferred Stock then outstanding, following the closing of a transaction or series of transactions as a result of which Austin Ventures VII, L.P., Austin Ventures VIII, L.P. and their respective affiliates cease to beneficially hold or control, in the aggregate, at least thirty percent (30%) of the outstanding voting equity securities of the corporation, the affirmative vote of the holders of at least two-thirds of the shares of capital stock issued and outstanding and entitled to vote at any annual or special meeting of the stockholders, voting together as a single class at an annual meeting or at a duly called and noticed special meeting, shall be required to adopt, amend or repeal this Amended and Restated Certificate of Incorporation including, without limitation, any amendment to increase or decrease (but not below the number of shares then outstanding) the number of authorized shares of any class of capital stock of the corporation.

 

 

THE UNDERSIGNED, being a duly authorized officer of this corporation, does make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 8th day of August, 2005.

 

 

 

/s/    STEPHANIE LUCIE        

Stephanie Lucie

Vice President, General Counsel and Corporate Secretary

 

 [As Filed 2008-02-27]

 

 

 

CERTIFICATE OF OWNERSHIP AND MERGER

OF

ENTORIAN TECHNOLOGIES INC.

a Delaware corporation

WITH AND INTO

STAKTEK HOLDINGS, INC.

a Delaware corporation

Pursuant to Section 253 of the General Corporation Law of the State of Delaware

Staktek Holdings, Inc., a Delaware corporation (the "Company"), does hereby certify the following facts relating to the merger (the "Merger") of Entorian Technologies Inc., a Delaware corporation (the "Subsidiary"), with and into the Company, with the Company remaining as the surviving corporation:

FIRST: The Company is incorporated pursuant to the General Corporation Law of the State of Delaware (the "DGCL"). The Subsidiary is incorporated pursuant to the DGCL.

SECOND: The Company is the owner of all of the outstanding shares of the sole class of capital stock of the Subsidiary.

THIRD: The Board of Directors of the Company, by the following resolutions duly adopted by way of unanimous written consent in lieu of a meeting on February 25, 2006, determined to merge the Subsidiary with and into the Company pursuant to Section 253 of the DGCL:

 

WHEREAS, the Board of Directors of the Company has deemed it advisable that the Subsidiary be merged with and into the Company pursuant to Section 253 of the General Corporation Law of the State of Delaware;

 

NOW, THEREFORE, BE IT RESOLVED, that, effective upon the filing of (or at such subsequent time as may be specified in) the Certificate of Ownership and Merger filed in respect thereof (the "Effective Time"), the Subsidiary shall be merged with and into the Company with the Company being the surviving corporation (the "Merger"); and further

 

RESOLVED, that, at any time prior to the Effective Time, the Merger may be amended, modified, terminated or abandoned by action of the Board of Directors of the Company; and further

 

 

RESOLVED, that by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding or treasury share of capital stock of the Company shall remain unchanged and continue to remain outstanding or held in treasury, respectively, as one share of capital stock of the Company, held by the person who was the holder of such share of capital stock of the Company immediately prior to the Merger; and

 

RESOLVED, that by virtue of the Merger and without any action on the part of the holder thereof, each then outstanding share of common stock of the Subsidiary shall be cancelled and no consideration shall be issued in respect thereof; and further

 

RESOLVED, that, at the Effective Time, Article I of the Amended and Restated Certificate of Incorporation of the Company shall be amended to read in its entirety as follows:

ARTICLE I

The name of the corporation is Entorian Technologies Inc.

RESOLVED, that each officer of the Company is authorized to make and execute a Certificate of Ownership and Merger setting forth a copy of these resolutions, and the date of adoption thereof, in the discretion of such officer to specify therein an Effective Time subsequent to the filing thereof and to file the same in the office of the Secretary of State of the State of Delaware; and further

RESOLVED, that in connection with changing the Company's name, each officer of the Company is authorized, in the name and on behalf of the Company to make and execute such additional certificates and to file the same in the office of the Secretary of State of the State of Delaware, in each case as may, in his or her judgment, be required or advisable.

FOURTH: The Company shall be the surviving corporation of the Merger. The name of the surviving corporation shall be amended in the Merger to be "Entorian Technologies Inc."

FIFTH: The Amended and Restated Certificate of Incorporation of the Company as in effect immediately prior to the effective time of the Merger shall be the certificate of incorporation of the surviving corporation, except that Article I thereof shall be amended to read in its entirety as follows:

ARTICLE I

The name of the corporation is Entorian Technologies Inc.

SIXTH: This Certificate of Ownership and Merger, and the Merger provided for herein, shall not become effective until, and shall become effective upon, its filing with the Delaware Secretary of State.

IN WITNESS WHEREOF, the Company has caused this Certificate of Ownership and Merger to be executed by its duly authorized officer this 26th day of February, 2008.

 

STAKTEK HOLDINGS, INC.

