RESTATED CERTIFICATE OF INCORPORATION

 

                                       OF

 

                                   INTUIT INC.

                  (ORIGINALLY INCORPORATED ON FEBRUARY 1, 1993)

 

 

 

 

        INTUIT INC., a Delaware corporation, hereby certifies that the Restated

Certificate of Incorporation of the Company attached hereto as EXHIBIT "A",

which is incorporated herein by this reference, and which restates and

integrates, but does not further amend, the provisions of the certificate of

incorporation of the Company as heretofore amended or supplemented, has been

duly adopted by the Company's Board of Directors in accordance with Section 245

of the Delaware General Corporation Law.

 

        IN WITNESS WHEREOF, the Company has caused this Restated Certificate of

Incorporation to be signed by its duly authorized officer this 19th day of

January, 2000.

 

                                         INTUIT INC.

 

                                         By:    /s/ VIRGINIA R. COLES

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

                                             VIRGINIA R. COLES

                                              Assistant Secretary

 

 

 

 

<PAGE>   2

 

 

                                   EXHIBIT "A"

 

                      RESTATED CERTIFICATE OF INCORPORATION

                                       OF

                                   INTUIT INC.

 

                                    ARTICLE I

 

        The name of the corporation is Intuit Inc. (the "Company").

 

 

                                   ARTICLE II

 

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

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

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

Company.

 

 

                                   ARTICLE III

 

        The purpose of the Company 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 IV

 

        A.     AUTHORIZATION OF SHARES.

 

        The total number of shares of all classes of stock which the Company has

authority to issue is 751,344,918 shares, consisting of two classes as follows:

750,000,000 shares of Common Stock, par value $0.01 per share (the "Common

Stock"), and 1,344,918 shares of Preferred Stock, par value $0.01 per share (the

"Preferred Stock").

 

        B.     DESIGNATION OF FUTURE SERIES OF PREFERRED STOCK.

 

        The Board of Directors is authorized, subject to any limitations

prescribed by the law of the State of Delaware, to provide for the issuance of

the shares of Preferred Stock in one or more series, and, by filing a

certificate of designation pursuant to the applicable law of the State of

Delaware, to establish from time to time the number of shares to be included in

each such series, to fix the designation, powers, preferences and rights of the

shares of each such series and any qualifications, limitations or restrictions

thereof, and to increase or decrease the number of shares of any such series

(but not below the number of shares of such series then outstanding). The number

of authorized shares of Preferred Stock may be increased or decreased (but not

below the number of shares thereof then outstanding) by the affirmative vote of

the holders of a majority of the stock of the Company entitled to vote, unless a

vote of any other holders is required pursuant to a certificate or certificates

establishing a series of Preferred Stock.

 

<PAGE>   3

 

        Except as expressly provided in Part C of this Article IV or except as

may be expressly provided in any Certificate of Designation designating any

series of Preferred Stock pursuant to the foregoing provisions of this Article

IV, any new series of Preferred Stock may be designated, fixed and determined as

provided herein by the Board of Directors without approval of the holders of

Common Stock or the holders of Preferred Stock, or any series thereof, and any

such new series may have powers, preferences and rights, including, without

limitation, voting rights, dividend rights, liquidation rights, redemption

rights and conversion rights, senior to, junior to or pari passu with the rights

of the Common Stock, the Preferred Stock, or any future class or series of

Preferred Stock or Common Stock.

 

        C.     SERIES A PREFERRED STOCK.

 

               1. Designation. One Hundred Forty-Four Thousand Nine Hundred

Eighteen (144,918) of the shares of Preferred Stock of the Company are hereby

designated Series A Preferred Stock, par value $0.01 per share (hereinafter

referred to as the "Series A Stock"), with the powers, preferences, rights,

limitations and restrictions specified herein.

 

               2. Dividends. Subject to the payment of dividends on senior

series of Preferred Stock which may be created by the Board of Directors

pursuant to this Article IV, the holders of the Series A Stock shall be entitled

to receive, if, as and when declared by the Board of Directors, out of any

assets legally available therefor, dividends at the rate determined by the Board

of Directors. No dividend other than a stock dividend shall be paid on any share

of Common Stock unless a dividend for each share of Series A Stock in an amount

equal to the dividend for each share of Series A Stock in an amount equal to the

dividend for each share of Common Stock multiplied by the number of shares of

Common Stock into which each share of Series A Stock is then convertible is

first declared and paid (or set apart for payment) on the Series A Stock. Such

dividends shall not be cumulative and no right to such dividends shall accrue to

holders of Series A Stock unless declared by the Board of Directors.

