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                                                                       EXHIBIT 3

 

                      RESTATED CERTIFICATE OF INCORPORATION

                                       OF

                          ALLIANCE PHARMACEUTICAL CORP.

 

                Under Section 807 Of The Business Corporation Law

 

 

         We, the undersigned, Theodore D. Roth and Lloyd A. Rowland, being

respectively the President and the Secretary of Alliance Pharmaceutical

Corp., hereby certify:

 

         1. The name of the corporation is Alliance Pharmaceutical Corp.

(hereinafter called the "Corporation"). The name under which the Corporation

was formed is Otisville Biologics, Inc.

 

         2. The Certificate of Incorporation was filed in the office of the

Secretary of State on the 23rd day of February, 1983 (the "Certificate of

Incorporation").

 

         3. The Certificate of Incorporation of the Corporation was first

restated and the Restated Certificate was filed on November 10, 1993 (the

"First Restated Certificate of Incorporation").

 

         4. The Certificate of Incorporation of the Corporation, as amended

heretofore, is further amended to increase the amount of the authorized

shares of common stock, $0.01 par value, of the Corporation from 75,000,000

shares to 125,000,000 shares, to change 1,500,000 shares of Series A

Preferred Stock, 750,000 shares of Series B Preferred Stock, 200,000 shares

of Series C Preferred Stock, 500,000 shares of Series D Preferred Stock and

100,000 shares of Series E-1 Preferred Stock, to 3,050,000 shares of unissued

shares of preferred stock now to be redesignated as Preferred Stock to be

issued (i) in such series, with such voting powers, full or limited, or no

voting powers, and such designations, preferences and relative,

participating, optional or other special rights, and with such

qualifications, limitations or restrictions thereon, as the Board of

Directors shall fix by resolution, and (ii) in such number of shares in each

series as the Board of Directors, by resolution or resolutions, shall fix;

provided that the aggregate number of all shares of Preferred Stock issued

does not exceed the number of shares of Preferred Stock authorized hereby.

The total number of shares of Preferred Stock remain unchanged.

 

         5. None of the authorized shares of the Series A Preferred Stock,

the Series B Preferred Stock, the Series C Preferred Stock, the Series D

Preferred Stock or the Series E-1 Preferred Stock are outstanding, and no

shares of any such series will be issued subject to the Certificate of

Incorporation. None of such shares are currently issued.

 

         6. The Certificate of Incorporation, as amended, is restated to read

as hereinafter set forth in full:

 

<PAGE>

 

                  1. The name of the Corporation is Alliance Pharmaceutical

         Corp.

 

                  2. The purpose of which it is formed is to engage in any

         lawful act or activity for which corporations may be organized under

         the Business Corporation Law, provided that the Corporation is not

         formed to engage in any act or activity which requires the consent or

         approval of any state official, department, board, agency or other

         body.

 

                  3. The office of the Corporation in the State of New York is

         to be located in Orange County.

 

                  4. The total number of shares of stock which the Corporation

         is authorized to issue is 130,000,000 of which 125,000,000 shares shall

         be designated Common Stock, $.01 par value per share, and 5,000,000

         shares shall be designated Preferred Stock, $.01 par value per share.

         The relative rights, preferences and limitations of the shares of each

         class are as follows:

 

                           (a) The Preferred Stock authorized hereby may be

                  issued (i) in such series and with such voting powers, full or

                  limited, or no voting powers, and such designations,

                  preferences and relative, participating, optional or other

                  special rights, and with such qualifications, limitations or

                  restrictions thereon, as the Board of Directors shall fix by

                  resolution, and (ii) in such number of shares in each series

                  as the Board of Directors, by resolution or resolutions, shall

                  fix; provided that the aggregate number of all shares of

                  Preferred Stock issued does not exceed the number of shares of

                  Preferred Stock authorized hereby.

 

                           (b) Holders of Common Stock shall be entitled to such

                  dividend, liquidation and voting rights and such other rights

                  and privileges as are provided by the New York Business

                  Corporation Law, subject to the rights of holders of Preferred

                  Stock issued pursuant to the provisions of paragraph (a)

                  above.

 

                           (c) Eight hundred and seventy-five thousand (875,000)

                  shares of the Corporation's preferred stock, par value $0.01

                  per share, are designated "Series F Preferred Stock"

                  (hereinafter referred to as the "Series F Preferred Stock"),

                  and such Series F Preferred Stock shall have the respective

                  voting powers, designations, preferences and relative,

                  participating, optional or other rights, and the

                  qualifications, limitations or restrictions as follows:

 

         1. SECTION REFERENCES AND DEFINITIONS. References to section numbers

contained in this Article 4(c) shall refer only to sections within this Article

4(c) unless otherwise specified. Capitalized terms in this Article 4(c) shall

have the following meanings:

 

 

                                       2

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         1.1 "Change of Control" shall mean the following and shall be deemed to

occur if any of the following events occur:

 

                  (i) Any "person," as such term is used in Sections 13(d) and

         14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange

         Act") (a "Person"), is or becomes the "beneficial owner," as defined in

         Rule 13d-3 under the Exchange Act (a "Beneficial Owner"), directly or

         indirectly, of securities of the Corporation representing (i) 20% or

         more of the combined voting power of the Corporation's then outstanding

         voting securities, which acquisition is not approved in advance of the

         acquisition or within thirty (30) days after the acquisition by a

         majority of the Incumbent Board (as hereinafter defined) or (ii) 33% or

         more of the combined voting power of the Corporation's then outstanding

         voting securities, without regard to whether such acquisition is

         approved by the Incumbent Board;

 

                  (ii) Persons who constitute the board of directors (the

         "Incumbent Board") of the Corporation cease for any reason to

         constitute at least a majority of the Corporation's board of directors,

         provided that any person becoming a director whose election, or

         nomination for election by the Corporation's stockholders, is approved

         by a vote of at least a majority of the directors then constituting the

         Incumbent Board (other than an election or nomination of an individual

         whose initial assumption of office is in connection with an actual or

         threatened election contest relating to the election of the directors

         of the Corporation, as such terms are used in Rule 14a-11 of Regulation

         14A promulgated under the Exchange Act) shall, for the purposes of this

         Agreement, be considered as though such person were a member of the

         Incumbent Board of the Corporation;

 

                  (iii) The consummation of a merger, consolidation or

         reorganization involving the Corporation, other than one which

         satisfies both of the following conditions:

 

                           (A) a merger, consolidation or reorganization which

                  would result in the voting securities of the Corporation

                  outstanding immediately prior thereto continuing to represent

                  (either by remaining outstanding or by being converted into

                  voting securities of another entity) at least 55% of the

                  combined voting power of the voting securities of the

                  Corporation or such other entity resulting from the merger,

                  consolidation or reorganization (the "Surviving Corporation")

                  outstanding immediately after such merger, consolidation or

                  reorganization and being held in substantially the same

                  proportion as the ownership in the Corporation's voting

                  securities immediately before such merger, consolidation or

                  reorganization, and

 

                           (B) a merger, consolidation or reorganization in

                  which no Person is or becomes the Beneficial Owner, directly

                  or indirectly, of securities of the Corporation representing

                  20% or more of the combined voting power of the Corporation's

                  then outstanding voting securities; or

 

                  (iv) The stockholders of the Corporation approve a plan of

         complete liquidation of the Corporation or an agreement for the sale or

         other disposition by the Corporation of all or substantially all of the

         Corporation's assets.

 

 

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         Notwithstanding the preceding provisions of this definition, a

Change in Control shall not be deemed to have occurred if the Person

described in the preceding provisions is (1) an underwriter or underwriting

syndicate that has acquired the ownership of any of the Corporation's then

outstanding voting securities solely in connection with a public offering of

the Corporation's securities, (2) the Corporation or an affiliate of the

Corporation, or (3) an employee stock ownership plan or other employee

benefit plan maintained by the Corporation or any of its affiliates that is

qualified under the provisions of the United States Internal Revenue Code of

1986.

 

         1.2 "Common Stock" shall mean the shares of the Common Stock of the

Corporation, par value $.01 per share, and any stock into which such Common

Stock may hereafter be changed.

 

         1.3 "F Conversion Rate" shall mean the rate at which shares of

Common Stock are to be received upon conversion of one share of the Series F

Preferred Stock which is determined by dividing the F Current Market Price

per share of Common Stock into $40.00; provided that (i) in the event of a

conversion pursuant to Section 5.1.1(b)(i), the F Current Market Price per

share shall never be deemed to be less than the F Division Amount and (ii) in

the event of a conversion pursuant to Section 5.1.1(c) the F Current Market

Price shall be deemed to be $22.00. The F Conversion Rate, and the amounts

specified in the previous sentence shall be subject to adjustment pursuant to

Section 5.

 

         1.4 "Convertible Securities" shall mean evidences of indebtedness,

shares of stock or other securities which are convertible into or

exchangeable, with or without payment of additional consideration in cash or

property, for Common Stock, either immediately or upon the arrival of a

specified date or the happening of a specified event.

 

         1.5 "F Current Market Price" per share of Common Stock at any date

herein specified shall mean the average of the daily market prices for the

twenty (20) consecutive Trading Days ending one (1) day prior to such date;

provided that in the event conversion is pursuant to Section 5.1.1(b), the

foregoing twenty (20) day period shall end ten (10) Trading Days after (i)

the date the Corporation sends a press release to the public announcing the

termination of the License Agreement, or (ii) if no press release is made

prior to the termination, the date of such termination; provided, however,

that if conversion is made pursuant to Section 5.1.1(a) the F Current Market

Price shall be the market price on May 19, 2004. The market price for each

such Trading Day shall be the last reported sales price on the principal

exchange on which the Common Stock is listed, or, if it is not so listed, the

Nasdaq National Market or, if it is not so listed, on the over-the-counter

market.

