RESTATED CERTIFICATE OF INCORPORATION

                                       OF

                           ABM INDUSTRIES INCORPORATED

                             A Delaware Corporation

 

                  ABM Industries Incorporated, a corporation organized and

existing under the General Corporation Law of the State of Delaware, DOES HEREBY

CERTIFY:

 

                  FIRST: The name of the Corporation is ABM Industries

Incorporated and the name under which the Corporation was originally

incorporated was American Building Maintenance Industries, Inc. The

Corporation's original Certificate of Incorporation was filed with the Secretary

of State of Delaware on March 19, 1985.

 

                  SECOND: The Restated Certificate of Incorporation of ABM

Industries Incorporated in the form attached hereto as Exhibit A restates and

integrates but does not further amend the Certificate of Incorporation of ABM

Industries Incorporated, and there is no discrepancy between the provisions of

the Corporation's Certificate of Incorporation as heretofore amended or

supplemented and the provisions of the Restated Certificate of Incorporation

attached hereto, which has been duly adopted in accordance with the provisions

of Sections 141(f) and 245 of the General Corporation Law of the State of

Delaware by unanimous written consent of the board directors of the Corporation

on October 28, 2003.

 

                  THIRD: The Restated Certificate of Incorporation so adopted

reads in full as set forth in Exhibit A attached hereto and incorporated herein

by this reference.

 

                  IN WITNESS WHEREOF, we have hereunto set our hands as

President and Chief Executive Officer and Secretary, respectively, of ABM

Industries Incorporated and hereby affirm under penalties of perjury that the

foregoing is our act and deed and the facts herein stated are true, and

accordingly have hereunto set forth our hands this 25th day of November, 2003.

 

                                              /s/ Henrik C. Slipsager

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

                                                 Henrik C. Slipsager

                                        President and Chief Executive Officer

 

ATTEST:      /s/ Linda S. Auwers

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

             Linda S. Auwers, Secretary

 

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EXHIBIT 3.1

 

                                                                       Exhibit A

 

                      RESTATED CERTIFICATE OF INCORPORATION

                                       OF

                           ABM INDUSTRIES INCORPORATED

 

         FIRST: The name of this corporation is: ABM Industries Incorporated.

 

         SECOND: The address of the registered office of the corporation in the

State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City

of Wilmington, County of New Castle, and the name of its registered agent at

that address is The Corporation Trust Company.

 

         THIRD: (omitted)

 

         FOURTH: 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 Delaware.

 

         FIFTH: (a) The corporation is authorized to issue two classes of shares

to be designated, respectively, "Preferred Stock" and "Common Stock." The number

of shares of Preferred Stock authorized to be issued is Five Hundred Thousand

(500,000) and the number of shares of Common Stock authorized to be issued is

One Hundred Million (100,000,000). The stock, whether Preferred Stock or Common

Stock, shall have a par value of $0.01 per share.

 

         (b) The shares of Preferred Stock may be issued from time to time in

one or more series. The Board of Directors is authorized, by filing a

certificate pursuant to the applicable law of the State of Delaware, to

establish from time to time the number of shares to be included in each such

series, and to fix the designation, powers, preferences and rights of the shares

of each such series and the qualifications, limitations or restrictions thereof,

including but not limited to the fixing or alteration of the dividend rights,

dividend rate, conversion rights, voting rights, rights and terms of redemption

(including sinking fund provisions), the redemption price or prices, and the

liquidation preferences of any wholly unissued series of shares of Preferred

Stock; and to increase or decrease the number of shares of any series subsequent

to the issue of shares of that series, but not below the number of shares of

such series then outstanding. In case the number of shares of any series shall

be so decreased, the shares constituting such decrease shall resume the status

which they had prior to the adoption of the resolution originally fixing the

number of shares of such series.

 

         A Certificate of Designation heretofore adopted is attached as

Attachment 1.

 

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

statute, the Board of Directors is expressly authorized to make, repeal, alter,

amend and rescind from time to time any or all of the by-laws of the

corporation; including by-law amendments increasing or reducing the authorized

number of directors. In addition, new by-laws may be adopted or the by-laws may

be amended or repealed by a vote of not less than seventy percent (70%) of the

outstanding stock of the corporation entitled to vote thereon.