/s/ Wayne R. Lieberman

Wayne R. Lieberman

President and Chief Executive Officer

 

 

 

 

 

CERTIFICATE OF AMENDMENT TO CERTIFICATE OF INCORPORATION

OF

ENTORIAN TECHNOLOGIES INC.

Entorian Technologies Inc. (the “Company”), a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “General Corporation Law”), does hereby certify that:

FIRST: Article IV of the Company’s Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on August 9, 2005, as amended by the Company’s Certificate of Ownership and Merger filed the Secretary of State of the State of Delaware on February 26, 2008 (collectively, the “Certificate of Incorporation”), is amended and restated to read in its entirety as follows:

“The total number of shares of capital stock of all classes which the corporation shall have authority to issue is 105,000,000 shares of which (a) 5,000,000 shares shall be preferred stock, par value $.001 per share (“Preferred Stock”), and (b) 100,000,000 shares shall be common stock, par value $.001 per share (“Common Stock”). Of the five million (5,000,000) shares of Preferred Stock that the corporation shall have authority to issue, 171.01449 shall be designated Redeemable Preferred Stock and shall have the rights, preferences, privileges and limitation as set forth on Exhibit A attached hereto. Immediately upon the filing of this Certificate of Amendment with the Secretary of State of the State of Delaware, every 12 shares of Common Stock issued and outstanding immediately prior to such filing shall be combined, reclassified and changed into one share of Common Stock. The combination and conversion of the outstanding shares of Common Stock shall be referred to as the “Reverse Stock Split.”

The Reverse Stock Split shall occur automatically and without any further action on the part of the Company or the holders thereof and whether or not certificates representing the holders’ shares prior to the Reverse Stock Split are surrendered for cancellation. No fractional interest in a share of Common Stock shall be deliverable upon the Reverse Stock Split. All shares of Common Stock (including fractions thereof) held by a holder immediately prior to the Reverse Stock Split shall be aggregated for purposes of determining whether the Reverse Stock Split would result in the issuance of a fractional share. Any fractional share resulting from such aggregation of Common Stock upon the Reverse Stock Split shall be converted into the right to receive a cash payment in an amount equal to the fraction to which such holder would otherwise be entitled multiplied by the closing price of a share of Common Stock on the NASDAQ Global Market immediately prior to the effective time. The Company shall not be obliged to issue certificates evidencing the shares of Common Stock outstanding as a result of the Reverse Stock Split unless and until the certificates evidencing the shares held by a holder prior to the Reverse Stock Split are either delivered to the Company or its transfer agent, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with such certificates. Each stock certificate that, immediately prior to the effective time of the Reverse Stock Split, represented shares of old Common Stock shall, from and after the effective time of the Reverse Stock Split, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of new Common Stock into which the shares of old Common Stock represented by such certificate shall have been reclassified (as well as the right to receive cash in lieu of any fractional shares of new Common Stock as set forth above), provided, however, that each holder of record of a certificate that represented shares of old Common Stock shall receive, upon surrender of such certificate, a new certificate representing the number of whole shares of new Common Stock into which the shares of old Common Stock represented by such certificate shall have been reclassified, as well as any cash in lieu of fractional shares of new Common Stock to which such holder may be entitled as set forth above.

The number of authorized shares of any class of capital stock of the corporation may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the outstanding Common Stock of the corporation, without the approval of the holders of the Preferred Stock, or of any series thereof, unless the approval of any such holders is required pursuant to the certificate or certificates establishing any series of Preferred Stock. Notwithstanding the foregoing, subject to the rights of the holders of any series of Preferred Stock then outstanding, following the closing of a transaction or series of transactions as a result of which Austin Ventures VII, L.P., Austin Ventures VIII, L.P. and their respective affiliates cease to beneficially hold or control, in the aggregate, at least thirty percent (30%) of the outstanding voting equity securities of the corporation (a “Reduction in Voting Power”), the affirmative vote of the holders of at least two-thirds ( 2/3) of the shares of capital stock issued and outstanding and entitled to vote thereon, voting together as a single class, shall be required to increase or decrease (but not below the number of shares thereof then outstanding) the number of authorized shares of any class of capital stock of the corporation.

Except as otherwise restricted by this Certificate of Incorporation, the corporation is authorized to issue, from time to time, all or any portion of the capital stock of the corporation which may have been authorized but not issued, to such person or persons and for such lawful consideration as it may deem appropriate, and generally in its absolute discretion to determine the terms and manner of any disposition of such authorized but unissued capital stock. Any and all such shares issued for which the full consideration has been paid or delivered shall be deemed fully paid shares of capital stock, and the holder of such shares shall not be liable for any further call or assessment or any other payment thereon.