 

         1.6 "F Division Amount" shall mean $10.00 (as adjusted pursuant to

Section 5).

 

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         1.7 "F Junior Stock" shall mean the Common Stock and any other class

or series of capital stock of the Corporation which at the time of issuance

is not declared to be senior to or on a parity with the Series F Preferred

Stock as to rights upon liquidation or dividends.

 

         1.8 "License Agreement" shall mean that certain License Agreement

dated as of May 19, 2000 by and among the Corporation and PFC Therapeutics,

LLC ("PFC"), as it may be amended from time to time.

 

         1.9 "Person" shall mean any individual, corporation, association,

company, business trust, partnership, joint venture, joint-stock company,

trust, unincorporated organization or association or government or any agency

or political subdivision thereof.

 

         1.10 "Trading Day" shall mean any day on which trading takes place

(a) if the Common Stock is then listed or admitted to trading on a national

securities exchange, on the principal national securities exchange on which

the Common Stock is then listed or admitted to trading; or (b) if not, in the

over-the-counter-market and prices reflecting such trading are published by

the National Association of Securities Dealers Automated Quotation System.

 

         2. DIVIDENDS. Series F Preferred Stock shall not be entitled to

receive any dividends (other than dividends payable in F Junior Stock or

distributions pursuant to Section 5.6).

 

         3.       LIQUIDATION OR DISSOLUTION.

 

         3.1 RANK. The Series F Preferred Stock of the Corporation shall rank

on a parity with the Series G Preferred Stock and the Series H Preferred

Stock as to distributions upon a liquidation, dissolution or winding-up of

the Corporation and any other preferred stock issued by the Corporation.

 

         3.2 PREFERENCE. Subject to the prior rights of the Corporation's

creditors and holders of securities senior to the Series F Preferred Stock in

respect of distributions upon liquidation, dissolution or winding-up of the

Corporation, in the event of the voluntary or involuntary liquidation,

dissolution or winding-up of the Corporation, the holders of Series F

Preferred Stock shall be entitled to receive forty dollars $40.00 per share.

If, upon any such liquidation, dissolution or winding-up of the Corporation,

the assets distributable among the holders of Series F Preferred Stock (and

any series of preferred stock ranking in parity with the Series F Preferred

Stock in respect of distributions upon liquidation, dissolution or winding-up

of the Corporation) shall be insufficient to permit the payment in full to

such holders of the preferential amount payable to such holders determined as

aforesaid, then the holders of Series F Preferred Stock (and any such series)

will share ratably in any distribution of the Corporation's assets in

proportion to the respective preferential amounts that would have been

payable if such assets

 

                                       5

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were sufficient to permit payment in full of all such amounts. After payment

of the full amount of the liquidating distribution to which the holders of

Series F Preferred Stock are entitled, holders of F Junior Stock (other than

Common Stock) shall be paid any preferential amounts payable to such holders.

Thereafter, the holders of Series F Preferred Stock will share PRO RATA with

the holders of Common Stock (and the holders of F Junior Stock entitled to

share PRO RATA with Common Stock in liquidating distributions), based on the

number of shares of Common Stock into which the Series F Preferred Stock is

then convertible, any further distribution of assets by the Corporation.

Under this Section 3, a distribution of assets in any dissolution, winding-up

or liquidation shall not include (a) any consolidation or merger of the

Corporation with or into any other corporation, (b) any dissolution,

liquidation or winding-up of the Corporation immediately followed by

reincorporation of a successor corporation or (c) a sale or other disposition

of all or substantially all of the Corporation's assets in consideration for

the issuance of equity securities of another corporation, provided that the

consolidation, merger, dissolution, liquidation, winding-up, sale or other

disposition (i) does not amend, alter, or change the preferences or rights of

the Series F Preferred Stock or the qualifications, limitations or

restrictions thereof in a manner that adversely affects the Series F

Preferred Stock or (ii) is done in accordance with Sections 5.5, 5.6 or 5.7

hereof.

 

         4. VOTING RIGHTS. The holders of Series F Preferred Stock shall not

be entitled to any voting rights except as otherwise required by law.

 

         5. CONVERSION RIGHTS.

 

         5.1 CONVERSION OF SERIES F PREFERRED STOCK. The Series F Preferred

Stock shall convert into fully paid and non-assessable shares of Common Stock

as follows:

 

                  5.1.1 The Series F Preferred Stock shall convert at the F

         Conversion Rate into Common Stock on the earlier of the following;

         provided that once the F Current Market Price per share of Common Stock

         is equal to or greater than $22, subject to adjustment pursuant to

         Section 5.5, the F Current Market Price shall be deemed fixed at $22

         (subject to such adjustment) for all conversions of the Series F

         Preferred Stock hereunder.

 

                  (a) At the option of a holder of the Series F Preferred Stock,

         exercisable on or after May 19, 2004, such holder's Series F Preferred

         Stock shall convert;

 

                  (b) (i) Termination of the License Agreement other than

         pursuant to Section 5.1.1(b)(ii) below or (ii) termination of the

         License Agreement by PFC pursuant to Section 10.3(a) thereof, (in

         either case, unless termination of the License Agreement is as a result

         of the liquidation of the Corporation, the appointment of a receiver or

         trustee for substantially all of the property or assets of the

         Corporation, or the Corporation makes an assignment for the benefit of

         creditors, in each case, in accordance with the License Agreement);

 

 

                                       6

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                  (c) At the option of a holder of the Series F Preferred Stock,

         such holder's Series F Preferred Stock shall convert at any time that

         the F Current Market Price per share of Common Stock is equal to or

         greater than $22.00, subject to adjustment pursuant to Section 5.5; or

 

                  (d) At the option of a holder of the Series F Preferred Stock,

         such holder's Series F Preferred Stock shall convert upon a Change of

         Control of the Corporation.

 

         5.2 ISSUANCE LIMITATION. If, pursuant to Section 5 of Article 4(c),

Section 6 of Article 4(d) or Section 6 of Article 4(e), a conversion event

occurs or a conversion election is made and conversion of shares of Series F

Preferred Stock, Series G Preferred Stock or Series H Preferred Stock (the

shares of the three series collectively, the "Preferred Shares") subject to

such section would, when taken together with the conversion of any other

Preferred Shares, result in the issuance by the Company of a number of shares

(the "Additional Shares") of its Common Stock greater than the "Issuance

Limit," then the Company need not issue the Additional Shares, unless it

first obtains shareholder approval of the issuance of the Additional Shares.

"Issuance Limit" means 9,389,477 shares of Common Stock (that is, 19.9% of

the shares of Common Stock issued and outstanding as of May 16, 2000), as

such number may be adjusted pursuant to Sections 5.5 of Article 4(c), Section

6.5 of Article 4(d) or Section 6.5 of Article 4(e). If the Company does not

obtain shareholder approval for the issuance of the Additional Shares or, in

any event, does not, prior to the expiration of 120 days after such

conversion event or conversion election, issue the Additional Shares required

to be issued as a result of such conversion event or conversion election, the

Company shall pay to each person entitled to receive such Additional Shares

an amount in cash equal to the aggregate market price of such Additional

Shares on the day that the conversion event occurred or the conversion

election was made. The market price for such day shall be the last reported

sales price on the principal exchange on which the Common Stock is listed,

or, if it is not so listed, the Nasdaq National Market or, if it is not so

listed, on the over-the-counter market.

 

         5.3 CONVERSION PROCEDURE. Upon conversion of Series F Preferred

Stock, the shares so converted shall have the status of authorized and

unissued preferred stock, and the number of shares of preferred stock which

the corporation shall have authority to issue shall include the number of

shares of Series F Preferred Stock so converted. Upon any conversion,

certificates representing the Series F Preferred Stock shall thereafter be

deemed to represent the appropriate number of shares of Common Stock into

which such stock is converted. After conversion the holder of any shares of

Series F Preferred Stock so converted shall deliver to the Corporation during

regular business hours, at such place as may be designated by the

Corporation, the certificate or certificates for the shares to be converted,

duly endorsed or assigned in blank, or to the Corporation (if required by

it), accompanied by written notice stating the name or names (with address)

in which the certificate or certificates for the shares of Common Stock are

to be issued.

 

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         5.4 FRACTIONAL SHARES. No fractional shares of Common Stock or scrip

shall be issued upon conversion of shares of Series F Preferred Stock. If

more than one share of Series F Preferred Stock shall be surrendered for

conversion at any one time by the same holder, the number of full shares of

Common Stock issuable upon conversion thereof shall be computed on the basis

of the aggregate number of shares so surrendered. Instead of any fractional

shares of Common Stock which would otherwise be issuable upon any such

conversion, the Corporation shall pay a cash adjustment in respect of such

fractional interest in an amount determined on the basis of the then current

fair market value of a share of Common Stock as determined by the Board of

Directors of the Corporation, in good faith. Fractional interests shall not

be entitled to dividends, and the holders thereof shall not be entitled to

any rights as stockholders of the Corporation in respect of such fractional

interests.