 

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EXHIBIT 3.1

 

         SEVENTH: (a) The number of directors which shall constitute the whole

Board of Directors of this corporation shall be as specified in the by-laws of

this corporation, subject to the provisions of Article SIXTH hereof and this

Article SEVENTH.

 

         (b) The Board of Directors shall be and is divided into three classes:

Class I, Class II and Class III, which shall be as nearly equal in number as

possible. Each director shall serve for a term ending on the date of the third

annual meeting of stockholders following the annual meeting at which the

director was elected; provided, however, that each initial director in Class I

shall hold office until the annual meeting of stockholders in 1986; each initial

director in Class II shall hold office until the annual meeting of stockholders

in 1987; and each initial director in Class III shall hold office until the

annual meeting of stockholders in 1988. Notwithstanding the foregoing provisions

of this Article, each director shall serve until his successor is duly elected

and qualified or until his death, resignation or removal.

 

         (c) In the event of any increase or decrease in the authorized number

of directors, (1) each director then serving as such shall nevertheless continue

as a director of the class of which he is a member until the expiration of his

current term, or his earlier resignation, removal from office or death, and (2)

the newly created or eliminated directorship resulting from such increase or

decrease shall be apportioned by the Board of Directors among the three classes

of directors so as to maintain such classes as nearly equal as possible.

 

         EIGHTH: No action shall be taken by the stockholders except at an

annual or special meeting of stockholders. No action shall be taken by

stockholders by written consent.

 

         NINTH: Special meetings of the stockholders of this corporation for any

purpose or purposes may be called at any time by the Board of Directors, or by a

committee of the Board of Directors which has been duly designated by the Board

of Directors and whose powers and authority, as provided in a resolution of the

Board of Directors or in the by-laws of this corporation, include the power to

call such meetings, but such special meetings may not be called by any other

person or persons.

 

         TENTH: 1. The affirmative vote of the holders of not less than seventy

percent (70% ) of the outstanding shares of "Voting Stock" (as hereinafter

defined) shall be required for the approval or authorization of any "Business

Combination" (as hereinafter defined) of this corporation or any subsidiary of

this corporation with any "Related Person" (as hereinafter defined),

notwithstanding the fact that no vote may be required or that a lesser

percentage may be specified by law, in any agreement with any national

securities exchange or otherwise; provided, however, that the seventy percent

(70% ) voting requirement shall not be applicable and such Business Combination

shall require only such affirmative vote as is required by law, any agreement

with any national securities exchange or otherwise if:

 

         (a) The "Continuing Directors" (as hereinafter defined) of this

corporation by at least a majority vote have expressly approved such Business

Combination either in advance of or subsequent to such Related Person becoming a

Related Person; or

 

         (b) All of the following conditions are met:

 

                                        2

 

<PAGE>

 

EXHIBIT 3.1

 

         (i) The cash or "Fair Market Value" (as hereinafter defined) as of the

date of the consummation of the Business Combination (the "Combination Date") of

the property, securities or other consideration to be received per share by

holders of a particular class or series of capital stock, as the case may be, of

this corporation in the Business Combination is not less than the highest of:

 

                           (A) the highest per share price (including brokerage

                  commissions, transfer taxes and soliciting dealers' fees) paid

                  by or on behalf of the Related Person in acquiring beneficial

                  ownership of any of its holdings of such class or series of

                  capital stock of this corporation (i) within the two-year

                  period immediately prior to the Combination Date or (ii) in

                  the transaction or series of transactions in which the Related

                  Person became a Related Person, whichever is higher; or

 

                           (B) the Fair Market Value per share of the shares of

                  capital stock being acquired in the Business Combination (i)

                  as the Combination Date or (ii) the date on which the Related

                  Person became a Related Person, whichever is higher; or

 

                           (C) in the case of Common Stock, the per share book

                  value of the Common Stock as reported at the end of the fiscal

                  quarter immediately prior to the Combination Date, and in the

                  case of Preferred Stock, the highest preferential amount per

                  share to which the holders of shares of such class or series

                  of Preferred Stock would be entitled in the event of any

                  voluntary or involuntary liquidation, dissolution or winding

                  up of the affairs of the Corporation, regardless of whether

                  the Business Combination to be consummated constitutes such an

                  event.

