RESTATED

 

                          CERTIFICATE OF INCORPORATION

 

                                       OF

 

                                  MAXXAM INC. *

 

                         (Pursuant to Section 245 of the

                        Delaware General Corporation Law)

 

                  MAXXAM Inc., a corporation organized and existing under the

laws of the State of Delaware, hereby certifies as follows:

 

                  1. The name of the corporation is MAXXAM Inc., which name was

changed from MCO Holdings, Inc. on October 6, 1988.

 

                  2. The original Certificate of Incorporation of the

corporation was filed with the Secretary of State on August 5, 1955 under the

name Cuban American Oil Company.

 

                  3. This Restated Certificate of Incorporation restates and

integrates the Certificate of Incorporation of the corporation, as heretofore

amended, to read in its entirety as follows:

 

                  FIRST:   The name of the corporation is MAXXAM Inc.

 

                  SECOND: Its registered office in the State of Delaware is

located at 615 South DuPont Highway, in the City of Dover, County of Kent,

19901. The name and address of its registered agent is Capitol Services, Inc.,

615 South DuPont Highway, Dover, Delaware 19901.

 

                  THIRD: The nature of the business, or objects or purposes to

be transacted, promoted or carried on are:

 

                  To establish and maintain an oil business, and to refine,

market, and distribute crude oil, or petroleum and all of its products; to

locate, purchase, lease, sublease, develop, or otherwise acquire and sell,

mortgage or otherwise dispose of lands containing or believed to contain

petroleum, oil or natural gas, or either of them, and to drill or prospect for

or produce the same; to purchase, lease, or otherwise acquire, and to sell,

mortgage or otherwise dispose of developed or producing oil and gas properties

or the products of such oil or gas properties; to purchase, produce, refine,

sell and distribute petroleum and all of the products and by-products thereof,

to buy, sell or otherwise dispose of, and manufacture all kinds of illuminating,

burning and heating oils, and gasoline, naphtha, lubricants, greases, waxes and

all other products and by-products of petroleum; to act as broker or agent for

others in all of said acts.

 

--------

*        Reflects the Certificate of Amendment hereto filed with the Delaware

         Secretary of State on June 8, 2004 (and the Certificate of Correction

         thereto filed on June 18, 2004), as well as the Certificates of

         Designation filed with the Delaware Secretary of State on February 26,

         1990, July 6, 1994 and January 18, 2000.

 

 

                  To purchase or otherwise acquire or invest in, own, mortgage,

pledge, sell, assign, transfer, or otherwise dispose of, in whole or in part,

oil, gas and mineral leases and interests therein, fee lands, mineral interests

in lands, mining claims, oil, gas or mineral concessions, applications or

options to acquire oil, gas or mineral leases, royalty interests, overriding

royalty interests, net profits interests, production payments and any other

interest in lands or any interest created by contract or otherwise which

entitles the owner or owners thereof to participate in any way in, or obtain any

advantage from, the production or sale of oil, gas or other minerals, whether

similar or dissimilar.

 

                  To prospect for, operate, maintain, improve and develop oil,

gas or other similar or dissimilar mineral properties, to mine, explore for oil,

gas or other similar or dissimilar minerals by any means, including the drilling

of wells or mining for such purposes, and to purchase and sell oil, gas or other

similar or dissimilar minerals and all products and by-products thereof.

 

                  To enter into, maintain, operate or carry on in any or all of

its branches the business of exploring for, producing, developing, mining,

processing, refining, treating, handling, marketing or dealing in petroleum,

oil, natural gas, asphalt, bituminous rock, sulphur and any and all other

minerals, whether similar or dissimilar, and any and all products or by-products

which may be derived from such substances, or any of them; and for all or any of

such purposes to acquire, own, lease, operate or otherwise deal in or with oil

or gas wells, tanks, storage facilities, gathering systems, pipelines,

processing plants, mines, samplers, refineries, smelters, crushers, mills,

wharves, water craft, aircraft, tank cars, communication systems, machinery,

equipment and any and all other kinds and types of real or personal property

that may in any wise be deemed necessary, convenient or advisable in connection

with the carrying on of such business or any branch thereof.

 

                  To engage in the business of drilling, deepening, equipping,

cleaning, reconditioning, developing and operating of oil, gas and water wells,

both for this corporation and for others.

 

                  To transport oil, gas and other similar and dissimilar

minerals, as well as any and all refinements and by-products thereof, and also

any and all types and kinds of equipment, supplies, materials, machinery, goods,

wares, and merchandise and property, and to buy, exchange, construct, contract

for, lease and in any and all other ways acquire, take, hold and own any and all

required easements, transportation equipment and facilities, including gathering

lines and pipelines, and to manage, maintain and operate the same, and to sell,

mortgage, lease or otherwise dispose of the same.

 

                  To purchase, exchange, appropriate or otherwise acquire, take,

hold and own, and to sell, mortgage, lease or otherwise dispose of water rights

and water supplies, together with the necessary pipelines, reservoirs, dams,

ditches and appurtenances, and to manage, operate, maintain, improve, extend and

develop such water rights and supplies.

 

                  To buy, exchange, contract for, lease, and in any and all

other ways, acquire, take, hold and own, and to deal in, sell, mortgage, lease

or otherwise dispose of real property, and rights and interests in and to real

property, and to manage, operate, maintain, improve, and develop the same.

 

                  To manufacture, purchase or otherwise acquire, invest in, own,

mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal

in and deal with machinery, equipment, pipe, appliances, building materials,

goods, wares and merchandise and personal property of every class and

description.

 

                  To establish and maintain an oil business with authority to

contract for the lease and purchase of the right to prospect for, develop and

use coal and other minerals, petroleum and gas, also the right to erect, build

and own all necessary oil tanks, cars and pipes necessary for the operation of

the business of the same.

 

                  To establish and maintain a drilling business, with authority

to own and operate drilling rigs, machinery, tools and apparatus necessary in

the boring, or otherwise sinking of wells in the production of oil, gas or

water, or either, and the purchase and sale of such goods, wares and merchandise

used for such business.

 

                  To store, transport, buy and sell oil, gas, salt, brine, other

mineral solutions and liquefied minerals; also sand and clay for the manufacture

and sale of clay products.

 

                  To search, prospect and explore for minerals, metals, ores,

coal, stone, petroleum, gas, timber and any other useful or valuable elements,

substances or products; to acquire, own, develop and exploit rights, claims and

interests in lands and the products thereof; to acquire, own, maintain, develop,

improve, manage, work and operate mines, pits, quarries, collieries, timberlands

and properties of all kinds, and any articles, materials, machinery, equipment

and property used therefor or in connection therewith.

 

                  To manufacture, purchase or otherwise acquire, invest in, own,

mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade, deal

in and deal with goods, wares and merchandise and personal property of every

class and description.

 

                  To acquire, and pay for in cash, stock or bonds of this

corporation or otherwise, the goodwill, rights, assets and property, and to

undertake or assume the whole or any part of the obligations or liabilities of

any person, firm, association or corporation.

 

                  To acquire, hold, use, sell, assign, lease, grant licenses in

respect of, mortgage or otherwise dispose of letters patent of the United States

or any foreign country, patent rights, licenses and privileges, inventions,

improvements and processes, copyrights, trademarks and trade names, relating to

or useful in connection with any business of this corporation.

 

                  To acquire by purchase, subscription or otherwise, and to

receive, hold, own, guarantee, sell, assign, exchange, transfer, mortgage,

pledge or otherwise dispose of or deal in and with any of the shares of the

capital stock, or any voting trust certificates in respect of the shares of

capital stock, scrip, warrants, rights, bonds, debentures, notes, trust

receipts, and other securities, obligations, choses in action and evidences of

indebtedness or interest issued or created by any corporations, joint stock

companies, syndicates, associations, firms, trusts or persons, public or

private, foreign or domestic, or by the government of the United States of

America, or by any foreign government, or by any state, territory, province,

municipality or other political subdivision or by any governmental agency, and

as owner thereof to possess and exercise all the rights, powers and privileges

of ownership, including the right to execute consents and vote thereon, and to

do any and all acts and things necessary or advisable for the preservation,

protection, improvement and enhancement in value thereof.

 

                  To enter into, make and perform contracts of every kind and

description with any person, firm, association, corporation, municipality,

county, state, body politic or government or colony or dependency thereof.

 

                  To borrow or raise moneys for any of the purposes of the

corporation and, from time to time without limit as to amount, to draw, make,

accept, endorse, execute and issue promissory notes, drafts, bills of exchange,

warrants, bonds, debentures and other negotiable or non-negotiable instruments

and evidences of indebtedness, and to secure the payment of any thereof and of

the interest thereon by mortgage upon or pledge, conveyance or assignment in

trust of the whole or any part of the property of the corporation, whether at

the time owned or thereafter acquired, and to sell, pledge or otherwise dispose

of such bonds or other obligations of the corporation for its corporate

purposes.

 

                  To loan to any person, firm or corporation any of its surplus

funds, either with or without security.

 

                  To purchase, hold, sell and transfer the shares of its own

capital stock; provided it shall not use its funds or property for the purchase

of its own shares of capital stock when such use would cause any impairment of

its capital except as otherwise permitted by law, and provided further that

shares of its own capital stock belonging to it shall not be voted upon directly

or indirectly.

 

                  To have one or more offices, to carry on all or any of its

operations and business and without restriction or limit as to amount to

purchase or otherwise acquire, hold, own, mortgage, sell, convey or otherwise

dispose of, real and personal property of every class and description in any of

the states, districts, territories or colonies of the United States, and in any

and all foreign countries, subject to the laws of such state, district,

territory, colony or country.

 

                  In general, to carry on any other business in connection with

the foregoing, and to have and exercise all the powers conferred by the laws of

Delaware upon corporations formed under the General Corporation Law of the State

of Delaware, and to do any or all of the things hereinbefore set forth to the

same extent as natural persons might or could do.

