AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

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                                       OF

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                                APTARGROUP, INC.

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                                   ARTICLE ONE

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                 The name of the Corporation is AptarGroup, Inc.

 

 

                                   ARTICLE TWO

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                  The address of the Corporation's registered office in the

State of Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover,

County of Kent, 19901. The name of its registered agent at such address is the

Prentice-Hall Corporation System, Inc.

 

 

                                 ARTICLE THREE

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                  The nature of the business or purposes to be conducted or

promoted is to engage in any lawful act or activity for which corporations may

be organized under the General Corporation Law of the State of Delaware.

 

 

                                 ARTICLE FOUR

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                  4.1 Capital Stock. The total number of shares of stock which

the Corporation has authority to issue is 100,000,000 shares, consisting of

1,000,000 shares of Preferred Stock, par value $.01 per share, and 99,000,000

shares of Common Stock, par value $.01 per share. The number of authorized

shares of Preferred Stock may not be decreased unless such decrease is approved

by the affirmative vote of the holders of not less than eighty percent (80%) of

the outstanding Common Stock. Any such decrease may be effected without a vote

of the holders of the Preferred Stock, or of any series thereof, unless a vote

of any such holders is required pursuant to the certificate or certificates

establishing the series of Preferred Stock. In no event may the number of

authorized shares of Preferred Stock be decreased below the number of shares

thereof then outstanding. Any issuance of capital stock of the Corporation

(other than an issuance pursuant to any plan which has received stockholder

approval, any issuance pursuant to the Rights Agreement dated as of April 6,

1993 by and between AptarGroup, Inc. and Chemical Bank, as amended from time to

time in accordance with its terms, or any issuance in connection with an

acquisition of at least a majority of another corporation, partnership or other

entity) must be approved by a resolution adopted by directors constituting not

less than seventy percent (70%) of the whole Board of Directors.

 

 

                                      -3-

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                  4.2 Preferred Stock. The Board of Directors of the Corporation

may, by a resolution adopted by directors constituting not less than seventy

percent (70%) of the whole Board of Directors and subject to the limitations

prescribed by law and the provisions of this Certificate of Incorporation,

provide for the issuance of shares of the Preferred Stock or provide for the

issuance of shares of the Preferred Stock in one or more series, establish from

time to time the number of shares to be included in each such series and fix the

designations, voting powers, preferences, rights and qualifications, limitations

or restrictions of the shares of the Preferred Stock of each such series. The

provisions set forth in this Section 4.2 may not be amended, altered, changed or

repealed in any respect unless such action is approved by the affirmative vote

of the holders of not less than eighty percent (80%) of the outstanding shares

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

of Common Stock shall be entitled to vote.

 

 

                  4.3 Common Stock. Except as otherwise provided by the General

Corporation Law of the State of Delaware, by this Certificate of Incorporation

or any amendments hereto and subject to the rights of holders of Preferred

Stock, all of the voting power of the stockholders of the Corporation shall be

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

have one (1) vote for each share of Common Stock held by such holder on all

matters voted upon by the stockholders.

 

 

                  4.4 Definition. For purposes of this Article Fourth, "whole

Board of Directors" means the total number of directors which the Corporation

would have on the Board of Directors if there were no vacancies.

 

 

                                 ARTICLE FIVE

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                  In furtherance and not in limitation of the powers conferred

by statute, the Board of Directors of the Corporation is expressly authorized to

adopt, amend or repeal the By-Laws of the Corporation. Any adoption, amendment

or repeal of the By-Laws of the Corporation by the Board of Directors shall

require the approval of directors constituting not less than seventy percent

(70%) of the whole Board of Directors. The stockholders shall also have power to

adopt, amend or repeal the By-Laws of the Corporation; provided, however, that,

in addition to any vote of the holders of any class or series of stock of the

Corporation required by law or by this Certificate of Incorporation, the

affirmative vote of the holders of not less than eighty percent (80%) of the

outstanding shares of Common Stock entitled to vote on each matter on which the

holders of record of Common Stock shall be entitled to vote shall be required in

order for the stockholders to adopt, amend or repeal any provision of the

By-Laws of the Corporation. For purposes of this Article Five, "whole Board of

Directors" means the total number of directors which the Corporation would have

on the Board of Directors, if there were no vacancies. The provisions set forth

in this Article Five may not be amended, altered, changed or repealed in any

respect unless such action is approved by the affirmative vote of the holders of

not less than eighty percent (80%) of the outstanding shares of Common Stock

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

shall be entitled to vote.