 

                  The provision of this paragraph 1(b)(i) shall be required to

         be met with respect to every class or series of outstanding capital

         stock, whether or not the Related Person has previously acquired any

         shares of a particular class or series of capital stock. In all of the

         above instances, appropriate adjustments shall be made for

         recapitalizations and for stock dividends, stock splits and like

         distributions; and

 

                  (ii) The consideration to be received by holders of a

         particular class or series of capital stock shall be in cash or in the

         same form as previously has been paid by or on behalf of the Related

         Person in connection with its direct or indirect acquisition of

         beneficial ownership of shares of such class or series of stock. If the

         consideration so paid for any such share varied as to form, the form of

         consideration for such shares shall be either cash or the form used to

         acquire beneficial ownership of the largest number of shares of such

         class or series of capital stock previously acquired by the Related

         Person; and

 

                  (iii) After such Related Person has become a Related Person

         and prior to the consummation of such Business Combination: (a) except

         as approved by a majority of the Continuing Directors, there shall have

         been no failure to declare and pay at the regular date therefor any

         full quarterly dividends (whether or not cumulative) on the outstanding

         Preferred Stock; (b) there shall have been (1) no reduction in the

         annual rate of dividends paid on the Common Stock (except as necessary

         to reflect any subdivision

 

                                        3

 

<PAGE>

 

EXHIBIT 3.1

 

         of the Common Stock), except as approved by a majority of the

         Continuing Directors, and (2) an increase in such annual rate of

         dividends as necessary to reflect any reclassification (including any

         reverse stock split), recapitalization, reorganization or any similar

         transaction which has the effect of reducing the number of outstanding

         shares of the Common Stock, unless the failure so to increase such

         annual rate is approved by a majority of the Continuing Directors; and

         (c) such Related Person shall have not become the beneficial owner of

         any additional shares of Voting Stock except as part of the transaction

         which results in such Related Person becoming a Related Person; and

 

                  (iv) After such Related Person has become a Related Person,

         such Related Person shall not have received the benefit, directly or

         indirectly (except as proportionately as a stockholder), of any loans,

         advances, guarantees, pledges or other financial assistance or any tax

         credits or other tax advantages provided by the corporation, whether in

         anticipation of or in connection with such Business Combination or

         otherwise; and

 

                  (v) A proxy or information statement describing the proposed

         Business Combination and complying with the requirements of the

         Securities Exchange Act of 1934 and the rules and regulations

         thereunder (or any subsequent provisions replacing such Act, rules or

         regulations) shall be mailed to public stockholders of the corporation

         at least 30 days prior to the consummation of such Business Combination

         (whether or not such proxy or information statement is required to be

         mailed pursuant to such Act or subsequent provisions).

 

         2. For purposes of this Article Tenth:

 