 

                  The objects and purposes specified in the foregoing clauses

shall, except where otherwise expressed, be in no wise limited or restricted by

reference to, or inference from, the terms of any other clause in this

Certificate of Incorporation, but the objects and purposes specified in each of

the foregoing clauses of this article shall be regarded as independent objects

and purposes.

 

                  FOURTH: The total number of shares of all classes of stock

which the corporation shall have authority to issue is 15,500,000 (fifteen

million, five hundred thousand) shares, consisting of:

 

                  (a) 2,500,000 (two million, five hundred thousand) shares of

                  the par value of $.50 per share, which shall be designated

                  Preferred Stock; and

 

                  (b) 13,000,000 (thirteen million) shares of the par value of

                  $.50 per share, which shall be designated Common Stock.

 

                  A. Statement of Preferences, Limitations and Relative Rights

                  in Respect of Shares of Preferred Stock and Authority of Board

                  of Directors to Fix Designations, Powers, Preferences, Rights,

                  Qualifications, Limitations and Restrictions Thereof Not Fixed

                  Hereby.

 

                  Shares of Preferred Stock may be issued from time to time in

one or more classes or one or more series within any class thereof, as may be

determined from time to time by the Board of Directors, each of said classes and

series to be distinctly designated. All shares of any one series of Preferred

Stock shall be alike in every particular. The voting rights, if any, of each

such class and series and the preferences and relative, participating, optional

and other special rights of each such class and series and the qualifications,

limitations or restrictions thereof, if any, may differ from those of any and

all other classes and series at any time outstanding; and, subject to the

provisions of Section C of this Article FOURTH, the Board of Directors of the

corporation is hereby expressly granted authority to fix, by resolutions duly

adopted prior to the issuance of any shares of a particular class or series of

Preferred Stock, the voting powers, if any, of stock of such class or series and

the designations, preferences and relative, optional and other special rights,

and the qualifications, limitations and restrictions of such class or series

within such class, including, but without limiting the generality of the

foregoing, the following:

 

                           (a) The rate and times at which, and the terms and

                  conditions on which, dividends on Preferred Stock of such

                  class or series shall be paid;

 

                           (b) The right, if any, of the holders of Preferred

                  Stock of such class or series to convert the same into, or

                  exchange the same for, shares of other classes or series of

                  stock of the corporation and the terms and conditions of such

                  conversion or exchange;

 

                           (c) The redemption price or prices and the time or

                  times at which, and the terms and conditions on which,

                  Preferred Stock of such class or series may be redeemed;

 

                           (d) The rights of the holders of Preferred Stock of

                  such class or series upon the voluntary or involuntary

                  liquidation, merger, consolidation, distribution or sale of

                  assets, dissolution or winding up, of the corporation;

 

                           (e) The terms of the sinking fund or redemption or

                  purchase account, if any, to be provided for the Preferred

                  Stock of such class or series;

 

                           (f) The distinctive designation of, and the number of

                  shares of Preferred Stock which shall constitute such class or

                  series, which number may be increased (except where otherwise

                  provided by the Board of Directors) or decreased (but not

                  below the number of shares thereof then outstanding) from time

                  to time by like action of the Board of Directors; and

 

                           (g) The voting powers, if any, of the holders of such

                  class or series of Preferred Stock which may, without limiting

                  the generality of the foregoing, include (i) the right to more

                  or less than one vote per share on any or all matters voted

                  upon by the stockholders and (ii) the right, voting as a class

                  or series by itself or together with other classes or series

                  of Preferred Stock or all classes and series of Preferred

                  Stock as a class, to elect one or more directors of the

                  corporation if there shall have been a default in the payment

                  of dividends on any one or more classes or series of Preferred

                  Stock or under such other circumstances and on such conditions

                  as the Board of Directors may determine.

 

                  B. Statement of Limitations, Relative Rights and Powers in

Respect of Shares of Common Stock.

 

                  1. After the requirements with respect to preferential

dividends on the Preferred Stock (fixed in accordance with the provisions of

Section A of this Article FOURTH) shall have been met and after the corporation

shall have complied with all the requirements, if any, with respect to the

setting aside of sums as sinking funds or redemption or purchase accounts (fixed

in accordance with the provisions of Section A of this Article FOURTH), then and

not otherwise the holders of Common Stock shall be entitled to receive such

dividends as may be declared from time to time by the Board of Directors.

 

                  2. After distribution in full of the preferential amount to be

distributed to the holders of Preferred Stock in the event of the voluntary or

involuntary liquidation, distribution or sale of assets, dissolution or winding

up, of the corporation, the holders of the Common Stock shall, subject to the

rights, if any, of the holders of Preferred Stock to participate therein (fixed

in accordance with the provisions of Section A of this Article FOURTH), be

entitled to receive all the remaining assets of the corporation, tangible and

intangible, of whatever kind available for distribution to stockholders ratably

in proportion to the number of shares of Common Stock held by them respectively.

 

                  3. Except as may otherwise be required by law or by the

provisions of such resolution or resolutions as may be adopted by the Board of

Directors pursuant to Section A of this Article FOURTH, each holder of Common

Stock shall have one vote in respect of each share of stock held by him on all

matters voted upon by stockholders.

 

                  C. Other Provisions.

 

                  1. No holder of shares of any class or series of stock of the

corporation shall be entitled as such, as a matter of right, to subscribe for or

purchase any part of any new or additional issue of any stock of any class,

series or kind whatsoever, or to subscribe for or purchase securities

convertible into stock of any class, series or kind whatsoever, whether now or

hereafter authorized, and whether issued for cash, property or services or by

way of dividends or otherwise.

 

                  2. The powers and rights of the holders of Common Stock shall

be subordinated to the powers, preferences and rights of the holders of

Preferred Stock. The relative powers, preferences and rights of each class or

series of Preferred Stock in relation to powers, preferences and rights of each

other class or series of Preferred Stock shall, in each case, be as fixed from

time to time by the provisions of such resolution or resolutions as may be

adopted by the Board of Directors pursuant to Section A of this Article FOURTH,

and the consent, by class or series vote or otherwise, of the holders of such of

the classes or series of Preferred Stock as are from time to time outstanding

shall not be required for the issuance by the Board of Directors of any other

classes or series of Preferred Stock whether or not the powers, preferences and

rights of such other classes or series shall be fixed by the Board of Directors

as senior to, or on a parity with, the powers, preferences and rights of such

outstanding classes or series, or any of them; provided, however, that the Board

of Directors may provide in the resolution or resolutions as to any classes or

series of Preferred Stock adopted pursuant to Section A of this Article FOURTH

that the consent of the holders of a majority (or such greater proportion as

shall be therein fixed) of the outstanding shares of such classes or series

voting thereon shall be required for the issuance of any or all other classes or

series of Preferred Stock.

 

                  3. Subject to the provisions of Paragraph 2 of Section C of

this Article FOURTH, shares of any class or series of Preferred Stock may be

authorized or issued, in aggregate amounts not exceeding the total number of

shares of Preferred Stock authorized by this Certificate of Incorporation,

from time to time as the Board of Directors of the corporation shall determine

and for such consideration as shall be fixed by the Board of Directors.

 

                  4. Shares of Common Stock, in an aggregate amount not

exceeding the total number of shares of Common Stock authorized in this

Certificate of Incorporation, may be issued from time to time as the Board of

Directors of the corporation shall determine and for such consideration as shall

be fixed by the Board of Directors.

 

                  5. The authorized number of shares of Common Stock and of

Preferred Stock may, without a class or series vote, be increased or decreased

from time to time by the affirmative vote of the holders of a majority of the

stock of the corporation entitled to vote thereon.

 

                  6. Pursuant to the authority expressly granted to and vested

in the Board of Directors of the corporation by the provisions of its

Certificate of Incorporation, as amended, the Board of Directors of the

corporation hereby creates a class of Preferred Stock of the corporation to

consist of 2,500,000 shares of Preferred Stock, $.50 par value per share, which

the corporation now has authority to issue, and the Board of Directors of the

corporation hereby fixes the powers, designations, preferences and relative,

participating, optional and other special rights, and the qualifications,

limitations or restrictions thereof, of the shares of such class of Preferred

Stock (in addition to the powers, designations, preferences and relative,

participating, optional and other special rights, and the qualifications,

limitations or restrictions thereof, set forth in the Certificate of

Incorporation, as amended, of the corporation which are applicable to Preferred

Stock of all classes and series) as follows:

 

                  1. Designation and Number. The distinctive designation of the

class shall be Class A. $.05 Non-Cumulative Participating Convertible Preferred

Stock (hereinafter, "Class A Preferred Stock"); the number of shares of Class A

Preferred Stock which the corporation is authorized to issue shall be 2,500,000,

which number may be increased or decreased (but not below the number of shares

then outstanding) from time to time by the Board of Directors of the

corporation.

 

                  2. Definitions. For purposes of this resolution, the following

terms shall have the meanings indicated.

 

                  (a) The term "Senior Stock" means all those classes and series

of preferred or special stock and all those classes and series of Preferred

Stock which, by the terms of the Certificate of Incorporation (as the same has

heretofore been or may hereafter be amended) or of the instrument by which the

Board of Directors, acting pursuant to authority granted in the Certificate of

Incorporation (as the same has heretofore been or may hereafter be amended),

shall designate the special rights and limitations of each such class or series

of preferred or special stock or class or series of Preferred Stock, shall be

senior to Class A Preferred Stock with respect to the preferential rights of the

holders of Class A Preferred Stock to receive dividends or to participate in the

assets of the corporation distributable to stockholders upon any liquidation,

dissolution or winding-up of the corporation.

 

                  (b) The term "Parity Stock" means all those classes and series

of preferred or special stock and all those classes and series of Preferred

Stock which, by the terms of the Certificate of Incorporation (as the same has

heretofore been or may hereafter be amended) or of the instrument by which the

Board of Directors, acting pursuant to authority granted in the Certificate of

Incorporation (as the same has heretofore been or may hereafter be amended),

shall designate the special rights and limitations of each such class or series

of preferred or special stock or class or series of Preferred Stock, shall be on

a parity with Class A Preferred Stock with respect to the preferential rights of

the holders of Class A Preferred Stock to receive dividends and to participate

in the assets of the corporation distributable to stockholders upon any

liquidation, dissolution or winding-up of the corporation.