 

 

                                      -4-

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                                  ARTICLE SIX

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                  Meetings of stockholders may be held within or without the

State of Delaware, as the By-Laws of the Corporation may provide. The books of

the Corporation may be kept outside the State of Delaware at such place or

places as may be designated from time to time by the Board of Directors or in

the By-Laws of the Corporation. All elections of directors shall be by written

ballot.

 

                                 ARTICLE SEVEN

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                  7.1 Number of Directors. Subject to any rights of the holders

of the Preferred Stock or any series thereof to elect additional directors under

specified circumstances, the number of directors which shall constitute the

whole Board of Directors of the Corporation shall be such number as shall from

time to time be fixed by resolution adopted by directors constituting not less

than seventy (70%) of the whole Board of Directors. The Board is divided into

three classes, as nearly equal in number as possible, with the term of the

office of the first class to expire at the 1994 annual meeting of stockholders,

the term of office of the second class to expire at the 1995 annual meeting of

stockholders and the term of office of the third class to expire at the 1996

annual meeting of stockholders. At each annual meeting of stockholders beginning

with the 1994 annual meeting of stockholders, directors elected to succeed those

directors whose terms expire shall be elected for a term of office to expire at

the third succeeding annual meeting of stockholders after their election. The

foregoing notwithstanding, each director shall serve until his successor shall

have duly elected and qualified, unless he shall resign, die, become

disqualified or be removed.

 

 

                  7.2 Vacancies and Newly Created Directorships. Subject to any

rights of the holders of the Preferred Stock or any series thereof to fill such

newly created directorships or vacancies, any newly created directorships

resulting from any increase in the authorized number of directors and any

vacancies in the Board of Directors resulting from death, resignation,

disqualification, removal or other cause shall, unless otherwise provided by law

or by a resolution approved by directors constituting not less than seventy

percent (70%) of the whole Board of Directors, be filled only by a resolution

approved by directors constituting not less than seventy percent (70%) of the

whole Board of Directors, and any directors so chosen shall hold office until

the next election of the classes for which such director shall have been chosen,

and until his successor shall have been duly elected and qualified, unless he

shall resign, die, become disqualified or be removed. Notwithstanding the

foregoing, in the event that at the time of the existence of an unfilled newly

created directorship or vacancy there are unfilled newly created directorships

and/or vacancies constituting more than thirty percent (30%) of the whole Board

of Directors, a majority of the directors then serving on the Board of Directors

shall have the authority to fill enough of such unfilled newly created

directorships and/or vacancies so that, after giving effect thereto, there will

be the minimum number of directors serving on the Board of Directors necessary

to constitute seventy percent (70%) of the whole Board of Directors.

 

 

                                      -5-

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                  7.3 Powers, Qualifications and Removal. The business of the

Corporation shall be managed by or under the direction of the Board of

Directors. Any director may tender his resignation at any time. Subject to any

rights of the holders of the Preferred Stock or any series thereof, any director

or the entire Board of Directors may be removed at any time, but only for cause.

 

                  7.4 Definition. For purposes of this Article Seven, "whole

Board of Directors" means the total number of directors which the Corporation

would have on the Board of Directors if there were no vacancies.

 

                  7.5 Amendment. The provisions set forth in this Article Seven

may not be amended, altered, changed or repealed in any respect unless such

action is approved by the affirmative vote of the holders of not less than

eighty percent (80%) of the outstanding shares of Common Stock entitled to vote

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

to vote.

 

                                 ARTICLE EIGHT

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                  8.1 Special  Meetings of  Stockholders.  Special meeting of

stockholders

 

of the Corporation  may be called only by the Board of Directors  pursuant to a

resolution approved by a majority of the whole Board of Directors.