 

               3. Liquidation Preference. In the event of any liquidation,

dissolution, or winding up of the Company, either voluntary or involuntary,

distributions to the shareholders of the Company shall be made in the following

manner:

 

                      (a) Subject to and after the distribution of the

liquidation preference(s) of all senior series of Preferred Stock which may be

created by the Board of Directors pursuant to this Article IV, the holders of

the Series A Stock shall be entitled to receive, prior and in preference to any

distribution of any of the assets or surplus funds of the Company to the holders

of the Common Stock by reason of their ownership of such stock, the amount of

Seven Dollars and Fifty Cents ($7.50) for each share of Series A Stock then held

by them, adjusted for any combinations, consolidations or stock distributions or

dividends with respect to the shares of Series A Stock (a "Series A Stock

Recapitalization Event"), plus any declared but unpaid dividends on the Series A

Stock. If the assets and funds thus distributed among the holders of the Series

A Stock shall be insufficient to permit the payment to such holders of the full

aforesaid preferential amount, then, subject to the rights of any future series

of Preferred Stock which may be created by the Board of Directors pursuant to

this Article IV, the entire assets and funds of the Company legally available

for distribution shall be distributed among the holders of the Series A Stock in

proportion to the number of shares of Series A Stock then held by them.

 

                      (b) After payment to the holders of Series A Stock of the

amounts set forth in paragraph 3(a) hereof, the entire assets and funds of the

Company legally available for distribution, if any, shall be distributed among

the holders of the Common Stock in proportion to the number of shares of Common

Stock then held by them.

 

                                       2

 

<PAGE>   4

 

 

                      (c) The liquidation rights of the Series A Stock shall not

be participating, and accordingly the holders of Series A Stock shall not be

entitled to any payments on liquidation except as expressly set forth in this

Section 3.

 

                      (d) A consolidation or merger of the Company with or into

any other corporation or corporations, or a sale of all or substantially all of

the assets of the Company, shall not be deemed to be a liquidation, dissolution,

or winding up within the meaning of this Section 3.

 

               4. Voting Rights. Except as otherwise required by law, the holder

of each share of the Series A Stock shall be entitled to the number of votes

equal to the number of shares of Common Stock into which such share of Series A

Stock could then be converted, shall have voting rights and powers equal to the

voting rights and powers of the Common Stock, and shall be entitled to notice of

any stockholders' meeting in accordance with the Bylaws of the Company.

Fractional votes shall not, however, be permitted and any fractional voting

rights resulting from the above formula (after aggregating all shares into which

shares of Series A Stock held by each holder could be converted) shall be

rounded to the nearest whole number (with one-half being rounded up).

 

               5. Conversion. The holders of the Series A Stock shall have

conversion rights as follows (the "Conversion Rights"):

 

                      (a) Right to Convert.

 

                             (i) Each share of Series A Stock shall be

convertible, at the option of the holder, at any time after the date of issuance

of such share, at the office of the Company or any transfer agent of the Series

A Stock, into two (2) fully paid and nonassessable shares of Common Stock. (The

number of shares of Common Stock into which one (1) share of Series A Stock may

be converted is hereinafter referred to as the "Conversion Rate".)

 

                             (ii) Each share of Series A Stock shall

automatically be converted into shares of Common Stock at the then effective

Conversion Rate upon the first to occur of (i) August 31, 1993, or (ii) the last

day of the first fiscal year in which the Company has net income after provision

for income taxes, as shown on the Company's audited financial statements, of at

least $9,000,000, or (iii) the closing of an underwritten public offering of the

Company's Common Stock at an aggregate public offering price of at least

$10,000,000 and a per share price equal to or greater than $7.00, (as

appropriately adjusted for any combinations, consolidations, or stock

distributions or dividends with respect to shares of Common Stock (a "Common

Stock Recapitalization Event"), or (iv) the vote or written consent by holders

of at least two-thirds (2/3) of the then outstanding shares of Series A Stock to

convert the Series A Stock into Common Stock or (v) when less than 250,000

shares of Series A Stock (as appropriately adjusted for any Series A Stock

Recapitalization Event) remain outstanding (the "Automatic Conversion Events").