 

                  (c)      The term "Junior Stock" means

 

                           (i) Common Stock which is, and

 

                           (ii) all those classes and series of preferred or

special stock and all those classes and series of Preferred Stock which, by the

terms of the Certificate of Incorporation (as the same has heretofore been or

may hereafter be amended) or of the instrument by which the Board of Directors,

acting pursuant to authority granted in the Certificate of Incorporation (as the

same has heretofore been or may hereafter be amended), shall designate the

special rights and limitations of each such class or series of preferred or

special stock or class or series of Preferred Stock, shall be subordinate to

Class A Preferred Stock with respect to the preferential rights of the holders

of Class A Preferred Stock to receive dividends and to participate in the assets

of the corporation distributable to stockholders upon any liquidation,

dissolution or winding-up of the corporation.

 

                  (d) The term "Fiscal Year" means the annual period commencing

on January 1 and ending on December 31 of each calendar year.

 

                  3. Dividends.

 

                  (a) Subject to the prior rights of the holders of Senior

Stock, if any, the holders of Class A Preferred Stock, in preference to the

holders of Junior Stock, shall be entitled, in conjunction with any provision

then being made for the holders of Parity Stock, if any, to receive, when, as

and if declared by the Board of Directors, out of any assets of the corporation

lawfully available for the payment of dividends, preferential cash dividends in

the amount of $.05 per share in respect of each Fiscal Year (the "Preferential

Amount"), payable annually or at such intervals during any Fiscal Year as the

Board of Directors may, from time to time, determine; provided, that the

preferential cash dividend, if any, on shares of Class A Preferred Stock in

respect of the Fiscal Year ending December 31, 1981, shall be in an amount per

share (computed to the nearest whole cent) determined by multiplying $.05 by a

fraction, the numerator of which is the number of days from the date of the

initial issuance of shares of Class A Preferred Stock to December 31, 1981, and

the denominator of which is 365. Each preferential cash dividend payment shall

be paid to the holders of shares of Class A Preferred Stock of record on the

date fixed for that purpose by the Board of Directors in advance of such

payment. Any preferential cash dividend declared on the Class A Preferred Stock

shall be deemed to have been declared in respect of the Fiscal Year in which

such dividend is payable. Dividends on Class A Preferred Stock as provided in

this Section 3(a) shall not be cumulative, and no right shall accrue to the

holders of Class A Preferred Stock by reason of the fact that such dividends are

not declared in respect of any prior Fiscal Year or Fiscal Years.

 

                  (b) So long as any Class A Preferred Stock is outstanding, no

dividends whatever shall be paid or declared, nor shall any distribution be

made, on any Junior Stock, other than a dividend or distribution payable in

Junior Stock or in rights or warrants (which expire not later than 45 days after

the record date fixed for the issuance thereof) to subscribe for or to purchase

Junior Stock, unless cash dividends on the Class A Preferred Stock in an amount

not less than the Preferential Amount in respect of the then current Fiscal Year

shall have been paid or declared and a sum sufficient for the payment thereof

set apart.

 

                  (c) In addition to the preferential cash dividends provided

for in Section 3(a) hereof, the holders of Class A Preferred Stock shall, except

as hereinafter provided in this Section 3(c) and in Sections 3(d) and 3(e)

hereof, be entitled to participate, on a share for share basis, with the holders

of Common Stock in all dividends and other distributions whenever any dividend

or distribution is declared on the Common Stock in respect of any Fiscal Year.

If and whenever the corporation shall declare any dividend or distribution on

the Common Stock in respect of any Fiscal Year (other than cash dividends to the

extent not exceeding $.05 per share in respect of such Fiscal Year, or any

dividend or distribution payable in shares of Common Stock (as provided for in

Section 3 (d) hereof or in warrants or other rights (which expire not later than

45 days after the record date fixed for the issuance thereof) to subscribe for

or to purchase Common Stock (as provided for in Section 3(e) hereof)), the

corporation shall, concurrently with the declaration of such dividend or

distribution on the Common Stock, declare a dividend or distribution, as the

case may be, in an equal amount per share (except to the extent that cash

dividends declared theretofore on the Common Stock do not exceed $.05 in respect

of such Fiscal Year) on Class A Preferred Stock. Any dividend or distribution

payable to the holders of Class A Preferred Stock pursuant to this Section 3(c)

shall be paid to the holders of Class A Preferred Stock at the same time as the

dividend or distribution on the Common Stock by which it is measured is paid.

Any dividend or other distribution declared on the Common Stock shall be deemed

to have been declared in respect of the Fiscal Year in which such dividend or

other distribution is payable.

 

                  (d) If and whenever the corporation shall declare any dividend

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

corporation shall, concurrently with the declaration of such dividend or

distribution on the Common Stock, declare an identical dividend or distribution,

as the case may be, on the Class A Preferred Stock, except that the dividend or

distribution declared on the Class A Preferred Stock shall be a dividend or

distribution payable in shares of Class A Preferred Stock. The terms of any such

dividend or distribution declared on the Class A Preferred Stock shall be

identical to the terms of any such dividend or distribution declared on the

Common Stock, except that the dividend or distribution declared on the Class A

Preferred Stock shall be payable in shares of Class A Preferred Stock. Without

limiting the generality of the foregoing, whenever any such dividends or

distributions payable in shares of Common Stock and Class A Preferred Stock are

declared on the Common Stock and Class A Preferred Stock, respectively, (i) the

number of shares payable in respect of the dividend or distribution on the

Common Stock and the dividend or distribution on the Class A Preferred Stock

shall be the same in respect of each outstanding share of Common Stock and Class

A Preferred Stock, and (ii) the record and payment dates, respectively, in

respect of the dividend or distribution on the Common Stock and the dividend or

distribution on the Class A Preferred Stock shall be the same.

 

                  (e) If and whenever the corporation shall grant rights or

warrants to the holders of Common Stock, as such, entitling them (for a period

of not more than 45 days after the record date fixed for the issuance of such

rights or warrants) to subscribe for or to purchase shares of Common Stock, the

corporation shall, concurrently with the granting of such rights or warrants to

the holders of Common Stock, grant to the holders of Class A Preferred Stock

identical rights or warrants, except that the rights or warrants granted to the

holders of Class A Preferred Stock shall be rights or warrants to subscribe for

or to purchase shares of Class A Preferred Stock. The terms and provisions of

any such rights or warrants granted to the holders of Class A Preferred Stock

shall be identical to the terms and provisions of any such rights or warrants

granted to the holders of Common Stock, except that the rights or warrants

granted to the holders of Class A Preferred Stock shall be rights and warrants

to subscribe for or to purchase Class

 

A Preferred Stock. Without limiting the generality of the foregoing, whenever

any such rights or warrants to subscribe for or to purchase shares of Common

Stock and Class A Preferred Stock are granted to holders of Common Stock and

Class A Preferred Stock, respectively, (i) the number of such rights or warrants

granted in respect of each outstanding share of Common Stock and Class A

Preferred Stock shall be identical, (ii) the number of shares of Common Stock

and Class A Preferred Stock purchasable upon exercise of each such right or

warrant granted to the respective holders of Common Stock and Class A Preferred

Stock shall be identical, and (iii) the price per share of Common Stock and

Class A Preferred Stock purchasable upon exercise of such rights or warrants

granted to the respective holders of Common Stock and Class A Preferred Stock

shall be identical.

 

                  (f) The corporation shall not subdivide or combine its

outstanding shares of Common Stock unless, concurrently therewith, the

corporation shall make a proportionate subdivision or combination of its

outstanding shares of Class A Preferred Stock.

 

                  4. Liquidation.

 

                  (a) The Class A Preferred Stock shall be preferred as to

assets over the Junior Stock so that, in the event of the voluntary or

involuntary liquidation, dissolution or winding-up of the corporation, the

holders of Class A Preferred Stock shall be entitled, in conjunction with any

provision then being made for the holders of Parity Stock, if any, to have set

apart for them or to be paid out of the assets of the corporation, after

provision for the holders of Senior Stock, if any, but before any distribution

is made to or set apart for the holders of Junior Stock, a preferential amount

in cash equal to $.75 per share of Class A Preferred Stock. If, upon any such

liquidation, dissolution or winding-up of the corporation, the assets of the

corporation available for distribution to the holders of its stock shall, after

provision for the holders of Senior Stock, if any, be insufficient to permit the

distribution in full of the preferential amounts receivable as aforesaid by the

holders of Class A Preferred Stock and the preferential amounts receivable by

the holders of Parity Stock, if any, then all such assets of the corporation

shall be distributed ratably among the holders of Class A Preferred Stock and

the holders of Parity Stock, if any, in proportion to the preferential amounts

which each would have been entitled to receive if such assets were sufficient to

permit distribution in full as aforesaid. Neither the consolidation nor merger

of the corporation with or into any other corporation, nor the sale, lease or

transfer by the corporation of all or any part of its assets shall be deemed to

be a liquidation, dissolution or winding-up of the corporation for the purposes

of this Section 4.

 

                  (b) In addition to the preference as to assets provided for in

Section 4(a) hereof, the holders of Class A Preferred Stock shall be entitled to

participate, on a share for share basis, with the holders of Common Stock in all

assets of the corporation available for distribution in the event of the

voluntary or involuntary liquidation, dissolution or winding-up of the

corporation whenever any such distribution is made to the holders of Common

Stock. If and whenever the corporation shall make a distribution in the event of

the voluntary or involuntary liquidation, dissolution or winding-up of the

corporation to the holders of Common Stock, the corporation shall, concurrently

with the making of such distribution to the holders of Common Stock, make a

distribution in an equal amount per share to the holders of Class A Preferred

Stock. Any distribution payable to the holders of Class A Preferred Stock

pursuant to this Section 4(b) shall be paid to the holders of Class A Preferred

Stock at the same time as the distribution on the Common Stock by which it is

measured is paid.