 

                  8.2 No  Stockholder  Action by Consent.  No action  required

to be taken or which may be taken at any annual or special  meeting of

stockholders of the Corporation may be taken without a meeting.

 

                  8.3 Advance Notice of Stockholder Nominations. Advance notice

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

the Corporation and of business to be brought before any meeting of the

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

provided in the By-Laws of the Corporation.

 

 

                                      -6-

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                  8.4 Definition. For purposes of this Article Eight, "whole

Board of Directors" means the total number of directors which the Corporation

would have on the Board of Directors if there were no vacancies.

 

                  8.5 Amendment. The provisions set forth in this Article Eight

may not be amended, altered, changed or repealed in any respect unless such

action is approved by the affirmative vote of the holders of not less than

eighty percent (80%) of the outstanding shares of Common Stock entitled to vote

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

vote.

 

 

                                 ARTICLE NINE

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                  To the fullest extent permitted by the General Corporation Law

of the State of Delaware as the same exists or may hereafter be amended, a

director of the Corporation shall not be liable to the Corporation or its

stockholders for monetary damages for a breach of fiduciary duty as a director.

Any repeal or modification of this Article Nine shall not adversely affect any

right or protection of a director of the Corporation existing at the time of

such repeal or modification. The provisions set forth in this Article Nine may

not be amended, altered, changed or repealed in any respect unless such action

is approved by the affirmative vote of the holders of not less than eighty

percent (80%) of the outstanding shares of Common Stock entitled to vote on each

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

 

 

                                  ARTICLE TEN

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                  The Corporation elects not to be governed by Section 203 of

the General Corporation Law of the State of Delaware.

 

 

                                ARTICLE ELEVEN

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                  11.1 Business Combinations with Interested Stockholders. The

Corporation shall not engage in any business combination with any interested

stockholder for a period of 3 years following the date that such stockholder

became an interested stockholder, unless (A) prior to such date a majority of

the whole Board of Directors approved either the business combination or the

transaction which resulted in the stockholder becoming an interested

stockholder, or (B) upon consummation of the transaction which resulted in the

stockholder becoming an interested stockholder, the interested stockholder owned

at least 85% of the voting stock of the Corporation outstanding at the time the

transaction commenced, excluding for purposes of determining the number of

shares outstanding those shares owned (i) by persons who are directors and also

officers of the Corporation and (ii) by employee stock plans of the Corporation

or its subsidiaries in which employee participants do not have the right to

determine confidentially whether shares of stock of the Corporation held subject

to the plan will be tendered in a tender or exchange offer, or (C) on or

subsequent to such date the business combination is approved by a majority of

the whole Board of Directors and authorized at an annual or special meeting of

stockholders, and not by written consent, by affirmative vote of at least 66

2/3% of the outstanding voting stock of the Corporation which is not owned by

the interested stockholder.

 

 

                                      -7-

<PAGE>

 

 

                  11.2 Exclusions. The restrictions contained in this Article

Eleven shall not apply if:

 

            (A) a stockholder becomes an interested stockholder inadvertently

and (i) as soon as practicable divests sufficient shares so that the stockholder

ceases to be an interested stockholder and (ii) would not, at any time within

the 3-year period immediately prior to a business combination between the

Corporation and such stockholder, have been an interested stockholder but for

the inadvertent acquisition; or

 

            (B) the business combination is proposed prior to the consummation

or abandonment of and subsequent to the earlier of the public announcement or

the notice required hereunder of a proposed transaction which (i) constitutes

one of the transactions described in the second sentence of this subsection (B);