 

         5.5 ADJUSTMENTS FOR SUBDIVISIONS, STOCK DIVIDENDS, COMBINATIONS, OR

CONSOLIDATIONS OF COMMON STOCK. In the event the outstanding shares of Common

Stock shall be increased by way of stock issued as a dividend for no

consideration or subdivided (by stock split, or otherwise) into a greater

number of shares of Common Stock, the F Division Amount and the per share

amount specified in Section 1.3(ii) and Section 5.1.1(c) then in effect

shall, concurrently with the effectiveness of such increase or subdivision,

be proportionately decreased and the number of shares constituting the

Issuance Limit shall be proportionally increased. In the event the

outstanding shares of Common Stock shall be combined or consolidated, by

reclassification or otherwise, into a lesser number of shares of Common

Stock, the F Division Amount and the per share amount specified in Section

1.3(ii) and Section 5.1.1(c) then in effect shall, concurrently with the

effectiveness of such combination or consolidation, be proportionately

increased and the number of shares constituting the Issuance Limit shall be

proportionally decreased.

 

         5.6 OTHER DISTRIBUTIONS. If for any reason, including without

limitation a merger or sale of assets transaction, the Corporation shall

declare a distribution payable in securities of the Corporation, or in

securities of other persons, evidences of indebtedness issued by the

Corporation or other persons, or assets (excluding cash dividends) then, in

each such case for the purpose of this Section 5.6, the holders of the Series

F Preferred Stock shall be entitled to a proportionate share of such

distribution as though they were the holders of the number of shares of

Common Stock of the Corporation into which their shares of Series F Preferred

Stock would be convertible as of the record date fixed for the determination

of the holders of Common Stock of the Corporation entitled to receive such

distribution.

 

         5.7 REORGANIZATIONS AND RECAPITALIZATIONS. If at any time or from

time to time there shall be a reorganization or recapitalization of the

Common Stock (other than a subdivision, combination or merger or sale of

assets transaction provided for in Section 5.5 or Section 5.6 above), then,

as a condition of such reorganization or recapitalization, provision shall be

made so that the holders of the Series F Preferred Stock shall thereafter be

entitled to receive upon conversion of the Series F Preferred Stock, the

number of shares of stock or other securities or property of the Corporation

or otherwise to which a holder of Common Stock deliverable upon

 

                                       8

<PAGE>

 

conversion would have been entitled on such reorganization or

recapitalization. In any such case, appropriate adjustment shall be made in

the application of the provisions of this Section 5 with respect to the

rights of the holders of the Series F Preferred Stock after the

reorganization or recapitalization to the end that the provisions of this

Section 5 (including adjustment of the F Conversion Rate and the F Division

Amount then in effect and the number of shares receivable upon conversion of

the Series F Preferred Stock) shall be applicable after that event in as

nearly an equivalent manner as may be practicable.

 

         5.8 RESERVATION OF SHARES. The Corporation agrees that, so long as

any share of Series F Preferred Stock shall remain outstanding, the

Corporation shall at all times reserve and keep available, free from

preemptive rights, out of its authorized capital stock, for the purpose of

issue upon conversion of the Series F Preferred Stock, the full number of

shares of Common Stock then issuable upon conversion of all outstanding

shares of Series F Preferred Stock. If the Common Stock shall be listed on

any national securities exchange, the Corporation at its expense shall

include in a listing application all of the shares of Common Stock reserved

for issuance upon conversion of the Series F Preferred Stock, (subject to

issuance or notice of issuance to the exchange) and will similarly apply for

and use its best efforts to procure the listing of any further Common Stock

reserved for issuance upon conversion of the Series F Preferred Stock, at any

subsequent time as a result of adjustments in the F Conversion Rate or

otherwise.

 

         5.9 VALIDITY OF SHARES. The Corporation agrees that it will from

time to time take all such actions as may be requisite to assure that all

shares of Common Stock which may be issued upon conversion of any share of

the Series F Preferred Stock will, upon issuance, be legally and validly

issued, fully paid and non-assessable and free from all taxes, liens and

charges with respect to the issue thereof.

 

         5.10 TAXES. The Corporation will pay all taxes and other

governmental charges that may be imposed in respect of the issue or delivery

(but not transfer) of shares of Common Stock upon conversion of the Series F

Preferred Stock.

 

         5.11 ABANDONMENT OF ACTION. If the Corporation shall take a record

of the holders of its Common Stock for the purpose of entitling them to

receive a dividend or distribution requiring an adjustment pursuant to

Section 5 and shall, thereafter and before the distribution to stockholders

thereof, legally abandon its plan to pay or deliver such dividend or

distribution, then thereafter no adjustment to the holders of Series F

Preferred Stock shall be required by reason of the taking of such record and

any such adjustment previously made in respect thereof shall be rescinded and

annulled.

 

         5.12 NOTICE PROVISIONS.

 

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                  5.12.1 Whenever an adjustment is required pursuant to Section

         5 hereof, the Corporation shall forthwith deliver to the holders of

         Series F Preferred Stock, a certificate signed by an officer of the

         Corporation, setting forth, in reasonable detail, the event requiring

         the adjustment, the method by which such adjustment was calculated and

         the adjustments made.

 

                  5.12.2 In case the Corporation shall propose (a) to pay any

         dividend payable in stock of any class to the holders of F Junior Stock

         or to make any other distribution to the holders of its Common Stock,

         (b) to offer to the holders of its Common Stock rights to subscribe for

         or to purchase any Convertible Securities, Common Stock or shares of

         stock of any class or any other securities, rights or options, (c) to

         effect any reclassification of its Common Stock (other than a

         reclassification involving only the subdivision or combination of

         outstanding shares of Common Stock), (d) to effect any capital

         reorganization, (e) to effect any consolidation, merger or sale,

         transfer or other distribution of all or substantially all its

         property, assets or business, or (f) to effect the liquidation,

         dissolution or winding-up of the Corporation, then, in each such case,

         the Corporation shall give to each holder of Series F Preferred Stock a

         notice of such proposed action, which shall specify the date on which a

         record is to be taken for the purposes of such stock dividend,

         distribution or rights, or the date on which such reclassification,

         reorganization, consolidation, merger, sale, transfer, disposition,

         liquidation, dissolution or winding-up is to take place and the date of

         participation therein by the holders of Common Stock, if any such date

         is to be fixed, and shall also set forth such facts with respect

         thereto as shall be reasonably necessary to indicate the effect of such

         action on the Common Stock and the F Conversion Rate and the F Division

         Amount after giving effect to any adjustment which will be required as

         a result of such action. Such notice shall be so given in the case of

         any action covered by (a) or (b) above at least ten (10) days prior to

         the record date for determining holders of the Common Stock for

         purposes of such action and, in the case of any other such action, at

         least ten (10) days prior to the date of the taking of such proposed

         action or the date of participation therein by the holders of Common

         Stock, whichever shall be the earlier.

 

         6. NO PRE-EMPTIVE RIGHTS. No holder of Series F Preferred Stock

shall have any pre-emptive or preferential right of subscription to any

shares of stock of the Corporation, or to options, warrants or other

interests therein or therefor, or to any obligations convertible into stock

of the Corporation, issued or sold, or any right of subscription to any

thereof other than such, if any, as the Board of Directors, in its

discretion, from time to time may determine and at such price or prices as

the Board of Directors from time to time may fix pursuant to the authority

conferred by the Corporation's Certificate of Incorporation.

 

         7. COVENANTS. In addition to any other rights provided by law, so

long as any shares of Series F Preferred Stock are outstanding, this

Corporation shall not, without first obtaining the affirmative vote or

written consent of the holders of not less than sixty-six and two-thirds

percent (66-2/3%) of the Series F Preferred Stock:

 

                                       10

<PAGE>

 

 

                  (a) Amend or repeal any provisions of the Corporation's

         Certificate of Incorporation which action would adversely affect the

         rights, preferences, or privileges of the Series F Preferred Stock; or

 

                  (b) Alter or change the designations, powers, rights,

         preferences or privileges, or the qualification, limitations or

         restrictions of the Series F Preferred Stock; or

 

                  (c) Increase the authorized number of shares of Series F

         Preferred Stock or other preferred stock of the Corporation; or

 

                  (d) Authorize, create, or issue any new class or series of

         stock or any other securities convertible into equity securities of the

         Corporation having a preference over the Series F Preferred Stock with

         respect to dividends, redemptions or upon liquidation or dissolution of

         the Corporation; or

 

                  (e) Reclassify the shares of Common Stock or any other F

         Junior Stock into shares of any class or series of capital stock (i)

         ranking either as to payment of dividends, distribution of assets or

         redemptions, prior to or on parity with the Series F Preferred Stock,

         or (ii) which in any manner adversely affects the holders of Series F

         Preferred Stock.