 

                  5. Conversion. The holders of shares of Class A Preferred

Stock shall have the right, at their option, to convert such shares into shares

of Common Stock of the corporation any time subsequent to the earlier of (i)

September 15, 1986, and (ii) the effective date of any reclassification or

change of outstanding shares of Common Stock, consolidation, merger, sale or

conveyance of the character referred to in Section 5(c) hereof, subject to the

following terms and conditions:

 

                  (a) The shares of Class A Preferred Stock shall be convertible

at the office of any transfer agent of the corporation (or at such other office

or offices, if any, as the Board of Directors may designate) into fully paid and

non-assessable shares of Common Stock of the corporation, at the rate of one (1)

share of Common Stock for each share of Class A Preferred Stock. Upon any

conversion, no adjustment shall be made for dividends on the shares of Class A

Preferred Stock surrendered for conversion or for dividends on the shares of

Common Stock issued upon such conversion.

 

                  (b) In order to convert shares of Class A Preferred Stock into

Common Stock the holder thereof shall surrender at any office hereinabove

mentioned the certificate or certificates for Class A Preferred Stock so to be

converted and give written notice to the corporation at said office that the

holder elects to convert said Class A Preferred Stock, or a stated number of

shares thereof, in accordance with the provisions of this Section 5. Such notice

shall also state the name or names (with addresses) in which the certificate or

certificates for Common Stock shall be issued. As promptly as practicable after

the surrender for conversion of any Class A Preferred Stock pursuant to the

provisions of this Section 5, the corporation shall deliver or cause to be

delivered to or upon the written order of the holder of such Class A Preferred

Stock one or more certificates representing the number of shares of Common Stock

issuable upon such conversion, issued in such name or names as such holder may

direct, together with, if the certificate(s) surrendered evidence a greater

number of shares of Class A Preferred Stock than the number of shares to be

converted, one or more certificates evidencing the shares of Class A Preferred

Stock not to be converted. Each such conversion shall be deemed to have been

made immediately prior to the close of business on the day of surrender of the

Class A Preferred Stock for conversion, and all rights of the converting holder

as a holder of the shares of Class A Preferred Stock surrendered for conversion

shall cease at such time and the person or persons in whose name or names the

certificate(s) for the shares of Common Stock issuable upon conversion are to be

issued shall be treated for all purposes as having become the record holder or

holders thereof at such time.

 

                  (c) In case any of the following shall occur: (i) any

reclassification or change of the outstanding shares of Common Stock (other than

a change in par value, or from par value to no par value, or from no par value

to par value, or as a result of a subdivision or combination); or (ii) any

consolidation or merger to which the corporation is a party (other than a merger

in which the corporation is the surviving corporation and which does not result

in any reclassification of, or change in, the outstanding shares of Common

Stock); or (iii) any sale or conveyance of the property of the corporation as an

entirety or substantially as an entirety, then, in each such case, effective

provision shall be made whereby the holders of the Class A Preferred Stock then

outstanding shall have the right to convert such Class A Preferred Stock into

the kind and amount of shares of stock and other securities and property

receivable upon such reclassification, change, consolidation, merger, sale or

conveyance by a holder of the number of shares of Common Stock issuable (or

which would then be issuable if the Class A Preferred Stock were convertible

into Common Stock at such time) upon conversion of such Class A Preferred Stock

immediately prior to such reclassification, change, consolidation, merger, sale

or conveyance. The above provisions of this Section 5(c) shall similarly apply

to successive reclassifications, changes, consolidations, mergers, sales or

conveyances.

 

                  (d) The corporation shall at all times reserve and keep

available, for the purpose of effecting the conversion of the shares of Class A

Preferred Stock, the full number of shares of Common Stock deliverable upon the

conversion of all shares of Class A Preferred Stock then outstanding.

 

                  (e) The corporation will pay any and all taxes that may be

payable in respect of the issue or delivery of shares of Common Stock on

conversion of shares of Class A Preferred Stock pursuant hereto. The corporation

shall not, however, be required to pay any tax which may be payable in respect

of any transfer involved in the issue and delivery of shares of Common Stock in

a name other than that in which the shares of Class A Preferred Stock so

converted were registered, and no such issue or delivery shall be made unless

and until the person requesting such issue has paid to the corporation the

amount of any such tax, or has established, to the satisfaction of the

corporation, that such tax has been paid.

 

                  (f) For the purpose of this Section 5, the term "Common Stock"

shall mean the corporation's Common Stock authorized on the date of the original

issue of the Class A Preferred Stock or, in the case of any reclassification or

change of outstanding shares of Common Stock, consolidation, merger, sale or

conveyance of the character referred to in Section 5(c) hereof, the stock,

securities or property provided for in such Section 5(c).

 

                  6. Voting Rights. Except as otherwise provided in the

Certificate of Incorporation (as the same has heretofore been or may hereafter

be amended) or by law, each holder of Class A Preferred Stock shall have ten

(10) votes in respect of each share of Class A Preferred Stock held by him as to

all matters voted upon by the stockholders of this corporation and shall vote

together with the holders of the Common Stock and together with the holders of

any other classes or series of Preferred Stock who are entitled to vote in such

manner and the holders of any other class or series of stock who are entitled to

vote in such manner, and not as a separate class.

 

                  7. General.

 

                  (a) If any other class or series of preferred or special stock

or class or series of Preferred Stock, whether ranking prior to or on a parity

with or junior to Class A Preferred Stock as to dividends or in liquidation,

shall be created, either by or pursuant to authority granted in the Certificate

of Incorporation (as the same has heretofore been or may hereafter be amended),

nothing in this resolution contained shall prevent the holders of any such other

class or series of preferred or special stock or class or series of Preferred

Stock from being given any powers, preferences and relative, participating,

optional and other special rights authorized by law and the Certificate of

Incorporation (as the same has heretofore been or may hereafter be amended).

 

                  (b) The section headings contained in this resolution are for

reference purposes only and shall not affect in any way the meaning of this

resolution.

 

                  NOTE: Pursuant to authority vested in the Board of Directors

of the corporation in accordance with the provisions of this Restated

Certificate of Incorporation, the Board of Directors on November 29, 1989,

adopted resolutions creating a series of 90,000 shares of Preferred Stock

designated as Class B Junior Participating Preferred Stock with the following

preferences and relative, participating, optional or other rights and the

qualifications, limitations or restrictions:

 

                  SECTION 1. Designation and Number. The distinctive designation

of the series of Preferred Stock created shall be "Class B Junior Participating

Preferred Stock" and the number of shares constituting such series shall be

90,000, which number may be increased or decreased (but not below the number of

shares then outstanding) from time to time by the Board of Directors of the

corporation.

 

                  SECTION 2. Dividends and Distributions. Out of the surplus or

net profits of the corporation legally available for the payment of dividends,

the holders of shares of Class B Junior Participating Preferred Stock shall be

entitled to receive, when and as such dividends may be declared by the Board of

Directors, quarterly dividends payable in cash on the tenth days of January,

April, July and October 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 Class

B Junior Participating Preferred Stock, in an amount per share (rounded to the

nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision

for adjustment hereinafter set forth, 100 times the aggregate per share amount

of all cash dividends, and 100 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 or a subdivision of the outstanding shares of

Common Stock (by reclassification or otherwise), declared on the Common Stock,

par value $.50 per share, of the corporation (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 Class B Junior Participating Preferred Stock. In the

event the corporation shall at any time after November 29, 1989 (the "Rights

Declaration Date") (i) pay any dividend on Common Stock payable in shares of

Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the

outstanding Common Stock into a small number of shares or (iv) issue any shares

by reclassification of its shares of Common Stock, then in each such case the

amount to which holders of shares of Class B Junior Participating Preferred

Stock shall have been entitled immediately prior to such event under clause (b)

of the preceding sentence shall be adjusted by multiplying such amount by a

fraction, the numerator of which shall be the number of shares of Common Stock

outstanding immediately after such event and the denominator of which shall be

the number of shares of Common Stock that shall have been outstanding

immediately prior to such event. Dividends payable upon the shares of Class B

Junior Participating Preferred Stock shall not be cumulative, and no right shall

accrue to the holders of Class B Junior Participating Preferred Stock by reason

of the fact that such dividends are not declared in respect of any prior

Quarterly Dividend Payment Date.

 

                  SECTION 3. Distributions to Holders of Class B Junior

Participating Preferred Stock and Common Stock. Out of any surplus or net

profits of the corporation legally available for dividends remaining after full

dividends upon any series of Preferred Stock ranking senior to Class B Junior

Participating Preferred Stock shall have been paid in accordance with the terms

of such series of Preferred Stock and after the corporation shall have complied

with the provisions in respect of any and all amounts then or theretofore

required to be set aside in respect of any sinking fund or purchase fund with

respect to any series of Preferred Stock ranking senior to Class B Junior

Participating Preferred Stock then outstanding and entitled to the benefit of a

sinking fund or purchase fund, and after the corporation shall have made

provision for compliance in respect of the current sinking fund or purchase fund

period for any series of Preferred Stock, then and not otherwise the holders of

Class B Junior Participating Preferred Stock shall be entitled to or may receive

dividends and redemption payments as provided herein. Out of any surplus or net

profits of the corporation legally available for dividends remaining after full

dividends upon the shares of Class B Junior Participating Preferred Stock then

outstanding shall have been paid through the preceding Quarterly Dividend

Payment Date, and after the corporation shall have complied with the provisions

in respect of any and all amounts then or theretofore required (if any) to be

set aside or applied in respect of any redemption payments in respect of shares

of Class B Junior Participating Preferred Stock, then and not otherwise, the

holders of Common Stock and of any series of Preferred Stock ranking subordinate

to Class B Junior Participating Preferred Stock shall, subject to the rights of

any other series of Preferred Stock then outstanding, to Section 2 hereof and to

the provisions of the Restated Certificate of Incorporation, be entitled to

receive such dividends as may from time to time be declared by the Board of

Directors.