(ii) is with or by a person who either was not an interested stockholder during

the previous 3 years or who became an interested stockholder with the prior

approval of a majority of the Corporation's whole Board of Directors; and (iii)

is approved or not opposed by a majority of the members of the Board of

Directors then in office (but not less than 1) who were directors prior to any

person becoming an interested stockholder during the previous 3 years or were

recommended for election or elected to succeed such directors by a majority of

such directors. The proposed transactions referred to in the preceding sentence

are limited to (x) a merger or consolidation of the Corporation (except for a

merger in respect of which, pursuant to Section 251 (f) of the General

Corporation Law of the State of Delaware or any successor provision, no vote of

the stockholders of the Corporation is required); (y) a sale, lease, exchange,

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

of transactions), whether as part of a dissolution or otherwise, of assets of

the Corporation or of any direct of indirect or indirect majority-owned

subsidiary of the Corporation (other than to any direct or indirect wholly-owned

subsidiary or to the Corporation) having an aggregate market value equal to 50%

or more of either the aggregate market value of all of the assets of the

Corporation determined on a consolidated basis or the aggregate market value of

all the outstanding stock of the Corporation; and (z) a proposed tender or

exchange offer for 50% or more of the outstanding voting stock of the

Corporation. The Corporation shall give not less than 20 days' notice to all

stockholders known to it to be interested stockholders prior to the consummation

of any of the transactions described in clause (x) or (y) of the second sentence

of this subsection (B).

 

                  11.3  Definitions.  As used in this Article Eleven only,

the term:

 

 

                                      -8-

<PAGE>

 

 

            (A) "affiliate" means a person that directly, or indirectly through

one or more intermediaries, controls, or is controlled by, or is under common

control with, another person; provided that, for purposes of this Article

Eleven, the term "affiliate" shall not include any person that is an exempt

person.

 

            (B) "associate," when used to indicate a relationship with any

person, means (i) any corporation or organization of which such person is a

director, officer or partner or is, directly or indirectly, the owner of 20% or

more of any class of voting stock, (ii) any trust or other estate in which such

person has at least a 20% beneficial interest or as to which such person serves

as trustee or in a similar fiduciary capacity, and (iii) any relative or spouse

of such person, or any relative of such spouse, who has the residence as such

person; provided that, for purposes of this Article Eleven, the term "associate"

shall not include any person that is an exempt person.

 

            (C) "business combination," when used in reference to the

Corporation and any interested stockholder of the Corporation, means:

 

                  (i) any merger or consolidation of the Corporation or any

            direct or indirect majority-owned subsidiary of the Corporation with

            (1) the interested stockholder or (2) any other person if the merger

            or consolidation is caused by the interested stockholder and as a

            result of such merger or consolidation Section 11.1 of this Article

            Eleven is not applicable to the surviving person;

 

                  (ii) any sale, lease, exchange, mortgage, pledge, transfer or

            other disposition (in one transaction or a series of transactions),

            except proportionately as a stockholder of the Corporation, to or

            with the interested stockholder, whether as part of a dissolution or

            otherwise, of assets of the Corporation or of any direct or indirect

            majority-owned subsidiary of the Corporation which assets have an

            aggregate market value equal to 10% or more of either the aggregate

            market value of all assets of the Corporation determined on a

            consolidated basis or the aggregate market value of all the

            outstanding stock of the Corporation;

 

                  (iii) any transaction which results in the issuance or

            transfer by the Corporation or by any direct or indirect

            majority-owned subsidiary of the Corporation of any stock of the

            Corporation or of such subsidiary to the interested stockholder,

            except (1) pursuant to the exercise, exchange or conversion of

            securities exercisable for, exchangeable for or convertible into

            stock of the Corporation or any such subsidiary which securities

            were outstanding prior to the time that the interested stockholder

            became such, (2) pursuant to a dividend or distribution paid or

            made, or the exercise, exchange or conversion of any security

            exercisable for, exchangeable for or convertible into stock of the

            Corporation or any such subsidiary which security is distributed,

            pro rata to all holders of a class or series of stock of the

            Corporation subsequent to the time the interested stockholder became

            such, (3) pursuant to an exchange offer by the Corporation to

            purchase stock made on the same terms to all holders of said stock,

            or (4) any issuance or transfer of stock by the Corporation,

            provided however, that in no case under (2) - (4) above shall there

            be an increase in the interested stockholder's proportionate share

            of the stock of any class or series of the Corporation or of the

            voting stock of the Corporation;