 

                  (d) Thirteen thousand six hundred thirty seven (13,637) shares

         of the Corporation's preferred stock, par value $0.01 per share, are

         designated "Series G Preferred Stock" (hereinafter referred to as the

         "Series G Preferred Stock"), and such Series G Preferred Stock shall

         have the respective voting powers, designations, preferences and

         relative, participating, optional or other rights, and the

         qualifications, limitations or restrictions as follows:

 

         1. SECTION REFERENCES AND DEFINITIONS. References to section numbers

contained in this Article 4(d) shall refer only to sections within this

Article 4(d) unless otherwise specified. Capitalized terms in this Article

4(d) shall have the following meanings:

 

         "1.1 Change of Control" shall mean the following and shall be deemed

to occur if any of the following events occur:

 

                  (i) Any "person," as such term is used in Sections 13(d) and

         14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange

         Act") (a "Person"), is or becomes the "beneficial owner," as defined in

         Rule 13d-3 under the Exchange Act (a "Beneficial Owner"), directly or

         indirectly, of securities of the Corporation representing (i) 20% or

         more of the combined voting power of the Corporation's then outstanding

         voting securities, which acquisition is not approved in advance of the

         acquisition or within thirty (30) days after the acquisition by a

         majority of the Incumbent Board (as hereinafter defined) or (ii) 33% or

         more of the combined voting power of the Corporation's then outstanding

         voting securities, without regard to whether such acquisition is

         approved by the Incumbent Board;

 

 

                                       11

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                  (ii) Persons who constitute the board of directors (the

         "Incumbent Board") of the Corporation cease for any reason to

         constitute at least a majority of the Corporation's board of directors,

         provided that any person becoming a director whose election, or

         nomination for election by the Corporation's stockholders, is approved

         by a vote of at least a majority of the directors then constituting the

         Incumbent Board (other than an election or nomination of an individual

         whose initial assumption of office is in connection with an actual or

         threatened election contest relating to the election of the directors

         of the Corporation, as such terms are used in Rule 14a-11 of Regulation

         14A promulgated under the Exchange Act) shall, for the purposes of this

         Agreement, be considered as though such person were a member of the

         Incumbent Board of the Corporation;

 

                  (iii) The consummation of a merger, consolidation or

         reorganization involving the Corporation, other than one which

         satisfies both of the following conditions:

 

                           (A) a merger, consolidation or reorganization which

                  would result in the voting securities of the Corporation

                  outstanding immediately prior thereto continuing to represent

                  (either by remaining outstanding or by being converted into

                  voting securities of another entity) at least 55% of the

                  combined voting power of the voting securities of the

                  Corporation or such other entity resulting from the merger,

                  consolidation or reorganization (the "Surviving Corporation")

                  outstanding immediately after such merger, consolidation or

                  reorganization and being held in substantially the same

                  proportion as the ownership in the Corporation's voting

                  securities immediately before such merger, consolidation or

                  reorganization, and

 

                           (B) a merger, consolidation or reorganization in

                  which no Person is or becomes the Beneficial Owner, directly

                  or indirectly, of securities of the Corporation representing

                  20% or more of the combined voting power of the Corporation's

                  then outstanding voting securities; or

 

                  (iv) The stockholders of the Corporation approve a plan of

         complete liquidation of the Corporation or an agreement for the sale or

         other disposition by the Corporation of all or substantially all of the

         Corporation's assets.

 

         Notwithstanding the preceding provisions of this definition, a

Change in Control shall not be deemed to have occurred if the Person

described in the preceding provisions is (1) an underwriter or underwriting

syndicate that has acquired the ownership of any of the Corporation's then

outstanding voting securities solely in connection with a public offering of

the Corporation's securities, (2) the Corporation or an affiliate of the

Corporation, or (3) an employee stock ownership plan or other employee

benefit plan maintained by the Corporation or any of its affiliates that is

qualified under the provisions of the United States Internal Revenue Code of

1986.

 

         1.2 "Common Stock" shall mean the shares of the Common Stock of the

Corporation, par value $.01 per share, and any stock into which such Common

Stock may hereafter be changed.

 

                                       12

<PAGE>

 

 

         1.3 "Convertible Securities" shall mean evidences of indebtedness,

shares of stock or other securities which are convertible into or

exchangeable, with or without payment of additional consideration in cash or

property, for Common Stock, either immediately or upon the arrival of a

specified date or the happening of a specified event.

 

         1.4 "G Junior Stock" shall mean the Common Stock and any other class

or series of capital stock of the Corporation which at the time of issuance

is not declared to be senior to or on a parity with the Series G Preferred

Stock as to rights upon liquidation or dividends.

 

         1.5 "G Redemption Price" shall mean $1,100 per share plus any

dividends accrued on or before the date of the G Redemption Notice.

 

         1.6 "Person" shall mean any individual, corporation, association,

company, business trust, partnership, joint venture, joint-stock company,

trust, unincorporated organization or association or government or any agency

or political subdivision thereof.

 

         1.7 "Trading Day" shall mean any day on which trading takes place

(a) if the Common Stock is then listed or admitted to trading on a national

securities exchange, on the principal national securities exchange on which

the Common Stock is then listed or admitted to trading; or (b) if not, in the

over-the-counter-market and prices reflecting such trading are published by

the National Association of Securities Dealers Automated Quotation System.

 

         2. DIVIDENDS. Before any dividends (other than dividends payable in

Common Stock) on any G Junior Stock shall be declared or paid or set apart

for payment, the holders of shares of Series G Preferred Stock shall be

entitled to receive cash dividends, when and as declared by the Board of

Directors from the date of issuance through March 15, 2005, at the annual

rate of $82.50 per share, and no more. Dividends on the Series G Preferred

Stock shall accumulate on an annual compounded basis (based on actual days

elapsed over 365/366) and any accumulated dividends shall be payable to a

holder of record on the earlier of: (i) redemption by the Corporation of such

holder's Series G Preferred Stock or (ii) March 31, 2005. The Series G

Preferred Stock shall rank on a parity with the Series H Preferred Shares as

to dividends. Whenever, at any time, the accrued dividends shall have been

paid or declared and set apart for payment on the then outstanding Series G

Preferred Stock, the Board of Directors may declare dividends on any G Junior

Stock, subject to the respective terms and provisions (if any) applying

thereto.

 

         3. LIQUIDATION OR DISSOLUTIONS

 

         3.1 RANK. The Series G Preferred Stock of the Corporation shall rank

on a parity with the Series F Preferred Stock and the Series H Preferred

Stock as to distributions upon a

 

                                       13

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liquidation, dissolution or winding-up of the Corporation and any other

preferred stock of the Corporation.

 

         3.2 PREFERENCE. Subject to the prior rights of the Corporation's

creditors and holders of securities senior to the Series G Preferred Stock in

respect of distributions upon liquidation, dissolution or winding-up of the

Corporation, in the event of the voluntary or involuntary liquidation,

dissolution or winding-up of the Corporation, the holders of Series G

Preferred Stock shall be entitled to receive one thousand one hundred dollars

($1,100) per share, plus an amount equal to any accumulated dividends through

the date of such liquidation, dissolution or winding-up. The amount of

dividends "accumulated" on any share of Series G Preferred Stock as at any

annual dividend date shall be deemed to be the amount of any unpaid dividends

accumulated thereon to and including such annual dividend date, whether or

not earned or declared, and the amount of dividends "accumulated" on any

share of Series G Preferred Stock as at any date other than an annual

dividend date shall be calculated in accordance with Section 2 of this

Article 4(d). If, upon any such liquidation, dissolution or winding-up of the

Corporation, the assets distributable among the holders of Series G Preferred

Stock (and any series of preferred stock ranking in parity with the Series G

Preferred Stock in respect of distributions upon liquidation, dissolution or

winding-up of the Corporation) shall be insufficient to permit the payment in

full to such holders of the preferential amount payable to such holders

determined as aforesaid, then the holders of Series G Preferred Stock (and

any such series) will share ratably in any distribution of the Corporation's

assets in proportion to the respective preferential amounts that would have

been payable if such assets were sufficient to permit payment in full of all

such amounts. After payment of the full amount of the liquidating

distribution to which the holders of Series G Preferred Stock are entitled,

holders of G Junior Stock (other than Common Stock) shall be paid any

preferential amounts payable to such holders. Thereafter, the holders of

Series G Preferred Stock will share PRO RATA with the holders of Common Stock

(and the holders of G Junior Stock entitled to share PRO RATA with Common

Stock in liquidating distributions), based on the number of shares of Common

Stock into which the Series G Preferred Stock is then convertible, any

further distribution of assets by the Corporation. Under this Section 3, a

distribution of assets in any dissolution, winding-up or liquidation shall

not include (a) any consolidation or merger of the Corporation with or into

any other corporation, (b) any dissolution, liquidation or winding-up of the

Corporation immediately followed by reincorporation of a successor

corporation or (c) a sale or other disposition of all or substantially all of

the Corporation's assets in consideration for the issuance of equity

securities of another corporation, provided that the consolidation, merger,

dissolution, liquidation, winding-up, sale or other disposition (i) does not

amend, alter, or change the preferences or rights of the Series G Preferred

Stock or the qualifications, limitations or restrictions thereof in a manner

that adversely affects the Series G Preferred Stock or (ii) is done in

accordance with Sections 6.4, 6.5 or 6.6 hereof.

 

         4. VOTING RIGHTS. The holders of Series G Preferred Stock shall not

be entitled to any voting rights except as otherwise required by law.

 

                                       14

<PAGE>

 

 

         5. REDEMPTION.

 

                  (a) At the Corporation's option, from the date the Series G

         Preferred Stock is issued until all the Series G Preferred Stock is

         converted, all outstanding and unconverted Series G Preferred Stock may

         be redeemed by the Corporation pursuant to this Section 5(a), from

         funds legally available therefor at the G Redemption Price. The

         Corporation shall provide at least 10 days and not more than 30 days

         advance written notice of redemption to each holder of the Series G

         Preferred Stock (a "G Redemption Notice"), which notice shall set forth

         the date (the "Redemption Date") fixed for such redemption; provided

         that any G Redemption Notice given after March 15, 2005 shall be given

         at least 30 days and not more than 45 days in advance of the Redemption

         Date stated therein.