Upon an Automatic Conversion Event, each outstanding option, warrant or right to

purchase or acquire one (1) share of Series A Stock shall automatically be

converted into an option, warrant or right to purchase or acquire that number of

shares of Common Stock into which each outstanding share of Series A Stock was

converted upon such Automatic Conversion Event.

 

                      (b) Mechanics of Conversion. Before any holder of Series A

Stock shall be entitled to convert the same into shares of Common Stock, he

shall surrender the certificate or certificates for such shares, duly endorsed,

at the office of the Company or of any transfer agent for the Series A Stock, or

notify the Company or its transfer agent that such Series A Stock certificates

have been lost,

 

                                       3

 

<PAGE>   5

 

stolen or destroyed and execute an agreement satisfactory to the Company to

indemnify the Company from any loss incurred by it in connection with such

certificates, and shall give written notice to the Company at such office that

he elects to convert the same and shall state in the notice the name or names in

which he wishes the certificate or certificates for shares of Common Stock to be

issued. The Company shall then, as soon as is practicable, issue and deliver at

such office to such holder of Series A Stock, or to his nominee or nominees, a

certificate or certificates for the number of shares of Common Stock to which he

shall be entitled. Such conversion shall be deemed to have been made immediately

prior to the close of business on the date of surrender of the shares of Series

A Stock to be converted, and the person or persons entitled to receive the

shares of Common Stock issuable upon such conversion shall be treated for all

purposes as the record holder or holders of such shares of Common Stock on such

date; provided, however, that in the event of automatic conversion pursuant to

paragraph 5(a)(ii), such conversion shall be deemed to have been made upon the

occurrence of the Automatic Conversion Event triggering such conversion without

any further action by the holders of shares of Series A Stock, though the

Company shall not be obligated to issue certificates evidencing the shares of

Common Stock issuable upon such automatic conversion unless the certificates

evidencing such shares of Series A Stock are delivered to the Company or its

transfer agent as provided above, or the holder notifies the Company or its

transfer agent that such Series A Stock certificates have been lost, stolen or

destroyed and executes an agreement satisfactory to the Company to indemnify the

Company from any loss incurred by it in connection with such certificates.

 

                      (c) Mechanics for Combinations or Consolidations of Common

Stock. In the event the Company at any time or from time to time after the date

that a share of Series A Stock is first issued (hereinafter referred to as the

"Original Issue Date") effects a subdivision or combination of its outstanding

Common Stock into a greater or lesser number of shares, then and in each such

event the Conversion Rate shall be increased (in the case of a subdivision) or

decreased (in the case of a combination) proportionately.

 

                      (d) Adjustment for Certain Dividends, Distributions and

Common Stock Equivalents. In the event the Company at any time or from time to

time after the Original Issue Date shall make, use or fix a record date for the

determination of holders of Common Stock entitled to receive a dividend or other

distribution payable (hereinafter referred to as "Common Stock Equivalents")

convertible into or entitling the holder to receive additional shares of Common

Stock, without payment of any consideration by such holder for the additional

shares of Common Stock or Common Stock Equivalents (including the additional

shares of Common Stock issuable upon conversion or exercise), then, and in each

such event, the maximum number of shares (as set forth in the instrument

relating thereto without regard to any provisions contained therein for

subsequent adjustment of such number) of Common Stock issuable in payment of

such dividend or distribution or upon conversion or exercise of such outstanding

as of the time of such issuance or, in the event such record date shall have

been fixed, as of the close of business on such record date. In each such event

the Conversion Rate shall be increased as of the time of such issuance or, in

the event such a record date shall have been fixed, as of the close of business

on such record date, by multiplying the Conversion Rate by a fraction.