 

 

                                      -9-

<PAGE>

 

 

                  (iv) any transaction involving the Corporation or any direct

            or indirect majority-owned subsidiary of the Corporation which has

            the effect, directly or indirectly, of increasing the proportionate

            share of the stock of any class or series, or of securities

            exercisable for, exchangeable for or convertible into the stock of

            any class or series, of the Corporation or of any such subsidiary

            which is owned by the interested stockholder, except as a result of

            immaterial changes due to fractional share adjustments or as a

            result of any purchase or redemption of any shares of stock not

            caused, directly or indirectly, by the interested stockholder; or

 

                  (v) any receipt by the interested stockholder of the benefit,

            directly or indirectly (except proportionately as a stockholder of

            the Corporation) of any loans, advances, guarantees, pledges, or

            other financial benefits (other than those expressly permitted in

            subsection (i) - (iv) above) provided by or through the Corporation

            or any direct or indirect majority owned subsidiary.

 

            (D) "control," including the terms "controlling," "controlled by"

and "under common control with," means the possession, directly or indirectly,

of the power to direct or cause the direction of the management and policies of

a person, whether through the ownership of voting stock, by contract, or

otherwise. A person who is the owner of 20% or more of a corporation's

outstanding voting stock shall be presumed to have control of such corporation,

in the absence of proof by a preponderance of the evidence to the contrary.

Notwithstanding the foregoing, a presumption of control shall not apply where

such person holds voting stock, in good faith and not for the purpose of

circumventing this Article Eleven, as an agent, bank, broker, nominee, custodian

or trustee for one or more owners who do not individually or as a group have

control of the Corporation.

 

            (E) "exempt person" means (i) any person that at the time of

determination is the Harris Group, a member thereof or a person or which the

Harris Group or one or more members thereof owns (a) more than fifty percent

(50%) of the voting stock or other voting interests and (b) stock or other

interests representing more than fifty percent (50%) of the total value of the

stock or other interests of such person, (ii) any person that at the time of

determination is the Pfeiffer Group, a member thereof or a person of which the

Pfeiffer Group or one or more members thereof owns (a) more than fifty percent

(50% ) of the voting stock or other voting interests and (b) stock or other

interests representing more than fifty percent (50%) of the total value of the

stock or other interests of such person and (iii) any person whose ownership of

shares in excess of the 15% limitation set forth in the definition of

"interested stockholder" is the result of action taken solely by the Corporation

provided that such person shall cease to be an exempt person if thereafter he

acquires additional shares of voting stock of the Corporation except as a result

of further action by the Corporation not caused, directly or indirectly, by such

person. Notwithstanding the foregoing sentence, none of the persons described in

clause (i) above shall continue to be an exempt person by virtue of such clause

after the earliest date after the Pfeiffer Share Exchange on which such persons

are owners in the aggregate of less than 3% of the Corporation's outstanding

voting stock (determined without taking into account any securities exercisable

or exchangeable for, or convertible into, the Corporation's voting stock, other

than any such securities owned by such persons), and none of the persons

described in clause (ii) above shall continue to be an exempt person by virtue

of such clause after the earliest date after the Pfeiffer Share Exchange on

which such persons are owners in the aggregate of less than 3% of the

Corporation's outstanding voting stock (determined without taking into account

any securities exercisable or exchangeable for, or convertible into, the

Corporation's voting stock, other than any such securities owned by such

persons).

 

 

 

                                      -10-

<PAGE>

 

 

            (F) "Harris Group" means Messrs. Irving B. Harris, Neison Harris,

King Harris, William W. Harris and Sidney Barrows and their respective spouses,

descendants and spouses of descendants, trustees of trusts established for the

benefit of such persons (acting in their capacity as trustees of such trusts),

and executors of estates of such persons (acting in their capacity as executors

of such estates).