 

                  (b) The entire redemption price of the shares of Series G

         Preferred Stock outstanding on a Redemption Date shall be paid in cash

         on such Redemption Date. If any portion of the applicable G Redemption

         Price under Section 6(a) shall not be paid by the Corporation within

         ten (10) calendar days after the date due, interest shall accrue

         thereon at the rate of 7.5% per annum until the redemption price plus

         all such interest is paid in full (which amount shall be paid as

         liquidated damages and not as a penalty).

 

         6. CONVERSION RIGHTS.

 

         6.1 CONVERSION OF SERIES G PREFERRED STOCK. At the option of a

holder of the Series G Preferred Stock, each share of such holder's Series G

Preferred Stock shall convert into one hundred fully paid and non-assessable

shares of Common Stock:

 

                  6.1.1 Until the close of business on the date preceding the

         Redemption Date on or after March 15, 2005; or

 

                  6.1.2 Upon a Change of Control of the Corporation.

 

         6.2 ISSUANCE LIMITATION. If, pursuant to Section 5 of Article 4(c),

Section 6 of Article 4(d) or Section 6 of Article 4(e), a conversion event

occurs or a conversion election is made and conversion of shares of Series F

Preferred Stock, Series G Preferred Stock or Series H Preferred Stock (the

shares of the three series collectively, the "Preferred Shares") subject to

such section would, when taken together with the conversion of any other

Preferred Shares, result in the issuance by the Company of a number of shares

(the "Additional Shares") of its Common Stock greater than the "Issuance

Limit," then the Company need not issue the Additional Shares, unless it

first obtains shareholder approval of the issuance of the Additional Shares.

"Issuance Limit" means 9,389,477 shares of Common Stock (that is, 19.9% of

the shares of Common Stock issued and outstanding as of May 16, 2000), as

such number may be adjusted pursuant to Sections 5.5 of Article 4(c), Section

6.5 of Article 4(d) or Section 6.5 of Article 4(e). If the Company does

 

                                       15

<PAGE>

 

 

not obtain shareholder approval for the issuance of the Additional Shares or,

in any event, does not, prior to the expiration of 120 days after such

conversion event or conversion election, issue the Additional Shares required

to be issued as a result of such conversion event or conversion election, the

Company shall pay to each person entitled to receive such Additional Shares

an amount in cash equal to the aggregate market price of such Additional

Shares on the day that the conversion event occurred or the conversion

election was made. The market price for such day shall be the last reported

sales price on the principal exchange on which the Common Stock is listed,

or, if it is not so listed, the Nasdaq National Market or, if it is not so

listed, on the over-the-counter market.

 

         6.3 CONVERSION PROCEDURE. Upon conversion of Series G Preferred

Stock, the shares so converted shall have the status of authorized and

unissued preferred stock, and the number of shares of preferred stock which

the corporation shall have authority to issue shall include the number of

shares of Series G Preferred Stock so converted. Upon any conversion,

certificates representing the Series G Preferred Stock shall thereafter be

deemed to represent the appropriate number of shares of Common Stock into

which such stock is converted. After conversion the holder of any shares of

Series G Preferred Stock so converted shall deliver to the Corporation during

regular business hours, at such place as may be designated by the

Corporation, the certificate or certificates for the shares to be converted,

duly endorsed or assigned in blank, or to the Corporation (if required by

it), accompanied by written notice stating the name or names (with address)

in which the certificate or certificates for the shares of Common Stock are

to be issued.

 

         6.4 FRACTIONAL SHARES. No fractional shares of Common Stock or scrip

shall be issued upon conversion of shares of Series G Preferred Stock. If

more than one share of Series G Preferred Stock shall be surrendered for

conversion at any one time by the same holder, the number of full shares of

Common Stock issuable upon conversion thereof shall be computed on the basis

of the aggregate number of shares so surrendered. Instead of any fractional

shares of Common Stock which would otherwise be issuable upon any such

conversion, the Corporation shall pay a cash adjustment in respect of such

fractional interest in an amount determined on the basis of the then current

fair market value of a share of Common Stock as determined by the Board of

Directors of the Corporation, in good faith. Fractional interests shall not

be entitled to dividends, and the holders thereof shall not be entitled to

any rights as stockholders of the Corporation in respect of such fractional

interests.

 

         6.5 ADJUSTMENTS FOR SUBDIVISIONS, STOCK DIVIDENDS, COMBINATIONS, OR

CONSOLIDATIONS OF COMMON STOCK. In the event the outstanding shares of Common

Stock shall be increased by way of stock issued as a dividend for no

consideration or subdivided (by stock split, or otherwise) into a greater

number of shares of Common Stock, the number of shares of Common Stock

issuable upon conversion of the Series G Preferred Stock then outstanding

shall, concurrently with the effectiveness of such increase or subdivision,

be proportionately increased and the number of shares constituting the

Issuance Limit shall be proportionally increased. In the event the

outstanding shares of Common Stock shall be combined or consolidated, by

 

                                       16

<PAGE>

 

 

reclassification or otherwise, into a lesser number of shares of Common

Stock, the number of shares of Common Stock issuable upon conversion of the

Series G Preferred Stock then outstanding shall, concurrently with the

effectiveness of such combination or consolidation, be proportionately

decreased and the number of shares constituting the Issuance Limit shall be

proportionally decreased.

 

         6.6 OTHER DISTRIBUTIONS. If for any reason, including without

limitation a merger or sale of assets transaction, the Corporation shall

declare a distribution payable in securities of the Corporation, or in

securities of other persons, evidences of indebtedness issued by the

Corporation or other persons, or assets (excluding cash dividends) then, in

each such case for the purpose of this Section 6.6, the holders of the Series

G Preferred Stock shall be entitled to a proportionate share of such

distribution as though they were the holders of the number of shares of

Common Stock of the Corporation into which their shares of Series G Preferred

Stock would be convertible as of the record date fixed for the determination

of the holders of Common Stock of the Corporation entitled to receive such

distribution.

 

         6.7 REORGANIZATIONS AND RECAPITALIZATIONS. If at any time or from

time to time there shall be a reorganization or recapitalization of the

Common Stock (other than a subdivision, combination or merger or sale of

assets transaction provided for in Section 6.5 or Section 6.6 above), then,

as a condition of such reorganization or recapitalization, provision shall be

made so that the holders of the Series G Preferred Stock shall thereafter be

entitled to receive upon conversion of the Series G Preferred Stock, the

number of shares of stock or other securities or property of the Corporation

or otherwise to which a holder of Common Stock deliverable upon conversion

would have been entitled on such reorganization or recapitalization. In any

such case, appropriate adjustment shall be made in the application of the

provisions of this Section 6 with respect to the rights of the holders of the

Series G Preferred Stock after the reorganization or recapitalization to the

end that the provisions of this Section 6 (including adjustment to the number

of shares of Common Stock receivable upon conversion of the Series G

Preferred Stock) shall be applicable after that event in as nearly an

equivalent manner as may be practicable.

 

         6.8 RESERVATION OF SHARES. The Corporation agrees that, so long as

any share of Series G Preferred Stock shall remain outstanding, the

Corporation shall at all times reserve and keep available, free from

preemptive rights, out of its authorized capital stock, for the purpose of

issue upon conversion of the Series G Preferred Stock, the full number of

shares of Common Stock then issuable upon conversion of all outstanding

shares of Series G Preferred Stock. If the Common Stock shall be listed on

any national securities exchange, the Corporation at its expense shall

include in a listing application all of the shares of Common Stock reserved

for issuance upon conversion of the Series G Preferred Stock, (subject to

issuance or notice of issuance to the exchange) and will similarly apply for

and use its best efforts to procure the listing of any further Common Stock

reserved for issuance upon conversion of the Series G Preferred Stock, at any

subsequent time as a result of adjustments in the number of shares of Common

Stock issuable upon conversion of the Series G Preferred Stock.

 

                                       17

<PAGE>

 

 

         6.9 VALIDITY OF SHARES. The Corporation agrees that it will from

time to time take all such actions as may be requisite to assure that all

shares of Common Stock which may be issued upon conversion of any share of

the Series G Preferred Stock will, upon issuance, be legally and validly

issued, fully paid and non-assessable and free from all taxes, liens and

charges with respect to the issue thereof.

 

         6.10 TAXES. The Corporation will pay all taxes and other

governmental charges that may be imposed in respect of the issue or delivery

(but not transfer) of shares of Common Stock upon conversion of the Series G

Preferred Stock.

 

         6.11 ABANDONMENT OF ACTION. If the Corporation shall take a record

of the holders of its Common Stock for the purpose of entitling them to

receive a dividend or distribution requiring an adjustment pursuant to

Section 6 and shall, thereafter and before the distribution to stockholders

thereof, legally abandon its plan to pay or deliver such dividend or

distribution, then thereafter no adjustment to the holders of Series G

Preferred Stock shall be required by reason of the taking of such record and

any such adjustment previously made in respect thereof shall be rescinded and

annulled.

 

         6.12 NOTICE PROVISIONS.

 

                  6.12.1 Whenever an adjustment is required pursuant to Section

         6 hereof, the Corporation shall forthwith deliver to the holders of

         Series G Preferred Stock, a certificate signed by an officer of the

         Corporation, setting forth, in reasonable detail, the event requiring

         the adjustment, the method by which such adjustment was calculated and

         the adjustments made.