 

                  SECTION 4. Voting. (A) Holders of shares of Class B Junior

Participating Preferred Stock shall be entitled to 100 votes for each share of

stock held. In the event the corporation shall at any time after the Rights

Declaration Date (i) pay any dividend on Common Stock payable in shares of

Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the

outstanding Common Stock into a small number of shares or (iv) issue any shares

by reclassification of its shares of Common Stock, then in each such case the

number of votes per share to which holders of shares of Class B Junior

Participating Preferred Stock were entitled immediately prior to such event

shall be adjusted by multiplying such number of votes by a fraction, the

numerator of which shall be the number of shares of Common Stock outstanding

immediately after such event and the denominator of which shall be the number of

shares of Common Stock that were outstanding immediately prior to such event.

Except as provided in this Section 4 and except as may be required by applicable

law, holders of shares of Class B Junior Participating Preferred Stock shall

vote with the Common Stock on all matters required to be submitted to holders of

Common Stock and shall not be entitled to vote as a separate class with respect

to any matter.

 

                  (B) So long as any shares of Class B Junior Participating

Preferred Stock shall be outstanding, the corporation shall not, without the

affirmative vote or written consent of the holders of a majority of the

aggregate number of shares of Class B Junior Participating Preferred Stock at

the time outstanding (or such greater percentage as may be required under

applicable law), acting as a single class, alter or change the powers,

preferences or rights given to the Class B Junior Participating Preferred Stock

by the Certificate of Incorporation so as to affect such powers, preferences or

rights adversely.

 

                  (C) Except as set forth herein or as otherwise required by

law, holders of Class B Junior Participating 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 5. Reacquired Shares. Any shares of Class B Junior

Participating Preferred Stock purchased or otherwise acquired by the corporation

in any manner whatsoever shall be retired and cancelled 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 to be created by resolution or resolutions of

the Board of Directors.

 

                  SECTION 6. Liquidation Rights. (A) Upon any liquidation

(voluntary or otherwise), dissolution or winding up of the corporation

("Liquidation"), the holders of shares of Class B Junior Participating Preferred

Stock shall be entitled to receive out of the assets of the corporation

available for distribution to its stockholders, before any payment or

distribution shall be made on the shares of any series of Preferred Stock

subordinate to Class B Junior Participating Preferred Stock as to assets in the

event of any Liquidation ("Junior Series") or on the Common Stock, the amount of

$75.00 per share (the "Class B Liquidation Preference").

 

                  (B) The shares of Class B Junior Participating Preferred Stock

shall be subordinate to any other series of Preferred Stock (including the Class

A $.05 Non-Cumulative Participating Convertible Preferred Stock, par value $.50

per share (the "Class A Preferred Stock"), as provided for under Section 9

hereof), unless the provisions of such other series provide otherwise, and shall

be preferred over the Common Stock, as to assets in the event of any

Liquidation. In the event of any Liquidation, the holders of the shares of Class

B Junior Participating Preferred Stock shall be entitled to receive, out of the

assets of the corporation available for distribution to its stockholders (after

payment in full of all amounts payable in respect of any series of Preferred

Stock ranking senior to Class B Junior Participating Preferred Stock), an amount

determined as provided in paragraph (A) of this Section 6 for every share of

Class B Junior Participating Preferred Stock before any distribution of assets

shall be made to the holders of any Junior Series or to the holders of the

Common Stock. If, in the event of any Liquidation, the holders of the Class B

Junior Participating Preferred Stock shall have received all the amounts to

which they shall be entitled in accordance with the terms of paragraph (A) of

this Section 6, no additional distributions shall be made to the holders of

shares of Class B Junior Participating Preferred Stock unless, prior thereto,

the holders of shares of Common Stock have received an amount per share (the

"Common Adjustment") equal to the quotient obtained by dividing (i) the Class B

Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in

paragraph (C) of this Section 6 to reflect such events as stock splits, stock

dividends and recapitalizations with respect to the Common Stock) (such number

in clause (ii) being referred to herein as the "Adjustment Number"). Following

the payment of the full amount of the Common Adjustment in respect of all

outstanding shares of Common Stock, holders of Class B Junior Participating

Preferred Stock and holders of shares of Common Stock shall receive their

ratable and proportionate share of the remaining assets to be distributed to the

holders of Class B Junior Participating Preferred Stock and Common Stock in the

ratio of the Adjustment Number to 1 with respect to such Preferred Stock and

Common Stock, on a per share basis, respectively. If, upon any Liquidation, the

amounts payable on or with respect to Class B Junior Participating Preferred

Stock and any series of Preferred Stock ranking on a parity with Class B Junior

Participating Preferred Stock are not paid in full, the holders of shares of

such Preferred Stock shall share ratably in any distribution of assets according

to the respective amounts which would be payable in respect of the shares held

by them upon such distribution if all amounts payable on or with respect to such

Preferred Stock were paid in full.

 

                  (C) In the event the corporation shall at any time after the

Rights Declaration Date (i) pay any dividend on Common Stock payable in shares

of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the

outstanding Common Stock into a smaller number of shares or (iv) issue any

shares by reclassification of its shares of Common Stock, then in each such case

the Adjustment Number in effect immediately prior to such event shall be

adjusted by multiplying such Adjustment Number by a fraction the numerator of

which shall be the number of shares of Common Stock outstanding immediately

after such event and the denominator of which shall be the number of shares of

Common Stock that were outstanding immediately prior to such event.

 

                  (D) Neither the sale, lease or exchange (for cash, shares of

stock, securities or other consideration) of all or substantially all the

property and assets of the corporation nor the merger or consolidation of the

corporation into or with any other corporation or the merger or consolidation of

any other corporation into or with the corporation shall be deemed to be a

Liquidation for the purposes of this Section 6.

 

                  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 shall be exchanged for or changed into other

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

shares of Class B Junior Participating Preferred Stock shall at the same time be

similarly exchanged or changed in an amount per share (subject to the provision

for adjustment hereinafter set forth) equal to 100 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 after the Rights

Declaration Date (i) pay any dividend in Common Stock payable in shares of

Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the

outstanding Common Stock into a smaller number of shares or (iv) issue any

shares by reclassification of its 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 Class B Junior Participating Preferred Stock shall be

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

be the number of shares of Common Stock outstanding immediately after such event

and the denominator of which shall be the number of shares of Common Stock that

were outstanding immediately prior to such event.

 

                  SECTION 8. Optional Redemption. (A) The corporation shall have

the option to redeem shares of Class B Junior Participating Preferred Stock in

whole or in part at any time at a redemption price per share equal to, subject

to the provision for adjustment hereinafter set forth, 100 times the "current

per share market price," as hereinafter defined, of the Common Stock on the date

of the mailing of the notice of redemption, together with unpaid accumulated

dividends to the date of such redemption. In the event the corporation shall at

any time after the Rights Declaration Date (i) pay any dividend on Common Stock

payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,

(iii) combine the outstanding Common Stock into a small number of shares or (iv)

issue any shares by reclassification of its shares of Common Stock, then in each

such case the amount to which holders of shares of Class B Junior Participating

Preferred Stock shall be otherwise entitled immediately prior to such event

under the immediately preceding sentence shall be adjusted by multiplying such

amount by a fraction the numerator of which shall be the number of shares of

Common Stock outstanding immediately after such event and the denominator of

which shall be the number of shares of Common Stock that were outstanding

immediately prior to such event. The "current per share market price" on any

date shall be deemed to be the average of the closing price per share of such

Common Stock for the 10 consecutive Trading Days (as such term is hereinafter

defined) immediately prior to such date. The closing price for each day shall be

the last sale price, regular way, or, in case no such sale shall take place on

such day, the average of the closing bid and asked prices, regular way, in

either case as reported in the principal consolidated transaction reporting

system with respect to securities listed or admitted to trading on the principal

national securities exchange on which the Common Stock shall be listed or

admitted to trading or, if the Common Stock shall not be listed or admitted to

trading on any national securities exchange, the last quoted price or, if not so

quoted the average of the high bid and low asked prices in the over-the-counter

market, as reported by the National Association of Securities Dealers, Inc.

Automated Quotation System ("NASDAQ") or such other system then in use or, if on

any such date the Common Stock shall not be quoted by any such organization, the

average of the closing bid and asked prices as furnished by a professional

market maker making a market in the Common Stock selected by the Board of

Directors of the corporation or, if on such date no such market maker shall be

making a market in the Common Stock, the fair value of the Common Stock on such

date as determined in good faith by the Board of Directors of the corporation.

The term "Trading Day" shall mean a day on which the principal national

securities exchange on which the Common Stock shall be listed or admitted to

trading shall be open for the transaction of business or, if the Common Stock

shall not be listed or admitted to trading on any national securities exchange,

any day on which trading takes place in the over-the-counter market and prices

reflecting such trading are reported by NASDAQ or such other system then in use

or, if the shares of Common Stock are not quoted by any such organization, a

Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions in

the State of New York shall not be authorized or obligated by law or executive

order to close.

 

                  (B) Notice of any such redemption shall be given by mailing to

the holders of the Class B Junior Participating Preferred Stock a notice of such

redemption, first class postage prepaid, not later than the thirtieth day and

not earlier than the sixtieth day before the date fixed for redemption, at their

last address as the same shall appear upon the books of the corporation. Any

notice which shall be mailed in the manner herein provided shall be conclusively

presumed to have been duly given, whether or not the stockholder shall have

received such notice, and failure duly to give such notice by mail, or any

defect in such notice, to any holder of Class B Junior Participating Preferred

Stock shall not affect the validity of the proceedings for the redemption of

such Class B Junior Participating Preferred Stock.

 

                  (C) If less than all the outstanding shares of the Class B

Junior Participating Preferred Stock are to be redeemed by the corporation, the

number of shares to be redeemed shall be determined by the Board of Directors

and the shares to be redeemed shall be determined by lot or pro rata or in such

fair and equitable other manner as may be prescribed by resolution of the Board

of Directors.