 

                             (i) the numerator of which shall be the total

number of shares of Common Stock issued and outstanding or deemed to be issued

and outstanding immediately prior to the time of such issuance or the close of

business on such record date plus the number of shares of Common Stock issuable

in payment of such dividend or distribution or upon conversion or exercise of

such Common Stock Equivalents; and

 

                                       4

<PAGE>   6

 

                             (ii) the denominator of which shall be the total

number of shares of Common Stock issued and outstanding or deemed to be issued

and outstanding immediately prior to the time of such issuance or the close of

business on such record date; provided, however, (A) if such record date shall

have been fixed and such dividend is not fully paid or if such distribution is

not fully made on the date fixed for such distribution, then the Conversion Rate

shall be recomputed accordingly as of the close of business on such record date

and the Conversion Rate shall be adjusted pursuant to this paragraph 5(d) as of

the time of actual payment of such dividend or distribution; (B) if such Common

Stock Equivalents provide, with the passage of time or otherwise, for any

decrease in the number of shares of Common Stock issuable upon conversion or

exercise thereof (or upon the occurrence of a record date with respect thereto),

then the Conversion Rate, and any subsequent adjustments based thereon, shall,

upon any such decrease becoming effective, be recomputed to reflect such

decrease insofar as it affects the rights of conversion or exercise of the

Common Stock Equivalents then outstanding; (C) upon the expiration of any rights

of conversion or exercise under any unexercised Common Stock Equivalents, the

Conversion Rate computed upon the original issue (or upon the occurrence of a

record date with respect thereto), and any subsequent adjustments based thereon,

shall, upon such expiration, be recomputed as if the only additional shares of

Common Stock issued were the shares of such stock, if any, that were actually

issued upon the conversion or exercise of such Common Stock Equivalents; and (D)

in the case of Common Stock Equivalents that expire by their terms not more than

sixty (60) days after the date of issuance, no adjustment of the Conversion Rate

shall be made until the expiration or exercise of all such Common Stock

Equivalents, whereupon such adjustment shall be made in the manner provided in

clause (C).

 

                      (e) Adjustments for Other Reclassifications, Dividends and

Distributions. In the event the Company at any time or from time to time after

the Original Issue Date shall effect a reclassification of its Common Stock

(other than one resulting in the issue of additional shares of Common Stock) or

shall make, issue, or fix a record date for the determination of holders of

Common Stock entitled to receive a dividend or other distribution payable in

securities of the Company other than shares of Common Stock, then, and in each

such event, provision shall be made so that the holders of Series A Stock shall

receive upon conversion of each share of Series A Stock the number of shares of

stock or other securities to which a holder of the number of shares of Common

Stock of the Company deliverable upon conversion of such Series A Stock would

have been entitled in such reclassification, dividend or distribution.

 

                      (f) Adjustments for Merger or Reorganization, etc. In the

event of any consolidation or merger of the Company with or into another

corporation (other than a merger in which the Company is the surviving

corporation) or the conveyance of all or substantially all of the assets of the

Company to another corporation, such share of Series A Stock shall thereafter be

convertible into the number of shares of stock or other securities or property

to which a holder of the number of shares of Common Stock of the Company

deliverable upon conversion of such Series A Stock would have been entitled upon

such consolidation, merger or conveyance; and, in any such case, appropriate

adjustment (as determined by the Board of Directors) shall be made in the

application of the provisions herein set forth with respect to the rights and

interest thereafter of the holders of the Series A Stock, to the end that the

provisions set forth herein (including provisions with respect to changes in and

other adjustments of the Conversion Rate) shall thereafter be applicable, as

nearly as reasonably may be, in relation to any shares of stock or other

property thereafter deliverable upon the conversion of the Series A Stock.

 

                      (g) No Impairment. The Company will not, by amendment of

its Certificate of Incorporation or through any reorganization, transfer of

assets, consolidation, merger, dissolution,

 

 

 

                                       5

<PAGE>   7

 

 

issue or sale of securities, or any other voluntary action, avoid or seek to

avoid the observance or performance of any of the terms to be observed or

performed under this Article IV by the Company, but will at all times in good

faith assist in the carrying out of all the provisions of this Section 5 and in

the taking of all such action as may be necessary or appropriate in order to

protect the Conversion Rights of the holders of the Series A Stock against

impairment.

 

                      (h) Certificate as to Adjustment. Upon the occurrence of

each adjustment or readjustment of the Conversion Rate pursuant to this Section

5, the Company at its expense shall promptly compute such adjustment or

readjustment in accordance with the terms of this Section 5 and prepare and

furnish to each holder of Series A Stock a certificate setting forth such

adjustment or readjustment and showing in detail the facts upon which such

adjustment or readjustment is based. The Company shall, upon the written request

at any time of any holder of Series A Stock, furnish or cause to be furnished to

such holder a like certificate setting forth (i) such adjustments and

readjustments, (ii) the Conversion Rate in effect at the time, and (iii) the

number of shares of Common Stock and the amount, if any, of other property that

at the time would be received upon the conversion of the Series A Stock.