 

                  6.12.2 In case the Corporation shall propose (a) to pay any

         dividend payable in stock of any class to the holders of G Junior Stock

         or to make any other distribution to the holders of its Common Stock,

         (b) to offer to the holders of its Common Stock rights to subscribe for

         or to purchase any Convertible Securities, Common Stock or shares of

         stock of any class or any other securities, rights or options, (c) to

         effect any reclassification of its Common Stock (other than a

         reclassification involving only the subdivision or combination of

         outstanding shares of Common Stock), (d) to effect any capital

         reorganization, (e) to effect any consolidation, merger or sale,

         transfer or other distribution of all or substantially all its

         property, assets or business, or (f) to effect the liquidation,

         dissolution or winding-up of the Corporation, then, in each such case,

         the Corporation shall give to each holder of Series G Preferred Stock a

         notice of such proposed action, which shall specify the date on which a

         record is to be taken for the purposes of such stock dividend,

         distribution or rights, or the date on which such reclassification,

         reorganization, consolidation, merger, sale, transfer, disposition,

         liquidation, dissolution or winding-up is to take place and the date of

         participation therein by the holders of Common Stock, if any such date

         is to be fixed, and shall also set forth such facts with respect

         thereto as shall be reasonably necessary to indicate the effect of such

         action on the Common Stock and the

 

 

                                       18

<PAGE>

 

 

         number of shares of Common Stock issuable upon conversion of the Series

         G Preferred Stock after giving effect to any adjustment which will be

         required as a result of such action. Such notice shall be so given in

         the case of any action covered by (a) or (b) above at least ten (10)

         days prior to the record date for determining holders of the Common

         Stock for purposes of such action and, in the case of any other such

         action, at least ten (10) days prior to the date of the taking of such

         proposed action or the date of participation therein by the holders of

         Common Stock, whichever shall be the earlier.

 

         7. NO PRE-EMPTIVE RIGHTS. No holder of Series G Preferred Stock

shall have any pre-emptive or preferential right of subscription to any

shares of stock of the Corporation, or to options, warrants or other

interests therein or therefor, or to any obligations convertible into stock

of the Corporation, issued or sold, or any right of subscription to any

thereof other than such, if any, as the Board of Directors, in its

discretion, from time to time may determine and at such price or prices as

the Board of Directors from time to time may fix pursuant to the authority

conferred by the Corporation's Certificate of Incorporation.

 

         8. COVENANTS. In addition to any other rights provided by law, so

long as any shares of Series G Preferred Stock are outstanding, this

Corporation shall not, without first obtaining the affirmative vote or

written consent of the holders of not less than sixty-six and two-thirds

percent (66-2/3%) of the Series G Preferred Stock:

 

                  (a) Amend or repeal any provisions of the Corporation's

     Certificate of Incorporation which action would adversely affect the

     rights, preferences, or privileges of the Series G Preferred Stock; or

 

                  (b) Alter or change the designations, powers, rights,

         preferences or privileges, or the qualification, limitations or

         restrictions of the Series G Preferred Stock; or

 

                  (c) Increase the authorized number of shares of Series G

         Preferred Stock or other preferred stock of the Corporation; or

 

                  (d) Authorize, create, or issue any new class or series of

         stock or any other securities convertible into equity securities of the

         Corporation having a preference over the Series G Preferred Stock with

         respect to dividends, redemptions or upon liquidation or dissolution of

         the Corporation; or

 

                  (e) Reclassify the shares of Common Stock or any other G

         Junior Stock into shares of any class or series of capital stock (i)

         ranking either as to payment of dividends, distribution of assets or

         redemptions, prior to or on parity with the Series G Preferred Stock,

         or (ii) which in any manner adversely affects the holders of Series G

         Preferred Stock.

 

                  (f) Thirteen thousand six hundred thirty six (13,636) shares

         of the Corporation's preferred stock, par value $0.01 per share, are

         designated "Series H

 

 

                                       19

<PAGE>

 

 

         Preferred Stock" (hereinafter referred to as the "Series H Preferred

         Stock"), and such Series H Preferred Stock shall have the respective

         voting powers, designations, preferences and relative, participating,

         optional or other rights, and the qualifications, limitations or

         restrictions as follows:

 

         1. SECTION REFERENCES AND DEFINITIONS. References to section numbers

contained in this Article 4(e) shall refer only to sections within this

Article 4(e) unless otherwise specified. Capitalized terms in this Article

4(e) shall have the following meanings:

 

         1.1 "Change of Control" shall mean the following and shall be deemed

to occur if any of the following events occur:

 

                  (i) Any "person," as such term is used in Sections 13(d) and

         14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange

         Act") (a "Person"), is or becomes the "beneficial owner," as defined in

         Rule 13d-3 under the Exchange Act (a "Beneficial Owner"), directly or

         indirectly, of securities of the Corporation representing (i) 20% or

         more of the combined voting power of the Corporation's then outstanding

         voting securities, which acquisition is not approved in advance of the

         acquisition or within thirty (30) days after the acquisition by a

         majority of the Incumbent Board (as hereinafter defined) or (ii) 33% or

         more of the combined voting power of the Corporation's then outstanding

         voting securities, without regard to whether such acquisition is

         approved by the Incumbent Board;

 

                  (ii) Persons who constitute the board of directors (the

         "Incumbent Board") of the Corporation cease for any reason to

         constitute at least a majority of the Corporation's board of directors,

         provided that any person becoming a director whose election, or

         nomination for election by the Corporation's stockholders, is approved

         by a vote of at least a majority of the directors then constituting the

         Incumbent Board (other than an election or nomination of an individual

         whose initial assumption of office is in connection with an actual or

         threatened election contest relating to the election of the directors

         of the Corporation, as such terms are used in Rule 14a-11 of Regulation

         14A promulgated under the Exchange Act) shall, for the purposes of this

         Agreement, be considered as though such person were a member of the

         Incumbent Board of the Corporation;

 

                  (iii) The consummation of a merger, consolidation or

         reorganization involving the Corporation, other than one which

         satisfies both of the following conditions:

 

                           (A) a merger, consolidation or reorganization which

                  would result in the voting securities of the Corporation

                  outstanding immediately prior thereto continuing to represent

                  (either by remaining outstanding or by being converted into

                  voting securities of another entity) at least 55% of the

                  combined voting power of the voting securities of the

                  Corporation or such other entity resulting from the merger,

                  consolidation or reorganization (the "Surviving Corporation")

                  outstanding immediately after such merger, consolidation or

                  reorganization and being held in substantially the same

                  proportion as the ownership in the Corporation's voting

                  securities immediately before such merger, consolidation or

                  reorganization, and

 

 

                                       20

<PAGE>

 

 

                           (B) a merger, consolidation or reorganization in

                  which no Person is or becomes the Beneficial Owner, directly

                  or indirectly, of securities of the Corporation representing

                  20% or more of the combined voting power of the Corporation's

                  then outstanding voting securities; or

 

                  (iv) The stockholders of the Corporation approve a plan of

         complete liquidation of the Corporation or an agreement for the sale or

         other disposition by the Corporation of all or substantially all of the

         Corporation's assets.

 

         Notwithstanding the preceding provisions of this definition, a

Change in Control shall not be deemed to have occurred if the Person

described in the preceding provisions is (1) an underwriter or underwriting

syndicate that has acquired the ownership of any of the Corporation's then

outstanding voting securities solely in connection with a public offering of

the Corporation's securities, (2) the Corporation or an affiliate of the

Corporation, or (3) an employee stock ownership plan or other employee

benefit plan maintained by the Corporation or any of its affiliates that is

qualified under the provisions of the United States Internal Revenue Code of

1986.

 

         1.2 "Common Stock" shall mean the shares of the Common Stock of the

Corporation, par value $.01 per share, and any stock into which such Common

Stock may hereafter be changed. "Convertible Securities" shall mean evidences

of indebtedness, shares of stock or other securities which are convertible

into or exchangeable, with or without payment of additional consideration in

cash or property, for Common Stock, either immediately or upon the arrival of

a specified date or the happening of a specified event.

 

         1.3 "H Junior Stock" shall mean the Common Stock and any other class

or series of capital stock of the Corporation which at the time of issuance

is not declared to be senior to or on a parity with the Series H Preferred

Stock as to rights upon liquidation or dividends.

 

         1.4 "H Redemption Price" shall mean $1,100 per share plus any

dividends accrued on or before the date of the H Redemption Notice.

 

         1.5 "Person" shall mean any individual, corporation, association,

company, business trust, partnership, joint venture, joint-stock company,

trust, unincorporated organization or association or government or any agency

or political subdivision thereof.

 

         1.6 "Trading Day" shall mean any day on which trading takes place

(a) if the Common Stock is then listed or admitted to trading on a national

securities exchange, on the principal national securities exchange on which

the Common Stock is then listed or admitted to

 

                                       21

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trading; or (b) if not, in the over-the-counter-market and prices reflecting

such trading are published by the National Association of Securities Dealers

Automated Quotation System.

 

         2. DIVIDENDS. Before any dividends (other than dividends payable in

Common Stock) on any H Junior Stock shall be declared or paid or set apart

for payment, the holders of shares of Series H Preferred Stock shall be

entitled to receive cash dividends, when and as declared by the Board of

Directors from the date of issuance through September 15, 2005, at the annual

rate of $82.50 per share, and no more. Dividends on the Series H Preferred

Stock shall accumulate on an annual compounded basis (based on actual days

elapsed 365/366) and any accumulated dividends shall be payable to a holder

of record on the earlier of: (i) redemption by the Corporation of such

holder's Series H Preferred Stock or (ii) September 30, 2005. The Series H

Preferred Stock shall rank on a parity with the Series G Preferred Stock as

to dividends. Such dividends shall be cumulative. Whenever, at any time,

accrued dividend shall have been paid or declared and set apart for payment

on the then outstanding Series H Preferred Stock, the Board of Directors may

declare dividends on any H Junior Stock, subject to the respective terms and

provisions (if any) applying thereto.