 

                  (D) The notice of redemption to each holder of Class B Junior

Participating Preferred Stock shall specify (a) the number of shares of Class B

Junior Participating Preferred Stock of such holder to be redeemed, (b) the date

fixed for redemption, (c) the redemption price and (d) the place of payment of

the redemption price.

 

                  (E) If any such notice of redemption shall have been duly

given or if the corporation shall have given to the bank or trust company

hereinafter referred to irrevocable written authorization promptly to give or

complete such notice, and if on or before the redemption date specified therein

the funds necessary for such redemption shall have been deposited by the

corporation with the bank or trust company designated in such notice, doing

business in the United States of America and having a capital, surplus and

undivided profits aggregating at least $100,000,000 according to its last

published statement of condition, in trust for the benefit of the holders of

Class B Junior Participating Preferred Stock called for redemption, then,

notwithstanding that any certificate for such shares so called for redemption

shall not have been surrendered for cancellation, from and after the time of

such deposit all such shares called for redemption shall no longer be deemed

outstanding, all rights with respect to such shares shall no longer be deemed

outstanding and all rights with respect to such shares shall forthwith cease and

terminate, except the right of the holders thereof to receive from such bank or

trust company at any time after the time of such deposit the funds so deposited,

without interest. In case less than all the shares represented by any

surrendered certificate shall be redeemed, a new certificate shall be issued

representing the unredeemed shares. Any interest accrued on such funds so

deposited shall be paid to the corporation from time to time. Any funds so

deposited and unclaimed at the end of six years from such redemption date shall

be repaid to the corporation, after which the holders of shares of Class B

Junior Participating Preferred Stock called for redemption shall look only to

the corporation for payment thereof; provided, however, that any funds so

deposited which shall not be required for redemption because of the exercise of

any privilege of conversion or exchange subsequent to the date of deposit shall

be repaid to the corporation forthwith.

 

                  SECTION 9. Ranking. The Class B Junior Participating Preferred

Stock shall rank junior to all other series of Preferred Stock as to the payment

of dividends and the distribution of assets, unless the terms of any such series

shall provide otherwise. Notwithstanding anything to the contrary, the Class

B Junior Participating Preferred Stock shall rank junior to the Class A

Preferred Stock.

 

                  SECTION 10. Fractional Shares. Class B Junior Participating

Preferred Stock may be issued in fractions of a share which shall entitle the

holder, in proportion to such holder's fractional shares, to exercise voting

rights, receive dividends, participate in distributions and to have the benefit

of all other rights of holders of Class B Junior Participating Preferred Stock.

 

                  FIFTH: The minimum amount of capital with which the

corporation will commence business is One Thousand Dollars ($1,000.00).

 

                  SIXTH:   The corporation is to have perpetual existence.

 

                  SEVENTH: The private property of the stockholders shall not be

subject to the payment of corporate debts to any extent whatever.

 

                  EIGHTH: In furtherance and not in limitation of the powers

conferred by statute, the Board of Directors is, subject to the provisions of

other Articles of this Certificate of Incorporation, expressly authorized:

 

                  To make, alter or repeal the By-Laws of the corporation.

 

                  To authorize and cause to be executed mortgages and liens upon

the real and personal property of the corporation.

 

                  To set apart out of any of the funds of the corporation

available for dividends a reserve or reserves for any proper purpose and to

abolish any such reserve in the manner in which it was created.

 

                  By resolution passed by a majority of the whole board, to

designate one or more committees, each committee to consist of two or more of

the directors of the corporation, which, to the extent provided in the

resolution or in the By-Laws of the corporation, shall have and may exercise the

powers of the Board of Directors in the management of the business and affairs

of the corporation, and may authorize the seal of that corporation to be affixed

to all papers which may require it. Such committee or committees shall have such

name or names as may be stated in the By-Laws of the corporation or as may be

determined from time to time by resolution adopted by the Board of Directors.

 

                  When and as authorized by the affirmative vote of the holders

of a majority of the stock issued and outstanding having voting power given at a

stockholders' meeting duly called for that purpose to sell, lease or exchange

all of the property and assets of the corporation, including its good will and

its corporate franchises, upon such terms and conditions and for such

consideration, which may be in whole or in part shares of stock in, and/or other

securities of, any other corporation or corporations, as its Board of Directors

shall deem expedient and for the best interests of the corporation.

 

                  NINTH: Whenever a compromise or arrangement is proposed

between this corporation and its creditors or any class of them and/or between

this corporation and its stockholders or any class of them, any court of

equitable jurisdiction within the State of Delaware may, on the application in a

summary way of this corporation or of any creditor or stockholder thereof, or on

the application of any receiver or receivers appointed for this corporation

under the provisions of Section 291 of Title 8 of the Delaware Code, or on the

application of trustees in dissolution or of any receiver or receivers appointed

for this corporation under the provisions of Section 279 of Title 8 of the

Delaware Code, order a meeting of the creditors or class of creditors, and/or of

the stockholders or class of stockholders of this corporation, as the case may

be, to be summoned in such manner as the said court directs. If a majority in

number representing three-fourths in value of the creditors or class of

creditors, and/or of the stockholders or class of stockholders of this

corporation, as the case may be, agree to any compromise or arrangement and to

any reorganization of this corporation as consequence of such compromise or

arrangement, the said compromise or arrangement and the said reorganization

shall, if sanctioned by the court to which the said application has been made,

be binding on all the creditors or class of creditors, and/or on all the

stockholders or class of stockholders, of this corporation, as the case may be

and also on this corporation.

 

                  TENTH: Meetings of stockholders may be held outside the State

of Delaware, if the By-Laws so provide. The books of the corporation may be kept

(subject to any provision contained in the statutes) 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. Elections of directors

need not be by ballot unless the By-Laws of the corporation shall so provide.

 

                  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, and the power of stockholders to consent in writing, without

a meeting, to the taking of any action is specifically denied.

 

                  ELEVENTH: Subject to the provisions of other Articles of this

Certificate of Incorporation, the corporation reserves the right to amend,

alter, change or repeal any provision contained in this Certificate of

Incorporation, in the manner now or hereafter prescribed by statute, and all

rights conferred upon stockholders herein are granted subject to this

reservation.

 

                  TWELFTH:

 

                  (a) This corporation shall, to the fullest extent permitted by

Delaware law, as in effect from time to time (but, in the case of any amendment

of the Delaware General Corporation Law, only to the extent that such amendment

permits this corporation to provide broader indemnification rights than said law

permitted this corporation to provide prior to such amendment), indemnify each

person who is or was a director or officer of this corporation or of any of its

wholly-owned subsidiaries at any time on or after August 1, 1988, who was or is

a party or is threatened to be made a party to any threatened, pending or

completed action, suit or proceeding, or was or is involved in any action, suit

or proceeding, whether civil, criminal, administrative or investigative

(hereinafter a "proceeding"), by reason of the fact that he or she is or was a

director, officer, employee or agent of this corporation or of any of its

wholly-owned subsidiaries, or is or was at any time serving, at the request of

this corporation, any other corporation, partnership, joint venture, trust,

employee benefit plan or other enterprise in any capacity against all expense,

liability and loss (including, but not limited to, attorneys' fees, judgments,

fines, excise taxes or penalties (with respect to any employee benefit plan or

otherwise), and amounts paid or to be paid in settlement) incurred or suffered

by such director or officer in connection with such proceeding; provided,

however, that, except as provided in Paragraph (e) of this Article TWELFTH, this

corporation shall not be obligated to indemnify any person under this Article

TWELFTH in connection with a proceeding (or part thereof) if such proceeding (or

part thereof) was not authorized by the Board of Directors of this corporation

and was initiated by such person against (i) this corporation or any of its

subsidiaries, (ii) any person who is or was a director, officer, employee or

agent of this corporation or any of its subsidiaries and/or (iii) any person or

entity which is or was controlled, controlled by, or under common control with,

this corporation or has or had business relations with this corporation or any

of its subsidiaries.

 

                  (b) The right to indemnification conferred in this Article

TWELFTH shall be a contract right, shall continue as to a person who has ceased

to be a director or officer of this corporation or of any of its wholly-owned

subsidiaries and shall inure to the benefit of his or her heirs, executors and

administrators, and shall include the right to be paid by this corporation the

expenses incurred in connection with the defense or investigation of any such

proceeding in advance of its final disposition; provided, however, that, if and

to the extent that Delaware law so requires, the payment of such expenses in

advance of the final disposition of a proceeding shall be made only upon

delivery to this corporation of an undertaking, by or on behalf of such director

or officer or former director or officer, to repay all amounts so advanced if it

shall ultimately be determined that such director or officer or former director

or officer is not entitled to be indemnified by this corporation.

 

                  (c) The corporation's obligation to indemnify and to pay

expenses in advance of the final disposition of a proceeding under this Article

TWELFTH shall arise, and all rights and protections granted to directors and

officers under this Article TWELFTH shall vest, at the time of the occurrence of

the transaction or event to which any proceeding relates, or at the time that

the action or conduct to which any proceeding relates was first taken or engaged

in (or omitted to be taken or engaged in), regardless of when any proceeding is

first threatened, commenced or completed.

 

                  (d) Notwithstanding any other provision of this Restated

Certificate of Incorporation or the By-Laws of this corporation, no action by

this corporation, either by amendment to or repeal of this Article TWELFTH or

the By-Laws of this corporation or otherwise shall diminish or adversely affect

any right or protection granted under this Article TWELFTH to any director or

officer or former director or officer of this corporation or of any of its

wholly-owned subsidiaries which shall have become vested as aforesaid prior to

the date that any such amendment, repeal or other corporate action is taken.

 

                  (e) If a claim for indemnification and/or for payment of

expenses in advance of the final disposition of a proceeding arising under this

Article TWELFTH is not paid in full by this corporation within thirty days after

a written claim has been received by this corporation, the claimant may at any

time thereafter bring suit against this corporation to recover the unpaid amount

of the claim and, if successful in whole or in part, the claimant shall be

entitled to be paid also the expense of prosecuting such claim.