         (a) The term "Business Combination" shall mean any (i) merger or

consolidation of this corporation or a Subsidiary (as hereinafter defined) of

this corporation with a Related Person or any other corporation which is or

after such merger or consolidation would be an "Affiliate" or "Associate" (as

hereafter defined) of a Related Person, (ii) sale, lease, exchange, mortgage,

pledge, transfer or other disposition (in one transaction or a series of

transactions) with any Related Person or any Affiliate or Associate of any

Related Person, of all or any "Substantial Part" (as hereinafter defined) of the

assets of this corporation or of a Subsidiary of this corporation to a Related

Person or any Affiliate or Associate of any Related Person, (iii) adoption of

any plan or proposal for the liquidation or dissolution of this corporation

proposed by or on behalf of a Related Person or any Affiliate or Associate of

any Related Person, (iv) sale, lease, exchange or other disposition, including

without limitation a mortgage or other security device, of all or any

Substantial Part of the assets of a Related Person or any Affiliate or Associate

of any Related Person to this corporation or a Subsidiary of this corporation,

(v) issuance or pledge of securities of this corporation or a Subsidiary of this

corporation to or with a Related Person or any Affiliate or Associate of any

Related Person, (vi) reclassification of securities (including any reverse stock

split) or recapitalization of this corporation or any other transaction that

would have the effect, either directly or indirectly, of increasing the

proportionate share of any class of equity or convertible securities of this

corporation or any subsidiary of this corporation which is directly or

indirectly beneficially owned by any Related Person or any Affiliate or

Associate of any Related Person, and (vii) agreement, contract or other

arrangement providing for any of the transactions described in this definition

of Business Combination.

 

                                        4

 

<PAGE>

 

EXHIBIT 3.1

 

         (b) The term "person" shall mean any individual, firm, corporation or

other entity and shall include any group comprised of any person and any other

person with whom such person or any Affiliate or Associate of such person has

any agreement, arrangement or understanding, directly or indirectly, for the

purpose of acquiring, holding, voting or disposing of Voting Stock of this

corporation.

 

         (c) The term "Related Person" shall mean any person (other than this

corporation, or any Subsidiary and other than any profit-sharing, employee stock

ownership or other employee benefit plan of this corporation or any Subsidiary

or any trustee of or fiduciary with respect to any such plan when acting in such

capacity) who or which:

 

                  (i) is the beneficial owner (as hereinafter defined) of ten

         percent (10 %) or more of the Voting Stock;

 

                  (ii) is an Affiliate or Associate of this corporation and at

         any time within the two-year period immediately prior to the date in

         question was the beneficial owner of ten percent (10%) or more of the

         Voting Stock; or

 

                  (iii) is an assignee of or has otherwise succeeded to the

         beneficial ownership of any shares of Voting Stock which were at any

         time within the two-year period immediately prior to such time

         beneficially owned by any Related Person, if such assignment or

         succession shall have occurred in the course of a transaction or series

         of transactions not involving a public offering within the meaning of

         the Securities Act of 1933.

 

         (d) A person shall be a "beneficial owner" of any Voting Stock:

 

                  (i) which such person or any of its Affiliates or Associates

         beneficially owns, directly or indirectly;

 

                  (ii) which such person or any of its Affiliates or Associates

         has, directly or indirectly, (a) the right to acquire (whether such

         right is exercisable immediately or only after the passage of time),

         pursuant to any agreement arrangement or understanding or upon the

         exercise of conversion rights, exchange rights, warrants or options, or

         otherwise, or (b) the right to vote pursuant to any agreement,

         arrangement or understanding; or

 

                  (iii) which are beneficially owned, directly or indirectly, by

         any other person with which such person or any of its Affiliates or

         Associates has any agreement, arrangement or understanding for the

         purpose of acquiring, holding, voting or disposing of any shares of

         Voting Stock.

 

         (e) For the purposes of determining whether a person is a Related

Person pursuant to sub-paragraph (c) of this paragraph 2, the number of shares

of Voting Stock deemed to be outstanding shall include shares deemed owned

through application of sub-paragraph (d) of this paragraph 2 but shall not

include any other shares of Voting Stock which may be issuable pursuant to any

agreement, arrangement or understanding, or upon exercise of conversion rights,

warrants or option, or otherwise.

 

                                        5

 

<PAGE>

 

EXHIBIT 3.1

 

         (f) The terms "Affiliate" or "Associate" shall have the respective

meanings ascribed to such terms in Rule 12b-2 of the General Rules and

Regulations under the Securities Exchange Act of 1934, as in effect on January

1, 1985.

 

         (g) The term "Subsidiary" means any corporation of which a majority of

any class of equity securities is owned, directly or indirectly, by this

corporation; provided, however, that for the purposes of the definition of

Related Person set forth in sub-paragraph (c) of this paragraph 2, the term

"Subsidiary" shall mean only a corporation of which a majority of each class of

equity securities is owned, directly or indirectly, by this corporation.