 

            (G) "interested stockholder" means any person (other than an exempt

person and other than the Corporation and any direct or indirect majority-owned

subsidiary of the Corporation) that (i) is the owner of 15% or more of the

outstanding voting stock of the Corporation, or (ii) is an affiliate or

associate of the Corporation and was the owner of 15% or more of the outstanding

voting stock of the Corporation at any time within the three-year period

immediately prior to the date on which it is sought to be determined whether

such person is an interested stockholder; and the affiliates and associates of

such person. For the purpose of determining whether a person is an interested

stockholder, the voting stock of the Corporation deemed to be outstanding shall

include stock deemed to be owned by the person through application of subsection

(H) of this Section 11.3 but shall not include any other unissued stock of the

Corporation which may be issuable pursuant to any agreement, arrangement or

understanding, or upon exercise of conversion rights, warrants or options, or

otherwise.

 

            (H) "owners" including the terms "own" and "owned," when used with

respect to any stock means a person that individually or with or through any of

its affiliates or associates:

 

                  (i) beneficially owns (as determined pursuant to Rule 13d-3 of

            the General Rules and Regulations under the Securities Exchange Act

            of 1934 or any successor provision) such stock, directly or

            indirectly; or

 

                  (ii) has (1) the right to acquire such stock (whether such

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

            pursuant to any agreement, arrangement or understanding, or upon the

            exercise of exercise rights, conversion rights, exchange rights,

            warrants or options, or otherwise; provided, however, that a person

            shall not be deemed the owner of stock tendered pursuant to a tender

            or exchange offer made by such person or any of such person's

            affiliates or associates until such tendered stock is accepted for

            purchase or exchange; or (2) the right to vote such stock pursuant

            to any agreement, arrangement or understanding; provided, however,

            that a person shall not be deemed the owner of any stock because of

            such person's right to vote such stock if the agreement, arrangement

            or understanding to vote such stock arises solely from a revocable

            proxy or consent given in response to a proxy or consent

            solicitation made to 10 or more persons; or

 

 

                                      -11-

<PAGE>

 

 

                  (iii) has any agreement, arrangement or understanding for the

            purpose of acquiring, holding, voting (except voting pursuant to a

            revocable proxy or consent as described in item (2) of clause (ii)

            of this subsection), or disposing of such stock with any other

            person that beneficially owns, or whose affiliates or associates

            beneficially own, directly or indirectly, such stock.

 

Nothing in this subsection (H) shall cause a person to be treated as the "owner"

of, or to "own," any securities owned by any other person that is an exempt

person.

 

            (I) "person" means any individual, corporation, partnership,

unincorporated association, trust or other entity.

 

            (J) "Pfeiffer Group" means Peter Pfeiffer, Philipp Pfeiffer, Anne

Pfeiffer, Klaus Pfeiffer, Birgit Pfeiffer, Petra Pfeiffer, Karin Pilz, Norbert

Pilz, Gunther Pilz, Elke Miedler, Gudrun Miedler, Iris Miedler and Stefan

Miedler and their respective spouses, descendants and spouses of descendants,

trustees of trusts established for the benefit of such persons (acting in their

capacity as trustees of such trusts), and executors of estates of such persons

(acting in their capacity as executors of such estates).

 

            (K) "Pfeiffer Share Exchange" has the meaning assigned to such term

in the Combination Agreement dated as of December 31, 1992 to which the

Corporation and certain members of the Pfeiffer Group are parties.

 

            (L) "spouses" includes widows and widowers until first remarried.

 

            (M) "voting stock" means stock of any class or series entitled to

vote generally in the election of directors.

 

 

                                      -12-

<PAGE>

 

 

 

            (N) "whole Board of Directors" means the total number of directors

which the Corporation would have on the Board of Directors if there were no

vacancies.

 

            11.4 Amendment. The provisions set forth in this Article Eleven may

not be amended, altered, changed or repealed in any respect unless such action

is approved by the affirmative vote of at least 66-2/3% of the outstanding

shares of Common Stock entitled to vote on each matter on which the holders of

record of Common Stock shall be entitled to vote which are not owned by an

interested stockholder.

