RESTATED CERTIFICATE OF INCORPORATION

 

                                      OF

 

                    NUTRACEUTICAL INTERNATIONAL CORPORATION

 

 

 

                               ARTICLE I - Name

                               ----------------

 

     The name of the corporation is Nutraceutical International Corporation

(hereinafter referred to as the "Corporation").

 

 

                        ARTICLE II - Registered Office

                        ------------------------------

 

     The address of the registered office of the Corporation in the State of

Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle

19805. The name of the registered agent of the Corporation at that address is

The Prentice-Hall Corporation System, Inc.

 

 

                             ARTICLE III - 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 (the "Delaware General Corporation Law").

 

 

                          ARTICLE IV - Capital Stock

                          --------------------------

 

     Part A.  General.  The maximum number of shares of capital stock that the

Corporation is authorized to have outstanding at any one time is 55,000,000

shares, consisting of: (i) 5,000,000 shares of Preferred Stock, par value $0.01

per share (the "Preferred Stock"); and (ii) 50,000,000 shares of Common Stock,

par value $0.01 per share (the "Common Stock").

 

     Part B.  Preferred Stock.  Authority is hereby expressly vested in the

Board of Directors of the Corporation (each member thereof, a "Director," and

collectively, the "Board of Directors" or the "Board"), without further action

by the Corporation's stockholders, subject to the provisions of this ARTICLE IV

and to the limitations prescribed by law, to authorize the issuance from time to

time of one or more series of Preferred Stock. The authority of the Board of

Directors with respect to each series shall include, but not be limited to, the

determination or fixing of the following by resolution or resolutions adopted by

the affirmative vote of a majority of the total number of the Directors then in

office:

<PAGE>

 

     (1)  The designation of such series;

 

     (2)  The dividend rate of such series, the conditions and dates upon which

such dividends shall be payable, the relation which such dividends shall bear to

the dividends payable on any other class or classes or series of the

Corporation's capital stock and whether such dividends shall be cumulative or

non-cumulative;

 

     (3)  Whether the shares of such series shall be subject to redemption for

cash, property or rights, including securities of any other corporation, by the

Corporation or upon the happening of a specified event and, if made subject to

any such redemption, the times or events, prices, rates, adjustments and other

terms and conditions of such redemptions;

 

     (4)  The terms and amount of any sinking fund provided for the purchase or

redemption of the shares of such series;

 

     (5)  Whether or not the shares of such series shall be convertible into, or

exchangeable for, at the option of either the holder or the Corporation or upon

the happening of a specified event, shares of any other class or classes or of

any other series of the same class of the Corporation's capital stock and, if

provision be made for conversion or exchange, the times or events, prices,

rates, adjustments and other terms and conditions of such conversions or

exchanges;

 

     (6)  The restrictions, if any, on the issue or reissue of any additional

Preferred Stock;

 

     (7)  The rights of the holders of the shares of such series upon the

voluntary or involuntary liquidation, dissolution or winding up of the

Corporation; and

 

     (8)  The provisions as to voting, optional and/or other special rights and

preferences, if any, including, without limitation, the right to elect one or

more Directors.

 

     Part C.  Common Stock.  Except as otherwise provided by the Delaware

General Corporation Law or this Restated Certificate of Incorporation (the

"Restated Certificate"), and subject to the rights of holders of any series of

Preferred Stock, the holders of record of Common Stock shall share ratably in

all dividends payable in cash, stock or otherwise and other distributions,

whether in respect of liquidation or dissolution (voluntary or involuntary) or

otherwise and, are subject to all the powers, rights, privileges, preferences

and priorities of any series of Preferred Stock as provided herein or in any

resolution or resolutions adopted by the Board of Directors pursuant to

authority expressly vested in it by the provisions of Section B of this ARTICLE

IV.

 

     (1)  The Common Stock shall not be convertible into, or exchangeable for,

shares of any other class or classes or of any other series of the same of the

Corporation's capital stock.

 

     (2)  No holder of Common Stock shall have any preemptive, subscription,

redemption, conversion or sinking fund rights with respect to the Common Stock,

or to any obligations convertible (directly or indirectly) into stock of the

Corporation whether now or hereafter authorized.