 

         (h) The term "Continuing Director" means any member of the Board of

Directors, while such person is a member of the Board of Directors, who is not

an Affiliate, Associate or a representative of the Related Person involved in a

proposed Business Combination and was a member of the Board of Directors prior

to the time that the Related Person became a Related Person, and any successor

of a Continuing Director, while such successor is a member of the Board of

Directors, who is not an Affiliate, Associate or a representative of the Related

Person and is recommended or elected to succeed a Continuing Director by a

majority of Continuing Directors. Each initial director of this corporation

elected by the incorporator of this corporation shall be a Continuing Director

for purposes of this Article Tenth.

 

         (i) The term "Substantial Part" shall mean more than twenty percent

(20%) of the Fair Market Value, as determined by a majority of the Continuing

Directors, of the total consolidated assets of this corporation and its

Subsidiaries taken as a whole as of the end of its most recent fiscal year ended

prior to the time the determination is being made.

 

         (j) For the purposes of paragraph 1(b) (i) of this Article Tenth, the

term "other consideration to be received" shall include, without limitation,

capital stock retained by the shareholders.

 

         (k) The term "Voting Stock" shall mean all of the outstanding shares of

Common Stock and the outstanding shares of Preferred Stock entitled to vote on

each matter on which the holders of record of Common Stock shall be entitled to

vote, and each reference to a proportion of shares of Voting Stock shall refer

to such proportion of the votes entitled to be cast by such shares voting as one

class.

 

         (l) The term "Fair Market Value" means: (i) in case of capital stock,

the highest closing sale price during the 30-day period immediately preceding

the date in question of a share of such stock on the Composite Tape for the New

York Stock Exchange Listed Stocks, or, if such stock is not quoted on the

Composite Tape, on the New York Stock Exchange, or if such stock is not listed

on such Exchange, on the principal United States securities exchange registered

under the Securities Exchange Act of 1934 on which such stock is listed, or, if

such stock is not listed on any such stock exchange, the highest closing bid

quotation with respect to a share of such stock during the 30-day period

preceding the date in question on the National Association of Securities

Dealers, Inc. Automated Quotations System or any successor system then in use,

or if no such quotations are available, the fair market value on the date in

question of a share of such stock as determined in good faith by a majority of

the Continuing Directors; and (ii) in the case of

 

                                        6

 

<PAGE>

 

EXHIBIT 3.1

 

property other than cash or stock, the fair market value of such property on the

date in question as determined in good faith by a majority of the Continuing

Directors.

 

         (m) A Related Person shall be deemed to have acquired a share of the

Voting Stock of this corporation at the time when such Related Person became the

beneficial owner thereof. If a majority of the Continuing Directors is not able

to determine the price at which a Related Person has acquired a share of Voting

Stock of this corporation, such price shall be deemed to be the Fair Market

Value of the shares in question at the time when the Related Person becomes the

beneficial owner thereof. With respect to shares owned by Affiliates, Associates

or other persons whose ownership is attributed to a Related Person under the

foregoing definition of Related Person, the price deemed to be paid therefor by

such Related Person shall be the price paid upon the acquisition thereof by such

Affiliate, Associate or other person, or, if such price is not determinable by a

majority of the Continuing Directors, the Fair Market Value of the shares in

question at the time when the Affiliate, Associate, or other such person became

the beneficial owner thereof.

 

         3. The fact that any Business Combination complies with the provisions

of paragraph 1(b) of this Article Tenth shall not be construed to impose any

fiduciary duty, obligation or responsibility on the Board of Directors, or any

member thereof, to approve such Business Combination or recommend its adoption

or approval to the shareholders of this corporation, nor shall such compliance

limit, prohibit or otherwise restrict in any manner the Board of Directors, or

any member thereof, with respect to evaluations of or actions and responses

taken with respect to such Business Combination.

 

         4. A majority of the Continuing Directors of the corporation shall have

the power and duty to determine for the purposes of this Article Tenth, on the

basis of information known to them after reasonable inquiry, (A) whether a

person is a Related Party, (B) the number of shares of Voting Stock beneficially

owned by any person, and (C) whether a person is an Affiliate or Associate of

another. A majority of the Continuing Directors of the corporation shall have

the further power to interpret all of the terms and provisions of this Article

Tenth.