 

                      (i) Notices of Record Date. In the event of any taking by

the Company of a record of the holders of any class of securities for the

purpose of determining the holders of such securities who are entitled to

receive any dividend (other than a cash dividend) or other distribution, any

Common Stock Equivalents or any right to subscribe for, purchase, or otherwise

acquire any shares of stock of any class or any other securities or property, or

to receive any other right, the Company shall mail to each holder of Series A

Stock at least twenty (20) days prior to the record date specified in such

notice, a notice specifying the date on which any such record is to be taken for

the purpose of such dividend, distribution, or rights, and the amount and

character of such dividend, distribution, or right.

 

                      (j) Issue Taxes. The Company shall pay any and all issue

and other taxes that may be payable in respect of any issue or delivery of

shares of Common Stock on conversion of shares of Series A Stock.

 

                      (k) Reservation of Stock Issuable Upon Conversion. The

Company shall at all times reserve and keep available out of its authorized but

unissued shares of Common Stock solely for the purpose of effecting the

conversion of the shares of the Series A Stock such number of its shares of

Common Stock as shall from time to time be sufficient to effect the conversion

of all outstanding shares of Series A Stock. If at any time the number of

authorized but unissued shares of Common Stock shall not be sufficient to effect

the conversion of all then outstanding shares of the Series A Stock, the Company

will take such corporate action as may, in the opinion of its counsel, be

necessary to increase its authorized but unissued shares of Common Stock to such

number of shares as shall be sufficient for such purpose.

 

                      (l) Fractional Shares. No fractional shares shall be

issued upon the conversion of any share or shares (including fractional shares)

of Series A Stock. All shares of Common Stock (including fractions) issuable

upon conversion of shares of Series A Stock by a holder of such stock shall be

aggregated for purposes of determining whether the conversion would result in

the issuance of any fractional share. If, after aggregation, the conversion

would result in the issuance of a fractional share of Common Stock, the Company

shall, in lieu of issuing any fractional share, pay the holder otherwise

entitled to such fraction a sum in cash equal to the fair market value of such

fraction on the date of conversion (as determined in good faith by the Board of

Directors of the Company).

 

                                       6

<PAGE>   8

 

                      (m) Notices. Any notice required by the provisions of this

Section 5 to be given to the holders of shares of Series A Stock shall be deemed

given if deposited in the United States mail, postage prepaid, and addressed to

each holder of record at his address appearing on the books of the Company.

 

               6. Amendment. Any of the rights of the Series A Stock specified

in this Certificate may be reduced, restricted, or eliminated (either generally

or in a particular instance and either retrospectively or prospectively) with

the written consent of (a) the Company and (b) the holders of a majority of the

Series A Stock then outstanding. All other amendments to this Part C of this

Article IV and any waiver of the observance of any form hereof, shall be made in

accordance with the provisions of the General Corporation Law of the State of

Delaware, as in effect from to time. Any such reduction, restriction,

elimination, amendment, or waiver so effected shall be binding upon the Company

and any holder of Series A Stock or Common Stock.

 

               7. Status of Converted Shares. Upon the conversion of all

outstanding shares of Series A Stock into shares of Common Stock pursuant to an

Automatic Conversion Event, such converted shares of Series A Stock shall be

cancelled and shall not thereafter be issuable by the Company.

 

 

 

 

        D.      SERIES B JUNIOR PARTICIPATING PREFERRED STOCK.

 

        The powers, preferences and relative participating, optional and other

special rights, and qualifications, limitations, and restrictions of the

Company's Series B Junior Participating Preferred Stock, as designated pursuant

to a Certificate of Designation filed in the Office of the Secretary of State of

the State of Delaware on May 5, 1998, as amended by a Certificate of Increase

filed in the Office of the Secretary of State of the State of Delaware on

November 9, 1999, are as follows:

 

               Section 1. Designation and Amount. The shares of such series

        shall be designated as "Series B Junior Participating Preferred Stock"

        (the "Series B Preferred Stock") and the number of shares constituting

        the Series B Preferred Stock shall be 250,000. Such number of shares may

        be increased or decreased by resolution of the Board of Directors;

        provided, that no decrease shall reduce the number of shares of Series B

        Preferred Stock to a number less than the number of shares then

        outstanding plus the number of shares reserved for issuance upon the

        exercise of outstanding options, rights or warrants or upon the

        conversion of any outstanding securities issued by the Corporation

        convertible into Series B Preferred Stock.