 

                                ARTICLE TWELVE

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            In the event that it is proposed that the Corporation enter into a

merger or consolidation with any other corporation (other than a direct or

indirect wholly-owned subsidiary of the Corporation), or sell or otherwise

dispose of all or substantially all of its assets or business in one transaction

or a series of transactions, or liquidate or dissolve, the affirmative vote of

the holders of not less than eighty percent (80%) of the outstanding shares of

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

Common Stock shall be entitled to vote shall be required for the approval of

such proposal; provided, however, that the foregoing shall not apply to any such

merger, consolidation, sale, disposition, liquidation or dissolution which is

approved by resolution of two-thirds of the whole Board of Directors, if the

majority of the members of the Board of Directors adopting such resolution were

members of the Board of Directors of the Corporation prior to the public

announcement of the proposed merger, consolidation, sale, disposition,

dissolution or liquidation and prior to the public announcement of any

transaction relating to such merger, consolidation, sale, disposition,

dissolution or liquidation. If such approval is granted, then such transaction

shall only require the approval otherwise required under the other Articles of

this Certificate of Incorporation and under law. For purposes of this Article

Twelve, "whole Board of Directors" means the total number of directors which the

Corporation would have on the Board of Directors if there were no vacancies. The

provisions set forth in this Article Twelve may not be amended, altered, changed

or repealed in any respect unless such action is approved by the affirmative

vote of the holders of not less than eighty percent (80%) of the outstanding

shares of Common Stock entitled to vote on each matter on which the holders of

record of Common Stock shall be entitled to vote.

 

                               ARTICLE THIRTEEN

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

 

 

            13.1 Indemnification of Officers, Directors and Others. The

Corporation shall indemnify any person who was or is a party or is threatened to

be made a party to any threatened, pending or completed action, suit or

proceeding, whether civil, criminal, administrative or investigative (including

any action by or in the right of the Corporation) (a "Proceeding") by reason of

the fact that he is or was a director, officer or employee of the Corporation,

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

employee of another corporation, partnership, joint venture, trust or other

enterprise (including service with respect to any employee benefit plan) against

expenses (including attorneys' fees), judgments, fines, ERISA excise taxes,

penalties and amounts paid in settlement actually and reasonably incurred by him

in connection with such Proceeding to the fullest extent permitted by the

Delaware General Corporation Law, as the same exists or may hereafter be amended

(but, in the case of any such amendment, only to the extent that such amendment

permits the Corporation to provide broader indemnification rights than such law

permitted the Corporation to provide prior to such amendment). The

indemnification provided by this Article Thirteen shall not be deemed exclusive

of any other rights to which any person may be entitled under any By-Law,

agreement, vote of stockholders or disinterested directors, or otherwise, both

as to action in his official capacity and as to action in another capacity, and

shall continue as to a person who has ceased to be a director, officer or

employee and shall inure to the benefit of the heirs, executors, administrators

and personal representatives of such a person. It is expressly understood that,

notwithstanding the foregoing, no director, officer or employee shall have any

rights under this Article Thirteen if the Proceeding giving rise to the claim

for indemnification hereunder arises as a result of actions or failures to act

in any capacity other than those set forth in this Section 13.1, and, as such,

no such person shall have any rights under this Article Thirteen if the

Proceeding giving rise to the claim for indemnification arises as a result of

such person's purchase and/or sale of securities of the Corporation (other than

on behalf of the Corporation).

 

 

                                      -13-

<PAGE>

 

 