 

         ELEVENTH: Advance notice of stockholder nominations for the election of

directors shall be given in the manner provided in the by-laws of this

corporation.

 

         TWELFTH: (a) Newly created directorships resulting from any increase in

the number of directors and any vacancies on the Board of Directors resulting

from death, resignation, disqualification, removal or other cause shall be

filled by the affirmative vote of a majority of the remaining directors then in

office (and not by Stockholders), even though less than a quorum of the Board of

Directors. Any Director elected in accordance with the preceding sentence shall

hold office until the next election of directors by the stockholders and until

such director's successor shall have been elected and qualified. No decrease in

the number of Directors constituting the Board of Directors shall shorten the

term of any incumbent director.

 

         (b) Any director may be removed from office by the affirmative vote of

the holders of 70% of the outstanding stock of the corporation entitled to vote

generally in the election of directors, provided that such removal is for cause.

 

                                        7

 

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EXHIBIT 3.1

 

         THIRTEENTH: The corporation reserves the right to amend, alter, change

or repeal any provision contained in this Certificate of Incorporation, in the

manner now or hereafter prescribed by statute, and all rights conferred on

stockholders herein are granted subject to this reservation. Notwithstanding the

foregoing, the provisions set forth in Articles SIXTH, SEVENTH, EIGHTH, NINTH,

TENTH, ELEVENTH, TWELFTH and this Article THIRTEENTH may not be repealed or

amended in any respect unless such repeal or amendment is approved by the

affirmative vote of not less than seventy percent (70 %) of the total voting

power of all outstanding shares of stock in this corporation entitled to vote

thereon.

 

         FOURTEENTH: No director of the corporation shall be personally liable

to the corporation or any stockholder for monetary damages for breach of

fiduciary duty as a director, except for any matter in respect of which such

director shall be liable under Section 174 of the General Corporation Law of the

State of Delaware or any amendment thereto or shall be liable by reason that, in

addition to any and all other requirements for such liability, such director (i)

shall have breached the duty of loyalty to the corporation or its stockholders,

(ii) shall not have acted in good faith, or, in failing to act, shall not have

acted in good faith, (iii) shall have acted in a manner involving intentional

misconduct or a knowing violation of law or, in failing to act, shall have acted

in a manner involving intentional misconduct or a knowing violation of law or

(iv) shall have derived an improper personal benefit. Neither the amendment nor

repeal of this Article Fourteenth, nor the adoption of any provision of this

certificate of incorporation inconsistent with this Article Fourteenth, shall

eliminate or reduce the effect of this Article Fourteenth in respect of any

matter occurring, or any cause of action, suit or claim that, but for this

Article Fourteenth would accrue or arise, prior to such amendment repeal or

adoption of an inconsistent provision.

 

                                        8

 

<PAGE>

 

EXHIBIT 3.1

 

                      CERTIFICATE OF DESIGNATION AND TERMS

                        OF PARTICIPATING PREFERRED STOCK

                                       OF

                           ABM INDUSTRIES INCORPORATED

 

                     Pursuant to Section 151 of the General

                    Corporation Law of the State of Delaware

 

                  We, the undersigned, William W. Steele and Harry H. Kahn, the

President and Secretary, respectively, of ABM Industries Incorporated, a

Delaware corporation (the "Corporation"), do hereby certify as follows:

 

                  Pursuant to authority granted by Article Fifth of the

Certificate of Incorporation, as amended, of the Corporation and in accordance

with the provisions of Section 151 of the General Corporation Law of the State

of Delaware, the Board of Directors of the Corporation has adopted the following

resolutions fixing the designation and certain terms, powers, preferences and

other rights of a new series of the Corporation's Preferred Stock, par value

$.01 per share, and certain qualifications, limitations and restrictions

thereon:

 

                           RESOLVED, that there is hereby established a series

         of Preferred Stock, par value $.01 per share, of the Corporation, and

         the designation and certain terms, powers, preferences and other rights

         of the shares of such series, and certain qualifications, limitations

         and restrictions thereon, are hereby fixed as follows:

 

                           (i) The distinctive serial designation of this series

                  shall be "Participating Preferred Stock" (hereinafter called

                  "this Series"). Each share of this Series shall be identical

                  in all respects with the other shares of this Series except as

                  to the dates from and after which dividends thereon shall be

                  cumulative.