 

                  (f) The right to indemnification and the payment of expenses

incurred in connection with the defense or investigation of a proceeding in

advance of its final disposition conferred in this Article TWELFTH shall not be

exclusive of any other right which any person may have or hereafter acquire

under any statute, provision of the Restated Certificate of Incorporation,

By-Laws, agreement, vote of stockholders or disinterested directors or

otherwise. This corporation may also indemnify all other persons to the fullest

extent permitted by Delaware law.

 

                  (g) The provisions of this Article TWELFTH shall apply to any

proceeding commenced on or after August 1, 1988. The provisions of Article

TWELFTH of this corporation's Restated Certificate of Incorporation, as in

effect on July 31, 1988, shall govern indemnification in respect of any

proceeding commenced prior to August 1, 1988.

 

                  THIRTEENTH:

 

                  A. Unless the conditions set forth in Subparagraphs (1) or (2)

of this Paragraph A are satisfied, the affirmative vote or consent of the

holders of not less than two-thirds of the outstanding shares of stock of the

corporation entitled to vote in elections of directors, considered for the

purposes of this Article THIRTEENTH as one class, shall be required for the

adoption or authorization of a business combination (as hereinafter defined)

with any other entity (as hereinafter defined) if, as of the record date for the

determination of stockholders entitled to notice thereof and to vote thereon or

consent thereto, such other entity is the beneficial owner (as hereinafter

defined), directly or indirectly, of shares of stock of the corporation

entitling such other entity to exercise more than twenty-five percent (25%) of

the total voting power of all classes of stock of the corporation entitled to

vote in elections of directors, considered for the purposes of this Article

THIRTEENTH as one class. Such two-thirds voting requirement shall not be

applicable if:

 

                           (1) The business combination was approved by the

                  Board of Directors of the corporation; provided that a

                  majority of the members of the Board of Directors acting upon

                  such matter shall be continuing directors (as hereinafter

                  defined); or

 

                           (2) All of the following conditions are satisfied:

 

                                    (a) The cash, or fair market value of the

                  property, securities or other consideration, to be received

                  per share by holders of Common Stock of the corporation in

                  such business combination bears the same or a greater

                  percentage relationship to the market price of the

                  corporation's Common Stock immediately prior to the

                  announcement of such business combination as the highest per

                  share price (including brokerage commissions and/or soliciting

                  dealers' fees) which such other entity has theretofore paid

                  for any of the shares of the corporation's Common Stock

                  already owned by it bears to the market price of the Common

                  Stock of the corporation immediately prior to the commencement

                  of acquisition of the corporation's Common Stock by such other

                  entity;

 

                                    (b) The cash, or fair market value of the

                  property, securities or other consideration, to be received

                  per share by holders of Common Stock of the corporation in

                  such business combination (i) is not less than the highest per

                  share price (including brokerage commissions and/or soliciting

                  dealers' fees) paid by such other entity in acquiring any of

                  its holdings of the corporation's Common Stock, and (ii) is

                  not less than the total earnings per share of Common Stock of

                  the corporation for the four full consecutive fiscal quarters

                  immediately preceding the record date for solicitation of

                  votes on such business combination, multiplied by the then

                  price/earnings multiple (if any) of such other entity as

                  customarily computed and reported in the financial community;

 

                                    (c) After such other entity has acquired

                  more than a twenty-five percent (25%) interest and prior to

                  the consummation of such business combinations (i) such other

                  entity shall have taken steps to insure that the corporation's

                  Board of Directors included at all times representation by

                  continuing directors proportionate to the shares of Common

                  Stock of the corporation held by public stockholders not

                  affiliated with such other entity (with a continuing director

                  to occupy any resulting fractional Board position); (ii) there

                  shall have been no reduction in the rate of dividends payable

                  on the corporation's Common Stock except as necessary to

                  insure that a quarterly dividend payment does not exceed 15%

                  of the net income of the corporation for the four full

                  consecutive fiscal quarters immediately preceding the

                  declaration date of such dividend, or except as may

                  have been approved by a unanimous vote of the directors; (iii)

                  such other entity shall not have acquired any newly issued

                  shares of stock, directly or indirectly, from the corporation

                  (except upon conversion of convertible securities acquired by

                  it prior to obtaining more than a twenty-five percent (25%)

                  interest or as a result of a pro rata stock dividend or stock

                  split); and (iv) such other entity shall not have acquired any

                  additional shares of the corporation's outstanding Common

                  Stock or securities convertible into Common Stock except as a

                  part of the transaction which results in such other entity

                  acquiring its more than twenty-five percent (25%) interest;

 

                                    (d) Such other entity shall not have (i)

                  received the benefit, directly or indirectly (except

                  proportionately as a stockholder) of any loans, advances,

                  guarantees, pledges or other financial assistance or tax

                  credits provided by the corporation, or (ii) made any major

                  change in the corporation's business or equity capital

                  structure without the unanimous approval of the directors, in

                  either case prior to the consummation of such business

                  combination; and

 

                                    (e) A proxy statement complying with the

                  requirements of the Securities Exchange Act of 1934 shall be

                  mailed to public stockholders of the corporation for the

                  purpose of soliciting stockholder approval of such business

                  combination and shall contain at the front thereof, in a

                  prominent place, any recommendations as to the advisability

                  (or inadvisability) of the business combination which the

                  continuing directors, or any of them, may choose to state and,

                  if deemed advisable by a majority of the continuing directors,

                  an opinion of a reputable investment banking firm as to the

                  fairness (or not) of the terms of such business combination,

                  from the point of view of the remaining public stockholders of

                  the corporation (such investment banking firm to be selected

                  by a majority of the continuing directors and to be paid a

                  reasonable fee for their services by the corporation upon

                  receipt of such opinion).

 

                  The provisions of this Article THIRTEENTH shall also apply to

a business combination with any other entity which at any time has been the

beneficial owner, directly or indirectly, of shares of stock of the corporation

entitling such other entity to exercise more than twenty-five percent (25%) of

the total voting power of all classes of stock of the corporation entitled to

vote in elections of directors, considered for the purposes of this Article

THIRTEENTH as one class, notwithstanding the fact that such other entity has

reduced its stockholdings to twenty-five percent (25%) or less if, as of the

record date for the determination of stockholders entitled to notice of and to

vote on or consent to the business combination, such other entity is an

"affiliate" of the corporation (as hereinafter defined).

 

                  B. As used in this Article THIRTEENTH, (1) the term "other

entity" shall include any individual, corporation, partnership, person or other

entity and any other entity with which it or its "affiliate" or "associate" (as

defined below) has any agreement, arrangement or understanding, directly or

indirectly, for the purpose of acquiring, holding, voting or disposing of stock

of the corporation, or which is its "affiliate" or "associate" as those terms

are defined in Rule 12b-2 (or any successor rule) of the General Rules and

Regulations under the Securities Exchange Act of 1934, together with the

successors and assigns of such persons in any transaction or series of

transactions not involving a public offering of the corporation's stock within

the meaning of the Securities Act of 1933; (2) beneficial ownership shall be

determined pursuant to Rule 13d-3 (or any successor rule) of the General Rules

and Regulations under the Securities Exchange Act of 1934 and shall include any

shares of stock of the corporation which the other entity has the right to

acquire pursuant to any agreement, or upon exercise of conversion rights,

warrants or options, or otherwise; (3) that term "business combination" shall

include (a) any merger or consolidation of the corporation with or into any

other entity, (b) the sale, lease, exchange, transfer or other disposition of

all or any substantial part of the assets of the corporation or of a subsidiary

to any other entity, (c) any merger or consolidation of any other entity with or

into this corporation or a subsidiary of this corporation, (d) the sale, lease,

exchange, transfer or other disposition of all or any substantial part of the

assets of any other entity to this corporation or a subsidiary of this

corporation, (e) the issuance of any securities of this corporation or a

subsidiary of this corporation to any other entity, (f) any agreement, contract

or other arrangement with any other entity providing for any of the transactions

described in this Subparagraph (3); (4) the term "substantial part" shall mean

more than 10% of the total consolidated assets of the corporation in question,

at the end of its most recent fiscal year ending prior to the time the

determination is made; (5) the term "continuing director" shall mean a member of

the Board of Directors of the corporation who was elected by the public

stockholders prior to the time that such other entity acquired shares of stock

of the corporation entitling such other entity to exercise in excess of ten

percent (10%) of the total voting power of all classes of stock of the

corporation entitled to vote in the election of directors, or a person

recommended to succeed a continuing director by a majority of continuing

directors; and (6) for the purposes of Subparagraphs 2(a) and (b) of Paragraph A

of this Article THIRTEENTH the term "other consideration to be received" shall

include, without limitation, Common Stock of the corporation retained by its

existing public stockholders in the event of a business combination with such

other entity in which the corporation is the surviving corporation.

 

                  C. A majority of the continuing directors shall have the power

and duty to determine for the purposes of this Article THIRTEENTH, on the basis

of information known to them, whether (1) such other entity beneficially owns

shares of stock of the corporation entitling such other entity to exercise more

than twenty-five percent (25%) or ten percent (10%), respectively, of the total

voting power of all classes of stock of the corporation entitled to vote in

elections of directors, (2) an other entity is an "affiliate" or "associate" of

another, (3) an other entity has an agreement, arrangement or understanding with

another or (4) the fair market value of property, securities or other

consideration (other than cash) to be received by holders of Common Stock of the

corporation.

 

                  D. No amendment to the Certificate of Incorporation of the

corporation shall amend, alter, change or repeal any of the provisions of this

Article THIRTEENTH, the introductory clause of Article EIGHTH or of Article

ELEVENTH unless the amendment effecting such amendment, alteration, change or

repeal shall receive the affirmative vote or consent of the holders of not less

than two-thirds of the outstanding shares of stock of the corporation entitled

to vote in elections of directors, considered for the purposes of this Article

THIRTEENTH as one class; provided that this Paragraph D shall not apply to, and

such two-thirds vote or consent shall not be required for, any amendment,

alteration, change or repeal recommended to the stockholders by two-thirds of

the whole Board of Directors of the corporation; provided that a majority of the

members of the Board of Directors acting upon such matter shall be continuing

directors.