 

               Section 2. Dividends and Distributions.

 

                      (A) Subject to the rights of the holders of any shares of

        any series of Preferred Stock (or any other stock) ranking prior and

        superior to the Series B Preferred Stock with respect to dividends, the

        holders of shares of Series B Preferred Stock shall be entitled to

        receive, when, as and if declared by the Board of Directors out of funds

        legally available for the purpose, quarterly dividends payable in cash

        on the first day of March, June, September and December in each year

        (each such date being referred to herein as a "Quarterly Dividend

        Payment Date"), commencing on the first Quarterly Dividend Payment Date

        after the first issuance of a share or fraction of a share of Series B

        Preferred Stock, in an amount (if any) per

 

 

 

 

                                       7

<PAGE>   9

        share (rounded to the nearest cent), subject to the provision for

        adjustment hereinafter set forth, equal to 1000 times the aggregate per

        share amount of all cash dividends, and 1000 times the aggregate per

        share amount (payable in kind) of all non-cash dividends or other

        distributions, other than a dividend payable in shares of Common Stock,

        par value $0.01 per share (the "Common Stock"), of the Company or a

        subdivision of the outstanding shares of Common Stock (by

        reclassification or otherwise), declared on the Common Stock since the

        immediately preceding Quarterly Dividend Payment Date or, with respect

        to the first Quarterly Dividend Payment Date, since the first issuance

        of any share or fraction of a share of Series B Preferred Stock. In the

        event the Corporation shall at any time declare or pay any dividend on

        the Common Stock payable in shares of Common Stock, or effect a

        subdivision or combination or consolidation of the outstanding shares of

        Common Stock (by reclassification or otherwise than by payment of a

        dividend in shares of Common Stock) into a greater or lesser number of

        shares of Common Stock, then in each such case the amount to which

        holders of shares of Series B Preferred Stock were entitled immediately

        prior to such event under the preceding sentence shall be adjusted by

        multiplying such amount by a fraction, the numerator of which is the

        number of shares of Common Stock outstanding immediately after such

        event and the denominator of which is the number of shares of Common

        Stock that were outstanding immediately prior to such event.

 

                      (B) The Corporation shall declare a dividend or

        distribution on the Series B Preferred Stock as provided in paragraph

        (A) of this Section immediately after it declares a dividend or

        distribution on the Common Stock (other than a dividend payable in

        shares of Common Stock).

 

                      (C) Dividends due pursuant to paragraph (A) of this

        Section shall begin to accrue and be cumulative on outstanding shares of

        Series B Preferred Stock from the Quarterly Dividend Payment Date next

        preceding the date of issue of such shares, unless the date of issue of

        such shares is prior to the record date for the first Quarterly Dividend

        Payment Date, in which case dividends on such shares shall begin to

        accrue from the date of issue of such shares, or unless the date of

        issue is a Quarterly Dividend Payment Date or is a date after the record

        date for the determination of holders of shares of Series B Preferred

        Stock entitled to receive a quarterly dividend and before such Quarterly

        Dividend Payment Date, in either of which events such dividends shall

        begin to accrue and be cumulative from such Quarterly Dividend Payment

        Date. Accrued but unpaid dividends shall not bear interest. Dividends

        paid on the shares of Series B Preferred Stock in an amount less than

        the total amount of such dividends at the time accrued and payable on

        such shares shall be allocated pro rata on a share-by-share basis among

        all such shares at the time outstanding. The Board of Directors may fix

        a record date for the determination of holders of shares of Series B

        Preferred Stock entitled to receive payment of a dividend or

        distribution declared thereon, which record date shall be not more than

        60 days prior to the date fixed for the payment thereof.