Preferred Stock may be issued from time to time by the Board of Directors as shares of one or more series. Subject to the provisions hereof and the limitations prescribed by law, the Board of Directors is hereby vested with the authority and is expressly authorized, prior to issuance, by adopting resolutions providing for the issuance of, or providing for a change in the number of, shares of any particular series and, if and to the extent from time to time required by law, by filing a certificate pursuant to the Delaware General Corporation Law (or other law hereafter in effect relating to the same or substantially similar subject matter), to establish or change the number of shares to be included in each such series and to fix the designation and relative powers, preferences and rights and the qualifications and limitations or restrictions thereof relating to the shares of each such series. The vested authority of the Board of Directors with respect to each series shall include, but not be limited to, the determination of the following:

1. the distinctive serial designation of such series and the number of shares constituting such series;

 

2. the annual dividend rate, if any, on shares of such series and the preferences, if any, over any other series (or of any other series over such series) with respect to dividends, and whether dividends shall be cumulative and, if so, from which date or dates;

3. whether the shares of such series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon and after which such shares shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;

4. the obligation, if any, of the corporation to purchase or redeem shares of such series pursuant to a sinking fund or purchase fund and, if so, the terms of such obligation;

5. whether shares of such series shall be convertible into, or exchangeable for, shares of stock of any other class or classes or any stock of any series of the same class or any other class or classes or any evidences of indebtedness and, if so, the terms and conditions of such conversion or exchange, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any;

6. whether the shares of such series shall have voting rights, in addition to the voting rights provided by law, and if so, the terms of such voting rights, including, without limitation, whether such shares shall have the right to vote with the Common Stock on issues on an equal, greater or lesser basis;

7. the rights of the shares of such series in the event of a voluntary or involuntary liquidation, dissolution, winding up or distribution of assets of the corporation;

8. whether the shares of such series shall be entitled to the benefit of conditions and restrictions upon (i) the creation of indebtedness of the corporation or any subsidiary, (ii) the issuance of any additional stock (including additional shares of such series or of any other series) or (iii) the payment of dividends or the making of other distributions on the purchase, redemption or other acquisition by the corporation or any subsidiary of any outstanding stock of the corporation; and

9. any other relative rights, powers, preferences, qualifications, limitations or restrictions thereof relating to any such series.

Except where otherwise set forth in the resolution or resolutions adopted by the Board of Directors providing for the issuance of any series of Preferred Stock, the number of shares comprising such series may be increased (but not above the total number of authorized shares of the class) or decreased (but not below the number of shares then outstanding) from time to time by like action of the Board of Directors.

Subject to the rights of any outstanding shares of any series of Preferred Stock, this Certificate of Incorporation may be amended from time to time in a manner that would solely modify or change the relative powers, preferences and rights and the qualifications and limitations or restrictions of any issued shares of any series of Preferred Stock then outstanding with the only required vote or consent for approval of such amendment being the affirmative vote or consent of the holders of a majority of the outstanding shares of the series of Preferred Stock so affected provided that the powers, preferences and rights and the qualification and limitations or restrictions of such series after giving effect to such amendment are no greater than the powers, preferences and rights and the qualifications and limitations or restrictions permitted to be fixed and determined by the Board of Directors with respect to the establishment of any new series of shares of Preferred Stock pursuant to the authority vested in the Board of Directors by this Article IV. Approval of any such amendment by the holders of the Common Stock shall not be required and any such amendment shall be deemed not to have affected the holders of the Common Stock adversely.

Subject to any rights of the holders of the Preferred Stock, and except as may be expressly provided with respect to the Preferred Stock herein, by law or by the Board of Directors pursuant to this Article IV:

1. dividends may be declared and paid or set apart for payment upon Common Stock out of any assets or funds of the corporation legally available for the payment of dividends and may be payable in cash, stock or otherwise when, if and as declared by the Board of Directors;

2. the holders of Common Stock shall have the exclusive right to vote for the election of directors and on all other matters requiring stockholder action, each share being entitled to one vote and shall not be entitled to cumulative voting; and

3. upon the voluntary or involuntary liquidation, dissolution or winding up of the corporation, after the payment or provision for payment of all debts and liabilities of the corporation and all preferential amounts to which the holders of Preferred Stock are entitled with respect to the distribution of assets or payment of monies, the net assets of the corporation shall be distributed pro rata to the holders of Common Stock in accordance with their respective rights and interests.”

SECOND: This Certificate of Amendment to Certificate of Incorporation has been duly approved by the Board of Directors in accordance with the provisions of Sections 141 and 242 of the General Corporation Law.

THIRD: This Certificate of Amendment to Certificate of Incorporation has been duly approved by the stockholders in accordance with the provisions of Sections 228 and 242 of the General Corporation Law.

FOURTH: This Certificate of Amendment to Certificate of Incorporation shall be effective as of the 30th day of October, 2009.

 

IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment of Certificate of Incorporation to be executed this 16th day of October, 2009.

 

/s/ Stephanie Lucie

Stephanie Lucie

Senior Vice President and General Counsel