 

     (3)  Except as otherwise provided by the Delaware General Corporation Law,

or the Restated Certificate and subject to the rights of holders of any series

of Preferred Stock, all of the voting power of the stockholders of the

Corporation shall be vested in the holders of the Common Stock, and each holder

of Common Stock shall have one vote for each share held by such holder on all

matters voted upon by the stockholders of the Corporation.

 

     Part D.  Reclassification and Stock Split.

 

     (1)  Reclassification.  Immediately upon the filing of this Restated

Certificate with the Secretary of State of the State of Delaware (the "Effective

Time"), (A) each share of Non-Voting Common Stock, par value $.01, of the

Corporation outstanding immediately prior to the Effective Time shall be,

without further action by the Corporation or any of the holders thereof,

reclassified into one share of Common Stock and (B) each share of Class A Non-

Voting Common Stock, par value $.01 per share, Class A Common Stock, par value

$.01 per share, and Class P Common Stock, par value $.01 per share, of the

Corporation (the "Accruing Common") outstanding immediately prior to the

Effective Time shall be, without further action by the Corporation or any of the

holders thereof, reclassified into one share of Common Stock plus an additional

number of shares of Common Stock equal to the sum of the Unreturned Original

Cost and Unpaid Yield (as such terms are defined in the Corporation's

Certificate of Incorporation as in effect immediately prior to the Effective

Time) on such outstanding share of Accruing Common as of the Effective Date

divided by the Public Offering Price. The fraction resulting from dividing the

sum of the Unreturned Original Cost and Unpaid Yield of each outstanding share

of Accruing Common by the Public Offering Price is referred to herein as the

"Conversion Factor". Each certificate representing outstanding shares of

Accruing Common shall automatically represent from and after the Effective Time

that number of shares of Common Stock equal to the number of shares shown on the

face of the certificate plus such additional number of shares equal to the

number of shares shown on the face of the certificate multiplied its respective

Conversion Factor. For purpose of this Part D of this ARTICLE IV, "Public

Offering Price" shall mean the initial public offering price per share of Common

Stock set forth on the cover page of the Corporation's Prospectus included in

the Registration Statement on Form S-1, as amended (Registration No. 333-41909)

(the "Registration Statement"), relating to the initial public offering of the

Corporation's Common Stock and in the form first used to confirm sales of the

Common Stock, without deduction for any underwriting discounts or commissions or

any expenses incurred by the Corporation in connection with the initial public

offering and as adjusted so as to not give effect to the stock split described

in the following paragraph.

 

     (2)  Stock Split.  At the Effective Time and immediately following the

reclassification of the Accruing Common set forth above (the

"Reclassification"), each share of Common Stock outstanding at the Effective

Time (after giving effect to the Reclassification) shall be, without further

action by the Corporation or any of the holders thereof, changed and converted

into a number of shares of Common Stock equal to that number determined by

multiplying each outstanding share of Common Stock by _________ (the "Stock

Split Factor"). Each certificate then outstanding representing shares of Common

Stock (including those certificates that represent shares of Common Stock as a

result of the Reclassification) shall automatically represent from and after the

Effective Time that number of shares of Common Stock equal to the number of

shares shown on the face of the certificate multiplied by the Stock Split

Factor.

 

     (3)  Fractional Shares.  Notwithstanding the foregoing, in the event that

the conversion of the Common Stock described in (1) and (2) above would result

in any holder of shares of Common Stock holding a share of Common Stock that is

not an integral multiple of one, the effect of the conversion shall be such that

the shares of Common Stock issued as a result of the Reclassification shall be

the integral multiple of one closest to the product of the Stock Split Factor

and the number of shares of Common Stock held by such holder, with fractions of

0.50 and greater being rounded up to the next higher integral multiple of one

and fractions less than 0.50 being rounded down to the next lower integral

multiple of one. No consideration will be paid in lieu of fractions that are

rounded down and no consideration shall be due from holders of Common Stock in

lieu of fractions that are rounded up.

 

 

                             ARTICLE V - Existence

                             ---------------------

 

     The Corporation is to have perpetual existence.