 

                           (ii) The number of shares in this Series shall

                  initially be 50,000, which number may from time to time be

                  increased or decreased (but not below the number then

                  outstanding) by the Board of Directors. Shares of this Series

                  purchased by the Corporation shall be cancelled and shall

                  revert to authorized but unissued shares of Preferred Stock

                  undesignated as to series. Shares of this Series may be issued

                  in fractional shares, which fractional shares shall entitle

                  the holder, in proportion to such holder's fractional share,

                  to all rights of a holder of a whole share of this Series.

 

                           (iii) The holders of full or fractional shares of

                  this Series shall be entitled to receive, when and as declared

                  by the Board of Directors, but only out of funds legally

                  available therefor, dividends, (A) on each date that dividends

                  or other distributions (other than dividends or distributions

                  payable in Common Stock of the Corporation) are payable on or

                  in respect of Common Stock comprising part of the Reference

                  Package (as defined below), in an amount per whole share of

                  this Series equal to the aggregate amount of dividends or

                  other

 

                                        9

 

<PAGE>

 

EXHIBIT 3.1

 

                  distributions (other than dividends or distributions payable

                  in Common Stock of the Corporation) that would be payable on

                  such date to a holder of the Reference Package (as hereinafter

                  defined) and (B) on the last day of March, June, September and

                  December in each year, in an amount per whole share of this

                  Series equal to the excess (if any) of $2.50 over the

                  aggregate dividends paid per whole share of this Series during

                  the three month period ending on such last day. Each such

                  dividend shall be paid to the holders of record of shares of

                  this Series on the date, not exceeding sixty days preceding

                  such dividend or distribution payment date, fixed for the

                  purpose by the Board of Directors in advance of payment of

                  each particular dividend or distribution. Dividends on each

                  full and each fractional share of this Series shall be

                  cumulative from the date such full or fractional share is

                  originally issued; provided that any such full or fractional

                  share originally issued after a dividend record date and on or

                  prior to the dividend payment date to which such record date

                  relates shall not be entitled to receive the dividend payable

                  on such dividend payment date or any amount in respect of the

                  period from such original issuance to such dividend payment

                  date.

 

                           The term "Reference Package" shall initially mean

                  1,000 shares of Common Stock, $.01 par value per share

                  ("Common Stock"), of the Corporation. In the event the

                  Corporation shall at any time after the close of business on

                  April 22, 1998 (A) declare of pay a dividend on any Common

                  Stock payable in Common Stock, (B) subdivide any Common Stock

                  or (C) combine any Common Stock into a smaller number of

                  shares, then and in each such case the Reference Package after

                  such event shall be the Common Stock that a holder of the

                  Reference Package immediately prior to such event would hold

                  thereafter as a result thereof.

 

                           Holders of shares of this Series shall not be

                  entitled to any dividends, whether payable in cash, property

                  or stock, in excess of full cumulative dividends, as herein

                  provided on this Series.

 

                           So long as any shares of this series are outstanding,

                  no dividends (other than a dividend in Common Stock or in any

                  other stock ranking junior to this Series as to dividends and

                  upon liquidation) shall be declared or paid or set aside for

                  payment or other distribution declared or made upon the Common

                  Stock or upon any other stock ranking junior to this Series as

                  to dividends or upon liquidation, nor shall any Common Stock

                  nor any other stock of the Corporation ranking junior to or on

                  a parity with this Series as to dividends or upon liquidation

                  be redeemed, purchased or otherwise acquired for any

                  consideration (or any moneys be paid to or made available for

                  a sinking fund for the redemption of any shares of any such

                  stock) by the Corporation (except by conversion into or

                  exchange for stock of the Corporation ranking junior to this

                  Series as to dividends and upon liquidation), unless, in each

                  case, the full cumulative dividends (including the dividend to

                  be due upon payment of such dividend, distribution,

                  redemption, purchase or other acquisition) on all outstanding

                  shares of this Series shall have been, or shall

                  contemporaneously be, paid.