 

               Section 3. Voting Rights. The holders of shares of Series B

        Preferred Stock shall have the following voting rights:

 

                      (A) Subject to the provision for adjustment hereinafter

        set forth, each share of Series B Preferred Stock shall entitle the

        holder thereof to 1000 votes on all matters submitted to a vote of the

        stockholders of the Corporation. In the event the Corporation shall at

        any time declare or pay any dividend on the Common Stock payable in

        shares of Common Stock, or effect a subdivision or combination or

        consolidation of the outstanding shares of Common Stock (by

 

                                       8

<PAGE>   10

 

 

        reclassification or otherwise than by payment of a dividend in shares of

        Common Stock) into a greater or lesser number of shares of Common Stock,

        then in each such case the number of votes per share to which holders of

        shares of Series B Preferred Stock were entitled immediately prior to

        such event shall be adjusted by multiplying such number by a fraction,

        the numerator of which is the number of shares of Common Stock

        outstanding immediately after such event and the denominator of which is

        the number of shares of Common Stock that were outstanding immediately

        prior to such event.

 

                      (B) Except as otherwise provided herein, in any other

        Certificate of Designation creating a series of Preferred Stock or any

        similar stock, or by law, the holders of shares of Series B Preferred

        Stock and the holders of shares of Common Stock and any other

        capital stock of the Corporation having general voting rights shall vote

        together as one class on all matters submitted to a vote of stockholders

        of the Corporation.

 

                      (C) Except as set forth herein, or as otherwise provided

        by law, holders of Series B Preferred Stock shall have no special voting

        rights and their consent shall not be required (except to the extent

        they are entitled to vote with holders of Common Stock as set forth

        herein) for taking any corporate action.

 

               Section 4. Certain Restrictions.

 

                      (A) Whenever quarterly dividends or other dividends or

        distributions payable on the Series B Preferred Stock as provided in

        Section 2 are in arrears, thereafter and until all accrued and unpaid

        dividends and distributions, whether or not declared, on shares of

        Series B Preferred Stock outstanding shall have been paid in full, the

        Corporation shall not:

 

                             (i)    declare or pay dividends, or make any other

        distributions, on any shares of stock ranking junior (either as to

        dividends or upon liquidation, dissolution or winding up) to the Series

        B Preferred Stock;

 

                             (ii)   declare or pay dividends, or make any other

        distributions, on any shares of stock ranking on a parity (either as to

        dividends or upon liquidation, dissolution or winding up) with the

        Series B Preferred Stock, except dividends paid ratably on the Series B

        Preferred Stock and all such parity stock on which dividends are payable

        or in arrears in proportion to the total amounts to which the holders of

        all such shares are then entitled; or

 

                             (iii)  redeem or purchase or otherwise acquire for

        consideration shares of any stock ranking junior (either as to dividends

        or upon liquidation, dissolution or winding up) to the Series B

        Preferred Stock, provided that the Corporation may at any time redeem,

        purchase or otherwise acquire shares of any such junior stock in

        exchange for shares of any stock of the Corporation ranking junior (as

        to dividends and upon dissolution, liquidation or winding up) to the

        Series B Preferred Stock.

 

                      (B) The Corporation shall not permit any subsidiary of the

        Corporation to purchase or otherwise acquire for consideration any

        shares of stock of the Corporation unless the Corporation could, under

        paragraph (A) of this Section 4, purchase or otherwise acquire such

        shares at such time and in such manner.

 

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               Section 5. Reacquired Shares. Any shares of Series B Preferred

        Stock purchased or otherwise acquired by the Corporation in any manner

        whatsoever shall be retired and canceled promptly after the acquisition

        thereof. All such shares shall upon their cancellation become authorized

        but unissued shares of Preferred Stock and may be reissued as part of a

        new series of Preferred Stock subject to the conditions and restrictions

        on issuance set forth herein, in the Certificate of Incorporation, or in

        any other Certificate of Designation creating a series of Preferred

        Stock or any similar stock or as otherwise required by law.

 

 

               Section 6. Liquidation, Dissolution or Winding Up.