 

 

                             ARTICLE VI - By-laws

                             --------------------

 

     In furtherance and not in limitation of the powers conferred by the

Delaware General Corporation Law, the Board of Directors of the Corporation is

expressly authorized to make, alter, amend, change, add to or repeal the By-laws

of the Corporation by the affirmative vote of a majority of the total number of

Directors then in office. Any alteration or repeal of the By-laws of the

Corporation by the stockholders of the Corporation shall require the affirmative

vote of at least a majority of the voting power of the then outstanding shares

of capital stock of the Corporation entitled to vote on such alteration or

repeal, subject to ARTICLE IX hereof and ARTICLE VII of the Corporation's By-

laws.

 

 

                   ARTICLE VII - Stockholders and Directors

                   ----------------------------------------

 

     Part A.  Stockholder Action.  Election of Directors need not be by written

ballot unless the By-laws of the Corporation so provide. Subject to any rights

of holders of any series of Preferred Stock, from and after the date on which

the Common Stock of the Corporation is registered pursuant to the Securities

Exchange Act of 1934, as amended (the "Exchange Act"), (i) any action required

or permitted to be taken by the stockholders of the Corporation must be effected

at an annual or special meeting of stockholders of the Corporation and may not

be effected in lieu thereof by any consent in writing by such stockholders, (ii)

special meetings of stockholders of the Corporation may be called only by either

the Board of Directors pursuant to a resolution adopted by the affirmative vote

of the majority of the total number of Directors then in office or by the chief

executive officer of the Corporation and (iii) advance notice of stockholder

nominations of persons for election to the Board of Directors of the Corporation

and of business to be brought before any annual meeting of the stockholders by

the stockholders of the Corporation shall be given in the manner provided in the

By-laws of the Corporation.

 

     Part B. Number of Directors and Term of Office. Subject to any rights of

holders of any series of Preferred Stock to elect additional Directors under

specified circumstances, the number of Directors which shall constitute the

Board of Directors of the Corporation shall be fixed from time to time in the

manner set forth in the By-laws of the Corporation. The Directors of the

Corporation shall be divided into three classes: Class I, Class II and Class

III. Membership in such class shall be as nearly equal in number as possible.

The term of office of the initial Class I Directors shall expire at the annual

election of Directors by the stockholders of the Corporation in 1998, the term

of office of the initial Class II Directors shall expire at the annual election

of Directors by the stockholders of the Corporation in 1999 and the term of

office of the initial Class III Directors shall expire at the annual election of

Directors by the stockholders of the Corporation in 2000, or thereafter when

their respective successors in each case are elected by the stockholders and

qualified, subject however, to prior death, resignation, retirement,

disqualification or removal from office for cause. At each succeeding annual

election of Directors by the stockholders of the Corporation beginning in 1998,

the Directors chosen to succeed those whose terms then expire shall be

identified as being of the same class as the Directors they succeed and shall be

elected for a term expiring at the third succeeding annual election of Directors

by the stockholders of the Corporation, or thereafter when their respective

successors in each case are elected by the stockholders and qualified. If the

number of Directors is changed, any increase or decrease shall be apportioned

among the classes so as to maintain the number of Directors in each class as

nearly equal as possible, and any additional Director of any class elected to

fill a vacancy resulting from an increase in such class shall hold office for a

term that shall coincide with the remaining term of that class, but in no case

shall a decrease in the number of Directors shorten the term of any incumbent

Director.

 

     Part C. Removal and Resignation. No Director may be removed from office

without cause and without the affirmative vote of the holders of a majority of

the voting power of the then outstanding shares of capital stock of the

Corporation entitled to vote generally in the election of Directors voting

together as a single class; provided, however, that if the holders of any class

or series of capital stock are entitled by the provisions of this Restated

Certificate (it being understood that any references to this Restated

Certificate shall include any duly authorized certificate of designation) to

elect one or more Directors, such Director or Directors so elected may be

removed without cause only by the vote of the holders of a majority of the

outstanding shares of that class or series entitled to vote. Any Director may

resign at any time upon written notice to the Corporation.