 

         3. LIQUIDATION OR DISSOLUTION.

 

         3.1 RANK. The Series H Preferred Stock of the Corporation shall rank

on a parity with the Series F Preferred Stock and the Series G Preferred

Stock as to distributions upon a liquidation, dissolution or winding-up of

the Corporation and any other preferred stock of the Corporation.

 

         3.2 PREFERENCE. Subject to the prior rights of the Corporation's

creditors and holders of securities senior to the Series H Preferred Stock in

respect of distributions upon liquidation, dissolution or winding-up of the

Corporation, in the event of the voluntary or involuntary liquidation,

dissolution or winding-up of the Corporation, the holders of Series H

Preferred Stock shall be entitled to receive one thousand one hundred dollars

($1,100) per share, plus an amount equal to any accumulated dividends through

the date of such liquidation, dissolution or winding-up. The amount of

dividends "accumulated" on any share of Series H Preferred Stock as at any

annual dividend date shall be deemed to be the amount of any unpaid dividends

accumulated thereon to and including such annual dividend date, whether or

not earned or declared, and the amount of dividends "accumulated" on any

share of Series H Preferred Stock as at any date other than an annual

dividend date shall be calculated in accordance with Section 2 of this

Article 4(e). If, upon any such liquidation, dissolution or winding-up of the

Corporation, the assets distributable among the holders of Series H Preferred

Stock (and any series of preferred stock ranking in parity with the Series H

Preferred Stock in respect of distributions upon liquidation, dissolution or

winding-up of the Corporation) shall be insufficient to permit the payment in

full to such holders of the preferential amount payable to such holders

determined as aforesaid, then the holders of Series H Preferred Stock (and

any such series) will share ratably in any distribution of the Corporation's

assets in proportion to the respective preferential amounts that

 

                                       22

<PAGE>

 

 

would have been payable if such assets were sufficient to permit payment in

full of all such amounts. After payment of the full amount of the liquidating

distribution to which the holders of Series H Preferred Stock are entitled,

holders of H Junior Stock (other than Common Stock) shall be paid any

preferential amounts payable to such holders. Thereafter, the holders of

Series H Preferred Stock will share PRO RATA with the holders of Common Stock

(and the holders of H Junior Stock entitled to share PRO RATA with Common

Stock in liquidating distributions), based on the number of shares of Common

Stock into which the Series H Preferred Stock is then convertible, any

further distribution of assets by the Corporation. Under this Section 3, a

distribution of assets in any dissolution, winding-up or liquidation shall

not include (a) any consolidation or merger of the Corporation with or into

any other corporation, (b) any dissolution, liquidation or winding-up of the

Corporation immediately followed by reincorporation of a successor

corporation or (c) a sale or other disposition of all or substantially all of

the Corporation's assets in consideration for the issuance of equity

securities of another corporation, provided that the consolidation, merger,

dissolution, liquidation, winding-up, sale or other disposition (i) does not

amend, alter, or change the preferences or rights of the Series H Preferred

Stock or the qualifications, limitations or restrictions thereof in a manner

that adversely affects the Series H Preferred Stock or (ii) is done in

accordance with Sections 6.5, 6.6 or 6.7 hereof.

 

         4. VOTING RIGHTS. The holders of Series H Preferred Stock shall not

be entitled to any voting rights except as otherwise required by law.

 

         5. REDEMPTION.

 

                  (a) At the Corporation's option, from the date the Series H

         Preferred Stock is issued until all the Series H Preferred Stock is

         converted, all outstanding and unconverted Series H Preferred Stock may

         be redeemed by the Corporation pursuant to this Section 5(a), from

         funds legally available therefor at the H Redemption Price. The

         Corporation shall provide at least 10 days and not more than 30 days

         advance written notice of redemption to each holder of the Series H

         Preferred Stock (a "H Redemption Notice"), which notice shall set forth

         the date (the "Redemption Date") fixed for such redemption; provided

         that any H Redemption Notice given after September 15, 2005 shall be

         given at least 30 days and not more than 45 days in advance of the

         Redemption Date stated therein.

 

                  (b) The entire redemption price of the shares of Series H

         Preferred Stock outstanding shall be paid in cash on such Redemption

         Date. If any portion of the applicable H Redemption Price under Section

         6(a) shall not be paid by the Corporation within ten (10) calendar days

         after the date due, interest shall accrue thereon at the rate of 7.5%

         per annum until the redemption price plus all such interest is paid in

         full (which amount shall be paid as liquidated damages and not as a

         penalty).

 

         6. Conversion Rights.

 

                                       23

<PAGE>

 

 

         6.1 CONVERSION OF SERIES H PREFERRED STOCK. At the option of a

holder of the Series H Preferred Stock, each share of such holder's Series H

Preferred Stock shall convert into one hundred fully paid and non-assessable

shares of Common Stock:

 

                  6.1.1 Until the close of business on the date preceding the

         Redemption Date on or after September 15, 2005; or

 

                  6.1.2 Upon a Change of Control of the Corporation.

 

         6.2 ISSUANCE LIMITATION. If, pursuant to Section 5 of Article 4(c),

Section 6 of Article 4(d) or Section 6 of Article 4(e), a conversion event

occurs or a conversion election is made and conversion of shares of Series F

Preferred Stock, Series G Preferred Stock or Series H Preferred Stock (the

shares of the three series collectively, the "Preferred Shares") subject to

such section would, when taken together with the conversion of any other

Preferred Shares, result in the issuance by the Company of a number of shares

(the "Additional Shares") of its Common Stock greater than the "Issuance

Limit," then the Company need not issue the Additional Shares, unless it

first obtains shareholder approval of the issuance of the Additional Shares.

"Issuance Limit" means 9,389,477 shares of Common Stock (that is, 19.9% of

the shares of Common Stock issued and outstanding as of May 16, 2000), as

such number may be adjusted pursuant to Sections 5.5 of Article 4(c), Section

6.5 of Article 4(d) or Section 6.5 of Article 4(e). If the Company does not

obtain shareholder approval for the issuance of the Additional Shares or, in

any event, does not, prior to the expiration of 120 days after such

conversion event or conversion election, issue the Additional Shares required

to be issued as a result of such conversion event or conversion election, the

Company shall pay to each person entitled to receive such Additional Shares

an amount in cash equal to the aggregate market price of such Additional

Shares on the day that the conversion event occurred or the conversion

election was made. The market price for such day shall be the last reported

sales price on the principal exchange on which the Common Stock is listed,

or, if it is not so listed, the Nasdaq National Market or, if it is not so

listed, on the over-the-counter market.

 

         6.3 CONVERSION PROCEDURE. Upon conversion of Series H Preferred

Stock, the shares so converted shall have the status of authorized and

unissued preferred stock, and the number of shares of preferred stock which

the corporation shall have authority to issue shall include the number of

shares of Series H Preferred Stock so converted. Upon any conversion,

certificates representing the Series H Preferred Stock shall thereafter be

deemed to represent the appropriate number of shares of Common Stock into

which such stock is converted. After conversion the holder of any shares of

Series H Preferred Stock so converted shall deliver to the Corporation during

regular business hours, at such place as may be designated by the

Corporation, the certificate or certificates for the shares to be converted,

duly endorsed or assigned in blank, or to the Corporation (if required by

it), accompanied by written notice stating the name or names (with address)

in which the certificate or certificates for the shares of Common Stock are

to be issued.

 

                                       24

<PAGE>

 

 

         6.4 FRACTIONAL SHARES. No fractional shares of Common Stock or scrip

shall be issued upon conversion of shares of Series H Preferred Stock. If

more than one share of Series H Preferred Stock shall be surrendered for

conversion at any one time by the same holder, the number of full shares of

Common Stock issuable upon conversion thereof shall be computed on the basis

of the aggregate number of shares so surrendered. Instead of any fractional

shares of Common Stock which would otherwise be issuable upon any such

conversion, the Corporation shall pay a cash adjustment in respect of such

fractional interest in an amount determined on the basis of the then current

fair market value of a share of Common Stock as determined by the Board of

Directors of the Corporation, in good faith. Fractional interests shall not

be entitled to dividends, and the holders thereof shall not be entitled to

any rights as stockholders of the Corporation in respect of such fractional

interests.

 

         6.5 ADJUSTMENTS FOR SUBDIVISIONS, STOCK DIVIDENDS, COMBINATIONS, OR

CONSOLIDATIONS OF COMMON Stock. In the event the outstanding shares of Common

Stock shall be increased by way of stock issued as a dividend for no

consideration or subdivided (by stock split, or otherwise) into a greater

number of shares of Common Stock, the number of shares of Common Stock

issuable upon conversion of the Series H Preferred Stock then outstanding

shall, concurrently with the effectiveness of such increase or subdivision,

be proportionately increased and the number of shares constituting the

Issuance Limit shall be proportionally increased. In the event the

outstanding shares of Common Stock shall be combined or consolidated, by

reclassification or otherwise, into a lesser number of shares of Common

Stock, the number of shares of Common Stock issuable upon conversion of the

Series H Preferred Stock then outstanding shall, concurrently with the

effectiveness of such combination or consolidation, be proportionately

decreased and the number of shares constituting the Issuance Limit shall be

proportionally decreased.