 

                      (A) Upon any liquidation, dissolution or winding up of the

        Corporation, the holders of shares of Series B Preferred Stock shall be

        entitled to receive, prior and in preference to any distribution of any

        assets of the Corporation to the holders of Common Stock, the amount of

        $10.00 per share for each share of Series B Preferred Stock then held by

        them. Thereafter, the holders of shares of Series B Preferred Stock

        shall be entitled to receive an aggregate amount per share, subject to

        the provision for adjustment hereinafter set forth, equal to 1000 times

        the aggregate amount to be distributed per share to holders of shares of

        Common Stock plus an amount equal to any accrued and unpaid dividends.

        In the event the Corporation shall at any time declare or pay any

        dividend on the Common Stock payable in shares of Common Stock, or

        effect a subdivision or combination or consolidation of the outstanding

        shares of Common Stock (by reclassification or otherwise than by payment

        of a dividend in shares of Common Stock) into a greater or lesser number

        of shares of Common Stock, then in each such case the aggregate amount

        to which holders of shares of Series B Preferred Stock were entitled

        immediately prior to such event under the preceding sentence shall be

        adjusted by multiplying such amount by a fraction the numerator of which

        is the number of shares of Common Stock outstanding immediately after

        such event and the denominator of which is the number of shares of

        Common Stock that were outstanding immediately prior to such event.

 

                      (B) If the assets of the Corporation legally available for

        distribution to the holders of shares of Series B Preferred Stock upon

        liquidation, dissolution or winding up of the Corporation are

        insufficient to pay the full preferential amount set forth in the first

        sentence of paragraph (A) above, then the entire assets of the

        Corporation legally available for distribution to the holders of Series

        B Preferred Stock shall be distributed among such holders in proportion

        to the shares of Series B Preferred Stock then held by them.

 

                      (C) The foregoing rights upon liquidation, dissolution or

        winding up provided to the holders of Series B Preferred Stock shall be

        subject to the rights of the holders of any other series of Preferred

        Stock (or any other stock) ranking prior and superior to the Series B

        Preferred Stock upon liquidation, dissolution or winding up.

 

               Section 7. Consolidation, Merger, etc. In case the Corporation

        shall enter into any consolidation, merger, combination or other

        transaction in which the shares of Common Stock are exchanged for or

        changed into other stock or securities, cash and/or other property, then

        in any such case each share of Series B Preferred Stock shall at the

        same time be similarly exchanged or changed into an amount per share,

        subject to the provision for adjustment hereinafter set forth, equal to

        1000 times the aggregate amount of stock, securities, cash and/or any

        other property (payable in kind), as the case may be, into which or for

        which each share of Common Stock is changed or exchanged. In the event

        the Corporation shall at any time declare

 

 

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<PAGE>   12

 

        or pay any dividend on the Common Stock payable in shares of Common

        Stock, or effect a subdivision or combination or consolidation of the

        outstanding shares of Common Stock (by reclassification or otherwise

        than by payment of a dividend in shares of Common Stock) into a greater

        or lesser number of shares of Common Stock, then in each such case the

        amount set forth in the preceding sentence with respect to the exchange

        or change of shares of Series B Preferred Stock shall be adjusted by

        multiplying such amount by a fraction, the numerator of which is the

        number of shares of Common Stock outstanding immediately after such

        event and the denominator of which is the number of shares of Common

        Stock that were outstanding immediately prior to such event.

 

               Section 8. No Redemption.  The shares of Series B Preferred Stock

        shall not be redeemable.

 

                                    ARTICLE V

 

        To the fullest extent permitted by law, no director of the Company shall

be personally liable for monetary damages for breach of fiduciary duty as a

director. Without limiting the effect of the preceding sentence, if the Delaware

General Corporation Law is hereafter amended to authorize the further

elimination or limitation of the liability of a director, then the liability of

a director of the Company shall be eliminated or limited to the fullest extent

permitted by the Delaware General Corporation Law, as so amended.

 

        Neither any amendment nor repeal of this Article V, nor the adoption of

any provision of this Certificate of Incorporation inconsistent with this

Article V, shall eliminate, reduce or otherwise adversely affect any limitation

on the personal liability of a director of the Company existing at the time of

such amendment, repeal or adoption of such an inconsistent provision.

 

 

                                   ARTICLE VI

 

        The Board of Directors of the Company shall have the power to adopt,

amend or repeal Bylaws of the Company.

 

 

                                   ARTICLE VII

 

        Election of directors need not be by written ballot, unless the Bylaws

of the Company shall so provide.

 

 

[As Filed: 06-14-2000]