 

     Part D. Vacancies and Newly Created Directorships. Subject to any rights of

holders of any series of Preferred Stock to fill such newly created

Directorships or vacancies, any newly created Directorships resulting from any

increase in the authorized number of Directors and any vacancies in the Board of

Directors resulting from death, resignation, disqualification or removal from

office for cause shall, unless otherwise provided by law or by resolution

approved by the affirmative vote of a majority of the total number of Directors

then in office, be filled only by resolution approved by the affirmative vote of

a majority of the total number of Directors then in office. Any Director so

chosen shall hold office until the next election of the class for which such

Director shall have been chosen, and until his successor shall have been duly

elected and qualified, unless he shall resign, die, become disqualified or be

removed for cause.

 

     Part E. Effectiveness. The provisions of this ARTICLE VII shall terminate

and be of no further force and effect in the event that the initial public

offering of the Corporation's Common Stock as contemplated by the Corporation's

Prospectus included in the Registration Statement is not consummated within 30

days of the Effective Time.

 

 

                       ARTICLE VIII - General Provisions

                       ---------------------------------

 

     Part A. Dividends. The Board of Directors shall have authority from time to

time to set apart out of any assets of the Corporation otherwise available for

dividends a reserve or reserves as working capital or for any other purpose or

purposes, and to abolish or add to any such reserve or reserves from time to

time as said board may deem to be in the interest of the Corporation; and said

Board shall likewise have power to determine in its discretion, except as herein

otherwise provided, what part of the assets of the Corporation available for

dividends in excess of such reserve or reserves shall be declared in dividends

and paid to the stockholders of the Corporation.

 

     Part B. Issuance of Stock. The shares of all classes of stock of the

Corporation may be issued by the Corporation from time to time for such

consideration as from time to time may be fixed by the Board of Directors of the

Corporation, provided that shares of stock having a par value shall not be

issued for a consideration less than such par value, as determined by the Board.

At any time, or from time to time, the Corporation may grant rights or options

to purchase from the Corporation any shares of its stock of any class or classes

to run for such period of time, for such consideration, upon such terms and

conditions, and in such form as the Board of Directors may determine. The Board

of Directors shall have authority, as provided by law, to determine that only a

part of the consideration which shall be received by the Corporation for the

shares of its stock which it shall issue from time to time, shall be capital;

provided, however, that, if all the shares issued shall be shares having a par

value, the amount of the part of such consideration so determined to be capital

shall be equal to the aggregate par value of such shares. The excess, if any, at

any time, of the total net assets of the Corporation over the amount so

determined to be capital, as aforesaid, shall be surplus. All classes of stock

of the Corporation shall be and remain at all times nonassessable.

 

     The Board of Directors is hereby expressly authorized, in its discretion,

in connection with the issuance of any obligations or stock of the Corporation

(but without intending hereby to limit its general power so to do in other

cases), to grant rights or options to purchase stock of the Corporation of any

class upon such terms and during such period as the Board of Directors shall

determine, and to cause such rights to be evidenced by such warrants or other

instruments as it may deem advisable.

 

     Part C. Inspection of Books and Records. The Board of Directors shall have

power from time to time to determine to what extent and at what times and places

and under what conditions and regulations the accounts and books of the

Corporation, or any of them, shall be open to the inspection of the

stockholders; and no stockholder shall have any right to inspect any account or

book or document of the Corporation, except as conferred by the laws of the

State of Delaware, unless and until authorized so to do by resolution of the

Board of Directors or of the stockholders of the Corporation.

 

     Part D. Location of Meetings, Books and Records. Except as otherwise

provided in the By-laws, the stockholders of the Corporation and the Board of

Directors may hold their meetings and have an office or offices outside of the

State of Delaware and, subject to the provisions of the laws of said State, may

keep the books of the Corporation outside of said State at such places as may,

from time to time, be designated by the Board of Directors.

 

 

                            ARTICLE IX - Amendments

                            -----------------------

 

     The Corporation reserves the right to amend, alter, change or repeal any

provision contained in this Restated Certificate in the manner now or

hereinafter prescribed herein and by the laws of the State of Delaware, and all

rights conferred upon stockholders herein are granted subject to this

reservation. Notwithstanding anything contained in this Restated Certificate to

the contrary, Parts A, B and C of ARTICLE IV, ARTICLE VII, ARTICLE X, and this

ARTICLE IX of this Restated Certificate shall not be altered, amended or

repealed and no provision inconsistent therewith shall be adopted without the

affirmative vote of the holders of at least 66 2/3% of the voting power of the

then outstanding shares of capital stock of the Corporation entitled to vote on

such alteration, amendment or repeal, voting together as a single class (other

than any alteration or amendment to Part A of ARTICLE IV that increases the

authorized number of shares of Preferred Stock or Common Stock).