            13.2 Procedure for Indemnification of Directors, Officers and

Employees. Any indemnification of a director, officer or employee of the

Corporation or advance of expenses under this Article Thirteen shall be made

promptly upon the written request of the director, officer or employee, and in

any event within 30 days after such request (or, if a determination as described

below is required, within 30 days after such determination has been made or

deemed made). If a determination by the Corporation that the director, officer

or employee is entitled to indemnification pursuant to this Article Thirteen is

required, and the Corporation fails to respond within sixty days to a written

request for indemnity, the Corporation shall be deemed to have approved the

request. If the Corporation denies a written request for indemnification or

advancing of expenses, in whole or in part, or if payment in full pursuant to

such request is not made within 30 days after such request (or, if a

determination as described above is required, within 30 days after such

determination has been made or deemed made), the right to indemnification or

advances as granted by this Article Thirteen shall be enforceable by the

director, officer or employee in any court of competent jurisdiction. Such

person's costs and expenses incurred in connection with successfully

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

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

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

incurred in defending any Proceeding in advance of its final disposition where

the required undertaking has been tendered to the Corporation) that the claimant

has not met the standards of conduct which make it permissible under the General

Corporation Law of the State of Delaware for the Corporation to indemnify the

claimant for the amount claimed, but the burden of such defense shall be on the

Corporation. Neither the failure of the Corporation (including its board of

directors, independent legal counsel, or its stockholders) to have made a

determination prior to the commencement of such action that indemnification of

the claimant is proper in the circumstances because he has met the applicable

standard of conduct set forth in the General Corporation Law of the State of

Delaware, nor an actual determination by the Corporation (including its board of

directors, independent legal counsel, or its stockholders) that the claimant has

not met such applicable standard of conduct, shall be a defense to the action or

create a presumption that the claimant has not met the applicable standard of

conduct.

 

 

                                      -14-

<PAGE>

 

 

            13.3 Insurance. The Corporation may purchase and maintain insurance

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

or employee of the Corporation or was serving at the request of the Corporation

as a director, officer or employee of another corporation, partnership, joint

venture, trust or other enterprise (including service with respect to any

employee benefit plan) against any liability asserted against him and incurred

by him in any such capacity, whether or not the Corporation would have the power

to indemnify such person against such liability under this Article Thirteen.

 

            13.4 Expenses. Expenses incurred by any person described in this

Article Thirteen in defending a Proceeding shall be paid by the Corporation in

advance of such Proceeding's final disposition upon receipt of an undertaking by

or on behalf of the director, officer or employee to repay such amount without

interest if it shall ultimately be determined that he is not entitled to be

indemnified by the Corporation.

 

            13.5 Contract Rights. The provisions of this Article Thirteen shall

be deemed to be a contract between the Corporation and each director, officer or

employee who serves in any such capacity at any time, and any repeal or

modification of this Article Thirteen or of any relevant provisions of the

General Corporation Law of the State of Delaware or other applicable law shall

not affect any rights or obligations then existing with respect to any state of

facts or Proceeding then existing.

 

            13.6 Merger or Consolidation. For purposes of this Article Thirteen,

references to "the Corporation" shall include, in addition to the resulting

corporation, any constituent corporation (including any constituent of a

constituent) absorbed in a consolidation or merger which, if its separate

existence had continued, would have had power and authority to indemnify its

directors, officers and employees, so that any person who is or was a director,

officer or employee of such a constituent corporation, or is or was serving at

the request of such a constituent corporation as a director, officer or employee

of another corporation, partnership, joint venture, trust or other enterprise

(including service with respect to any employee benefit plan), shall stand in

the same position under this Article Thirteen with respect to the resulting or

surviving corporation as he would have with respect to such constituent

corporation if its separate existence had continued.

 

            13.7 Indemnification of Agents. The Corporation may, to the extent

authorized from time to time by the Board of Directors, grant rights to

indemnification and to the advancement of expenses to any agent of the

Corporation to the fullest extent of the provisions of this Article Thirteen

with respect to the indemnification and advancement of expenses of directors,

officers and employees of the Corporation.

 

            13.8 Amendment. The provisions set forth in this Article Thirteen

may not be amended, altered, changed or repealed in any respect unless such

actions approved by the affirmative vote of the holders of not less than eighty

percent (80%) of the outstanding shares of Common Stock entitled to vote on each

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

 

 

                                      -15-

<PAGE>

 

 

                               ARTICLE FOURTEEN

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

 

            The Corporation is to have perpetual existence.

 

 

                                ARTICLE FIFTEEN

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

 

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

any provision contained in this Certificate of Incorporation in the manner now

or hereafter prescribed herein and by the laws of the State of Delaware, and all

rights conferred upon stockholders herein are granted subject to this

reservation.

 

[As Filed: 07-25-2008]