 

         6.6 OTHER DISTRIBUTIONS. If for any reason, including without

limitation a merger or sale of assets transaction, the Corporation shall

declare a distribution payable in securities of the Corporation, or in

securities of other persons, evidences of indebtedness issued by the

Corporation or other persons, or assets (excluding cash dividends) then, in

each such case for the purpose of this Section 6.6, the holders of the Series

H Preferred Stock shall be entitled to a proportionate share of such

distribution as though they were the holders of the number of shares of

Common Stock of the Corporation into which their shares of Series H Preferred

Stock would be convertible as of the record date fixed for the determination

of the holders of Common Stock of the Corporation entitled to receive such

distribution.

 

         6.7 REORGANIZATIONS AND RECAPITALIZATIONS. If at any time or from

time to time there shall be a reorganization or recapitalization of the

Common Stock (other than a subdivision, combination or merger or sale of

assets transaction provided for in Section 6.5 or Section 6.6 above), then,

as a condition of such reorganization or recapitalization, provision shall be

made so that the holders of the Series H Preferred Stock shall thereafter be

entitled to receive upon conversion of the Series H Preferred Stock, the

number of shares of stock or other securities or property of the Corporation

or otherwise to which a holder of Common Stock deliverable upon

 

                                       25

<PAGE>

 

 

conversion would have been entitled on such reorganization or

recapitalization. In any such case, appropriate adjustment shall be made in

the application of the provisions of this Section 6 with respect to the

rights of the holders of the Series H Preferred Stock after the

reorganization or recapitalization to the end that the provisions of this

Section 6 (including adjustment to the number of shares of Common Stock

receivable upon conversion of the Series H Preferred Stock) shall be

applicable after that event in as nearly an equivalent manner as may be

practicable.

 

         6.8 RESERVATION OF SHARES. The Corporation agrees that, so long as

any share of Series H Preferred Stock shall remain outstanding, the

Corporation shall at all times reserve and keep available, free from

preemptive rights, out of its authorized capital stock, for the purpose of

issue upon conversion of the Series H Preferred Stock, the full number of

shares of Common Stock then issuable upon conversion of all outstanding

shares of Series H Preferred Stock. If the Common Stock shall be listed on

any national securities exchange, the Corporation at its expense shall

include in a listing application all of the shares of Common Stock reserved

for issuance upon conversion of the Series H Preferred Stock, (subject to

issuance or notice of issuance to the exchange) and will similarly apply for

and use its best efforts to procure the listing of any further Common Stock

reserved for issuance upon conversion of the Series H Preferred Stock, at any

subsequent time as a result of adjustments in the number of shares of Common

Stock issuable upon conversion of the Series H Preferred Stock.

 

         6.9 VALIDITY OF SHARES. The Corporation agrees that it will from

time to time take all such actions as may be requisite to assure that all

shares of Common Stock which may be issued upon conversion of any share of

the Series H Preferred Stock will, upon issuance, be legally and validly

issued, fully paid and non-assessable and free from all taxes, liens and

charges with respect to the issue thereof.

 

         6.10 TAXES. The Corporation will pay all taxes and other

governmental charges that may be imposed in respect of the issue or delivery

(but not transfer) of shares of Common Stock upon conversion of the Series H

Preferred Stock.

 

         6.11 ABANDONMENT OF ACTION. If the Corporation shall take a record

of the holders of its Common Stock for the purpose of entitling them to

receive a dividend or distribution requiring an adjustment pursuant to

Section 6 and shall, thereafter and before the distribution to stockholders

thereof, legally abandon its plan to pay or deliver such dividend or

distribution, then thereafter no adjustment to the holders of Series H

Preferred Stock shall be required by reason of the taking of such record and

any such adjustment previously made in respect thereof shall be rescinded and

annulled.

 

         6.12     NOTICE PROVISIONS.

 

                                       26

<PAGE>

 

 

                  6.12.1 Whenever an adjustment is required pursuant to

Section 6 hereof, the Corporation shall forthwith deliver to the holders of

Series H Preferred Stock, a certificate signed by an officer of the

Corporation, setting forth, in reasonable detail, the event requiring the

adjustment, the method by which such adjustment was calculated and the

adjustments made.

 

                  6.12.2 In case the Corporation shall propose (a) to pay any

dividend payable in stock of any class to the holders of H Junior Stock or to

make any other distribution to the holders of its Common Stock, (b) to offer

to the holders of its Common Stock rights to subscribe for or to purchase any

Convertible Securities, Common Stock or shares of stock of any class or any

other securities, rights or options, (c) to effect any reclassification of

its Common Stock (other than a reclassification involving only the

subdivision or combination of outstanding shares of Common Stock), (d) to

effect any capital reorganization, (e) to effect any consolidation, merger or

sale, transfer or other distribution of all or substantially all its

property, assets or business, or (f) to effect the liquidation, dissolution

or winding-up of the Corporation, then, in each such case, the Corporation

shall give to each holder of Series H Preferred Stock a notice of such

proposed action, which shall specify the date on which a record is to be

taken for the purposes of such stock dividend, distribution or rights, or the

date on which such reclassification, reorganization, consolidation, merger,

sale, transfer, disposition, liquidation, dissolution or winding-up is to

take place and the date of participation therein by the holders of Common

Stock, if any such date is to be fixed, and shall also set forth such facts

with respect thereto as shall be reasonably necessary to indicate the effect

of such action on the Common Stock and number shares of Common Stock issuable

upon conversion of the Series H Preferred Stock after giving effect to any

adjustment which will be required as a result of such action. Such notice

shall be so given in the case of any action covered by (a) or (b) above at

least ten (10) days prior to the record date for determining holders of the

Common Stock for purposes of such action and, in the case of any other such

action, at least ten (10) days prior to the date of the taking of such

proposed action or the date of participation therein by the holders of Common

Stock, whichever shall be the earlier.

 

         7. NO PRE-EMPTIVE RIGHTS. No holder of Series H Preferred Stock

shall have any pre-emptive or preferential right of subscription to any

shares of stock of the Corporation, or to options, warrants or other

interests therein or therefor, or to any obligations convertible into stock

of the Corporation, issued or sold, or any right of subscription to any

thereof other than such, if any, as the Board of Directors, in its

discretion, from time to time may determine and at such price or prices as

the Board of Directors from time to time may fix pursuant to the authority

conferred by the Corporation's Certificate of Incorporation.

 

         8. COVENANTS. In addition to any other rights provided by law, so long

as any shares of Series H Preferred Stock are outstanding, this Corporation

shall not, without first obtaining the affirmative vote or written consent of

the holders of not less than sixty-six and two-thirds percent (66-2/3%) of the

Series H Preferred Stock:

 

 

                                       27

<PAGE>

 

 

                  (a) Amend or repeal any provisions of the Corporation's

         Certificate of Incorporation which action would adversely affect the

         rights, preferences, or privileges of the Series H Preferred Stock; or

 

                  (b) Alter or change the designations, powers, rights,

         preferences or privileges, or the qualification, limitations or

         restrictions of the Series H Preferred Stock; or

 

                  (c) Increase the authorized number of shares of Series H

         Preferred Stock or other preferred stock of the Corporation; or

 

                  (d) Authorize, create, or issue any new class or series of

         stock or any other securities convertible into equity securities of the

         Corporation having a preference over the Series H Preferred Stock with

         respect to dividends, redemptions or upon liquidation or dissolution of

         the Corporation; or

 

                  (e) Reclassify the shares of Common Stock or any other H

         Junior Stock into shares of any class or series of capital stock (i)

         ranking either as to payment of dividends, distribution of assets or

         redemptions, prior to or on parity with the Series H Preferred Stock,

         or (ii) which in any manner adversely affects the holders of Series H

         Preferred Stock.

 

         5. No shareholder of the Corporation shall have preemptive or

preferential rights to any shares of any class of stock of the Corporation or

obligations convertible into stock of the Corporation whether now or

hereafter authorized.

 

         6. The Secretary of State is designated as the agent of the

Corporation upon whom process against the Corporation may be served. The post

office address within the State of New York to which the Secretary of State

shall mail a copy of any such process against the Corporation served upon is

c/o Harvey Brown, Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York,

New York 10038-4982.

 

                                       28

 

<PAGE>

 

         7. The manner in which the foregoing amendment of the Restated

Certificate of Incorporation was authorized is as follows: The Board of

Directors of the Corporation adopted the amendment and authorized the

restatement of the Certificate of Incorporation by a majority vote of the

Board of Directors. The holders of a majority of the outstanding shares

entitled to vote adopted the amendment increasing the amount of the

authorized shares of common stock of the Corporation at the annual meeting of

shareholders on November 8, 2000.

 

                                       29

<PAGE>

 

 

 

         IN WITNESS WHEREOF, we have subscribed this document on the date set

forth below and do hereby affirm, under the penalties of perjury, that the

statements contained therein have been examined by us and are true and correct.

 

Date: May 1, 2001

 

 

                                       /s/ Theodore D. Roth

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

                                       Name:    Theodore D. Roth

                                       Title:   President and Chief Operating

                                                Officer

 

                                       /s/ Lloyd A. Rowland

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

                                       Name:    Lloyd A. Rowland

                                       Title:   General Counsel and Secretary

 

 

 

 

                                       30

</TEXT>

</DOCUMENT>