 

 

                             ARTICLE X - Liability

                             ---------------------

 

     Part A.  Limitation of Liability.

 

     (1) To the fullest extent permitted by the Delaware General Corporation Law

as it now exists or may hereafter be amended (but, in the case of any such

amendment, only to the extent that such amendment permits the Corporation to

provide broader indemnification rights than permitted prior thereto), and except

as otherwise provided in the Corporation's By-laws, no Director of the

Corporation shall be liable to the Corporation or its stockholders for monetary

damages arising from a breach of fiduciary duty owed to the Corporation or its

stockholders.

 

     (2) Any repeal or modification of the foregoing paragraph by the

stockholders of the Corporation shall not adversely affect any right or

protection of a Director of the Corporation existing at the time of such repeal

or modification.

 

     Part B. Right to Indemnification. Each person who was or is made a party or

is threatened to be made a party to or is otherwise involved (including

involvement as a witness) in any action, suit or proceeding, whether civil,

criminal, administrative or investigative (a "proceeding"), by reason of the

fact that he or she is or was a Director or officer of the Corporation or, while

a Director or officer of the Corporation, is or was serving at the request of

the Corporation as a Director, officer, employee or agent of another corporation

or of a partnership, joint venture, trust or other enterprise, including service

with respect to an employee benefit plan (an "indemnitee"), whether the basis of

such proceeding is alleged action in an official capacity as a Director or

officer or in any other capacity while serving as a Director or officer, shall

be indemnified and held harmless

by the Corporation to the fullest extent authorized by the Delaware General

Corporation Law, as the same exists or may hereafter be amended (but, in the

case of any such amendment, only to the extent that such amendment permits the

Corporation to provide broader indemnification rights than permitted prior

thereto), against all expense, liability and loss (including attorneys' fees,

judgments, fines, excise exercise taxes or penalties and amounts paid in

settlement) reasonably incurred or suffered by such indemnitee in connection

therewith and such indemnification shall continue as to an indemnitee who has

ceased to be a Director, officer, employee or agent and shall inure to the

benefit of the indemnitee's heirs, executors and administrators; provided,

however, that, except as provided in Part C of this ARTICLE X with respect to

proceedings to enforce rights to indemnification, the Corporation shall

indemnify any such indemnitee in connection with a proceeding (or part thereof)

initiated by such indemnitee only if such proceeding (or part thereof) was

authorized by the Board of Directors of the Corporation. The right to

indemnification conferred in this Part B of this ARTICLE X shall be a contract

right and shall include the obligation of the Corporation to pay the expenses

incurred in defending any such proceeding in advance of its final disposition

(an "advance of expenses"); provided, however, that, if and to the extent that

the Delaware General Corporation Law requires, an advance of expenses incurred

by an indemnitee in his or her capacity as a Director or officer (and not in any

other capacity in which service was or is rendered by such indemnitee,

including, without limitation, service to an employee benefit plan) shall be

made only upon delivery to the Corporation of an undertaking (an "undertaking"),

by or on behalf of such indemnitee, to repay all amounts so advanced if it shall

ultimately be determined by final judicial decision from which there is no

further right to appeal (a "final adjudication") that such indemnitee is not

entitled to be indemnified for such expenses under this Part B or otherwise. The

Corporation may, by action of its Board of Directors, provide indemnification to

employees and agents of the Corporation with the same or lesser scope and effect

as the foregoing indemnification of Directors and officers.

 

     Part C. Procedure for Indemnification. Any indemnification of a Director or

officer of the Corporation or advance of expenses under Part B of this ARTICLE X

shall be made promptly, and in any event within forty-five days (or, in the case

of an advance of expenses, twenty days), upon the written request of the

Director or officer. If a determination by the Corporation that the Director or

officer is entitled to indemnification pursuant to this ARTICLE X is required,

and the Corporation fails to respond within sixty days to a written request for

indemnity, the Corporation shall be deemed to have approved the request. If the

Corporation denies a written request for indemnification or advance of expenses,

in whole or in part, or if payment in full pursuant to such request is not made

within forty-five days (or, in the case of an advance of expenses, twenty days),

the right to indemnification or advances as granted by this ARTICLE X shall be

enforceable by the Director or officer in any court of competent jurisdiction.