 

                                       10

 

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EXHIBIT 3.1

 

                           (iv) In the event of any merger, consolidation,

                  reclassification or other transaction in which the shares of

                  Common Stock are exchanged for or changed into other stock or

                  securities, cash and/or any other property, then in any such

                  case the shares of this Series shall at the same time be

                  similarly exchanged or changed in an amount per whole share

                  equal to the aggregate amount of stock, securities, cash

                  and/or any other property (payable in kind), as the case may

                  be, that a holder of the Reference Package would be entitled

                  to receive as a result of such transaction.

 

                           (v) In the event of any liquidation, dissolution or

                  winding up of the affairs of the Corporation, whether

                  voluntary or involuntary, the holders of full and fractional

                  shares of this Series shall be entitled, before any

                  distribution or payment is made on any date to the holders of

                  the Common Stock or any other stock of the Corporation ranking

                  junior to this Series upon liquidation, to be paid in full an

                  amount per whole share of this Series equal to the greater of

                  (A) $100 or (B) the aggregate amount distributed or to be

                  distributed prior to such date in connection with such

                  liquidation, dissolution or winding up to a holder of the

                  Reference Package (such greater amount being hereinafter

                  referred to as the "Liquidation Preference"), together with

                  accrued dividends to such distribution or payment date,

                  whether or not earned or declared. If such payment shall have

                  been made in full to all holders of shares of this Series, the

                  holders of shares of this Series as such shall have no right

                  or claim to any of the remaining assets of the Corporation.

 

                           In the event the assets of the Corporation available

                  for distribution to the holders of shares of this Series upon

                  any liquidation, dissolution or winding up of the Corporation,

                  whether voluntary or involuntary, shall be insufficient to pay

                  in full all amounts to which such holders are entitled

                  pursuant to the first paragraph of this Section (v), no such

                  distribution shall be made on account of any shares of any

                  other class or series of Preferred Stock ranking on a parity

                  with the shares of this Series upon such liquidation,

                  dissolution or winding up unless proportionate distributive

                  amounts shall be paid on account of the shares of this Series,

                  ratably in proportion to the full distributable amounts for

                  which holders of all such parity shares are respectively

                  entitled upon such liquidation, dissolution or winding up.

 

                           Upon the liquidation, dissolution or winding up of

                  the Corporation, the holders of shares of this Series then

                  outstanding shall be entitled to be paid out of assets of the

                  Corporation available for distribution to its Stockholders all

                  amounts to which such holders are entitled pursuant to the

                  first paragraph of this Section (v) before any payment shall

                  be made to the holders of Common Stock or any other stock of

                  the Corporation ranking junior upon liquidation to this

                  Series.

 

                           For the purposes of this Section (v), the

                  consolidation or merger of, or binding share exchange by, the

                  Corporation with any other corporation shall not

 

                                       11

 

<PAGE>

 

EXHIBIT 3.1

 

                  be deemed to constitute a liquidation, dissolution or winding

                  up of the Corporation.

 

                           (vi) The shares of this Series shall not be

                  redeemable.

 

                           (vii) In addition to any other vote or consent of

                  Stockholders required by law or by the Restated Certificate of

                  Incorporation, as amended, of the Corporation, each whole

                  share of this Series shall, on any matter, vote as a class

                  with any other capital stock comprising part of the Reference

                  Package and voting on such matter and shall have the number of

                  votes thereon that a holder of the Reference Package would

                  have.

 

                  IN WITNESS WHEREOF, the undersigned have signed and attested

this certificate on the 17th day of March, 1998.

 

                                                  /s/ William W. Steele

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

                                                        President

                                                    William W. Steele

 

Attest:

 

        /s/ Harry H. Kahn

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

            Secretary

          Harry H. Kahn

 

[As Filed: 01-14-2004]