Such person's costs and expenses incurred in connection with successfully

establishing his or her right to indemnification, in whole or in part, in any

such action shall also be indemnified by the Corporation. It shall be a defense

to any such action (other than an action brought to enforce a claim for the

advance of expenses where the undertaking required pursuant to Part B of this

ARTICLE X, if any, has been tendered to the Corporation) that the claimant has

not met the standards of conduct which make it permissible under the Delaware

General Corporation Law for the Corporation to indemnify the claimant for the

amount claimed, but the burden of such defense shall be on the Corporation.

Neither the failure of the Corporation (including its Board of Directors,

independent legal counsel or its stockholders) to have made a determination

prior to the commencement of such action that indemnification of the claimant is

proper in the circumstances because he or she has met the applicable standard of

conduct set forth in the Delaware General Corporation Law, nor an actual

determination by the Corporation (including its Board of Directors, independent

legal counsel or its stockholders) that the claimant has not met such applicable

standard of conduct, shall be a defense to the action or create a presumption

that the claimant has not met the applicable standard of conduct. The procedure

for indemnification of other employees and agents for whom indemnification is

provided pursuant to Part B of this ARTICLE X shall be the same procedure set

forth in this Part C for Directors or officers, unless otherwise set forth in

the action of the Board of Directors providing indemnification for such employee

or agent.

 

     Part D. Insurance. The Corporation may purchase and maintain insurance on

its own behalf and on behalf of any person who is or was a Director, officer,

employee or agent of the Corporation 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 expense,

liability or loss asserted against him or her and incurred by him or her in any

such capacity, whether or not the Corporation would have the power to indemnify

such person against such expenses, liability or loss under the Delaware General

Corporation Law.

 

     Part E. Service for Subsidiaries. Any person serving as a Director,

officer, employee or agent of another corporation, partnership, limited

liability company, joint venture or other enterprise, at least 50% of whose

equity interests are owned by the Corporation (a "subsidiary" for this ARTICLE

X) shall be conclusively presumed to be serving in such capacity at the request

of the Corporation.

 

     Part F. Reliance. Persons who after the date of the adoption of this

provision become or remain Directors or officers of the Corporation or who,

while a Director or officer of the Corporation, become or remain a Director,

officer, employee or agent of a subsidiary, shall be conclusively presumed to

have relied on the rights to indemnity, advance of expenses and other rights

contained in this ARTICLE X in entering into or continuing such service. The

rights to indemnification and to the advance of expenses conferred in this

ARTICLE X shall apply to claims made against an indemnitee arising out of acts

or omissions which occurred or occur both prior and subsequent to the adoption

hereof.

 

     Part G. Non-Exclusivity of Rights. The rights to indemnification and to the

advance of expenses conferred in this ARTICLE X shall not be exclusive of any

other right which any person may have or hereafter acquire under this Restated

Certificate or under any statute, by-law, agreement, vote of stockholders or

disinterested Directors or otherwise.

 

     Part H. Merger or Consolidation. For purposes of this ARTICLE X, 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 and 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 this ARTICLE X with

respect to the resulting or surviving Corporation as he or she would have with

respect to such constituent Corporation if its separate existence had continued.

 

 

                      ARTICLE XI - Business Combinations

                      ----------------------------------

     The Corporation expressly elects to be governed by Section 203 of the

Delaware General Corporation Law. Notwithstanding the terms of Section 203 of

the Delaware General Corporation Law, none of Bain Capital, Inc. and its

affiliates (the "Bain Entities") and F.W. Gay and Sons and its partners (the

"Gay Entities") shall be deemed at any time and without regard to the percentage

of voting stock of the Corporation owned by the Bain Entities or the Gay

Entities to be an "interested stockholder" as such term is defined in Section

203(c)(5) of the Delaware General Corporation Law.