 

                  E. Nothing contained in this Article THIRTEENTH shall be

construed to relieve any other entity from any fiduciary obligation imposed by

law.

 

                  FOURTEENTH:

 

                  A. The property, business and affairs of the corporation shall

be managed and controlled by the Board of Directors. The number of directors of

the corporation (exclusive of directors to be elected by the holders of any one

or more classes or series of Preferred Stock of the corporation or any other

class or series of stock of the corporation, which may at some time be

outstanding, voting separately as a class or classes, and exclusive of directors

to be elected by the holders of Common Stock, voting as a class separately from

the holders of any other class or series of stock, pursuant to the provisions of

Paragraph B of this Article FOURTEENTH) shall not be less than three nor more

than fourteen, shall be initially fixed at seven and may thereafter be changed

from time to time by action of not less than a majority of the members of the

Board then in office.

 

                  B. So long as any shares of the Class A $.05 Non-Cumulative

Participating Convertible Preferred Stock, par value $.50 per share (the "Class

A Preferred Stock"), of the corporation are outstanding, the holders of Common

Stock, voting as a class separately from the holders of any other class or

series of stock, shall be entitled to elect at each annual meeting of

stockholders the greater of (i) two directors, or (ii) that number of directors

which constitutes twenty-five percent (25%) of the total number of directors to

be in office as members of the Board of Directors of the corporation immediately

subsequent to such annual meeting (including the directors to be elected by the

holders of Common Stock, voting as a class separately from the holders of any

other class or series of stock, pursuant to the provisions of this Paragraph B

of Article FOURTEENTH) and, if such twenty-five percent (25%) is not a whole

number, then the holders of Common Stock shall be entitled to elect the nearest

higher whole number of directors that is at least equal to twenty-five percent

(25%) of the total number of directors to be in office as members of the Board

of Directors of the corporation immediately subsequent to such annual meeting

(including the directors to be elected by the holders of Common Stock, voting as

a class separately from the holders of any other class or series of stock,

pursuant to the provisions of this Paragraph B of Article FOURTEENTH). The

members of the Board of Directors of the corporation who have been or may be (i)

elected by the holders of Common Stock, voting as a class separately from the

holders of any other class or series of stock, pursuant to the provisions of

this Paragraph B of Article FOURTEENTH, and (ii) chosen to fill any vacancies or

newly created directorships resulting from an increase in the authorized number

of directors, pursuant to the provisions of the first sentence of Paragraph E of

this Article FOURTEENTH, are hereinafter referred to as "Common Directors".

 

                  C. The Board of Directors (exclusive of directors to be

elected by the holders of any one or more classes or series of Preferred Stock

of the corporation or any other class or series of stock of the corporation,

which may at some time be outstanding, voting separately as a class or classes,

and exclusive of Common Directors) shall be divided into three classes, with the

term of office of one class expiring each year. At the annual meeting of

stockholders in 1980 three directors of the first class shall be elected to hold

office for a term expiring at the next succeeding annual meeting, two directors

of the second class shall be elected to hold office for a term expiring at the

second succeeding annual meeting and two directors of the third class shall be

elected to hold office for a term expiring at the third succeeding annual

meeting. Subject to the provisions of Paragraph E of this Article FOURTEENTH, at

each annual meeting of stockholders the respective successors to the class of

directors whose term shall then expire shall be elected to hold office for a

term expiring at the third succeeding annual meeting. The members of the Board

of Directors of the corporation who have been or may be (i) elected by the

holders of Common Stock, Class A Preferred Stock, any other classes or series of

Preferred Stock who are entitled to vote in such manner and any other class or

series of stock who are entitled to vote in such manner, voting together as a

single class, and (ii) chosen to fill vacancies or newly created directorships

resulting from an increase in the authorized number of directors, pursuant to

the provisions of the second sentence of Paragraph E of this Article FOURTEENTH,

are hereinafter referred to as "General Directors".

 

                  D. So long as any shares of the Class A Preferred Stock of the

corporation are outstanding, if and whenever the Board of Directors shall

increase the authorized number of directors to be in office as members of the

Board of Directors of the corporation, then and in such event, the Board of

Directors shall allocate the number of newly created directorships resulting

from such increase, as between Common Directors and General Directors, in such

proportion that the number of Common Directors immediately subsequent to such

increase in the authorized number of directors shall constitute twenty-five

percent (25%) of the total number of directors authorized to be in office as

members of the Board of Directors of the corporation immediately subsequent to

such increase in the authorized number of directors (including Common Directors)

and, if such twenty-five percent (25%) is not a whole number, then the number of

Common Directors immediately subsequent to such increase in the authorized

number of directors shall be the nearest higher whole number of directors that

is at least equal to twenty-five percent (25%) of the total number of directors

authorized to be in office as members of the Board of Directors of the

corporation immediately subsequent to such increase in the authorized number of

directors (including Common Directors).

 

                  E. Any vacancy, for any reason, in the office of a Common

Director and any newly created directorships resulting from an increase in the

number of Common Directors pursuant to the provisions of Paragraph D of this

Article FOURTEENTH shall be filled by the members of the Board of Directors who

are Common Directors, acting by not less than a majority of such Common

Directors then in office, or by a sole remaining Common Director. Any Common

Directors so chosen to fill any such vacancies or newly created directorships

shall hold office until the next succeeding annual meeting of stockholders of

the corporation and, provided that shares of the Class A Preferred Stock are

then outstanding, until their respective successors shall be duly elected and

qualified. Any vacancy, for any reason, in the office of a General Director and

any newly created directorships resulting from an increase in the number of

General Directors pursuant to the provisions of Paragraph D of this Article

FOURTEENTH shall be filled by the Board of Directors, acting by not less than a

majority of the directors then in office, although less than a quorum, or by a

sole remaining director. Any General Directors so chosen to fill any such

vacancies or newly created directorships shall hold office until the next

election of the class for which such General Directors shall have been chosen

and until their respective successors shall be duly elected and qualified. No

decrease in the number of directors shall shorten the term of any incumbent

director.

 

                  F. Notwithstanding any other provisions of this Article

FOURTEENTH, and except as otherwise required by law, whenever the holders of any

one or more classes or series of Preferred Stock shall have the right, voting

separately as a class or classes, to elect one or more directors of the

corporation, or whenever the holders of Common Stock shall have the right,

voting as a class separately from the holders of any other class or series of

stock, to elect two or more directors of the corporation pursuant to the

provisions of Paragraph B of this Article FOURTEENTH, the terms of the director

or directors elected by such holders shall expire at the next succeeding annual

meeting of stockholders.

 

                  G. Notwithstanding any other provisions of this Certificate of

Incorporation or By- Laws of the corporation (and notwithstanding the fact that

some lesser percentage may be specified by law, this Certificate of

Incorporation or the By-Laws of the corporation), (A) any General Director or

all General Directors of the corporation may be removed only with cause and only

by the affirmative vote of the holders of shares of stock of the corporation

entitled to cast a majority of the votes entitled to be cast by the holders of

all classes of stock of the corporation entitled to vote generally in elections

of directors, considered for the purposes of this Paragraph G of Article

FOURTEENTH as one class, and (B) any Common Director or all Common Directors may

be removed (i) with cause only by the affirmative vote of the holders of shares

of stock of the corporation entitled to cast a majority of the votes entitled to

be cast by the holders of all classes of stock of the corporation entitled to

vote generally in elections of directors, considered for the purposes of this

Paragraph G of Article FOURTEENTH as one class, and (ii) without cause only by

the affirmative vote of the holders of a majority of the outstanding shares of

Common Stock of the corporation, voting as a class separately from the holders

of any other class or series of stock; provided, however, that if there is any

"other entity" which is the "beneficial owner" (as such terms are defined in

Article THIRTEENTH of this Certificate of Incorporation), directly or

indirectly, of shares of stock of the corporation entitling such other entity to

exercise more than twenty-five percent (25%) of the total voting power of all

classes of stock of the corporation entitled to vote generally in elections of

directors, considered for the purposes of this Paragraph G of Article FOURTEENTH

as one class, any such majority vote referred to in clauses (A) or (B) above

must include the affirmative vote of a majority of the outstanding shares of

Common Stock not beneficially owned by such other entity. Notwithstanding the

foregoing, and except as otherwise required by law, whenever the holders of any

one or more classes or series of Preferred Stock shall have the right, voting

separately as a class or classes, to elect one or more directors of the

corporation, the provisions of this Paragraph G of Article FOURTEENTH shall not

apply with respect to the director or directors elected by such holders of

Preferred Stock.

 

                  FIFTEENTH: Nominations for the election of directors may be

made by the Board of Directors or by any stockholder entitled to vote for the

election of directors. Such nominations other than by the Board of Directors

shall be made by notice in writing, delivered or mailed by first class United

States mail, postage prepaid, to the Secretary of the corporation not less than

60 days prior to the first anniversary of the date of the last meeting of

stockholders of the corporation called for the election of directors.

 

                  Each notice shall set forth (i) the name, age, business

address and, if known, residence address of each nominee proposed in such

notice, (ii) the principal occupation or employment of each such nominee, (iii)

the number of shares of stock of the corporation which are beneficially owned by

each such nominee, and (iv) such other information as would be required by the

Federal Securities Laws and the Rules and Regulations promulgated thereunder in

respect of an individual nominated as a director of the corporation and for whom

proxies are solicited by the Board of Directors of the corporation.

 

                  The Chairman of any meeting of stockholders may, if the facts

warrant, determine and declare to the meeting that a nomination was not made in

accordance with the foregoing procedure, and if he should so determine, he shall

so declare to the meeting and the defective nomination shall be disregarded.

 

                  SIXTEENTH: Special meetings of the stockholders may be called

only by the Board of Directors and the power of stockholders to call a special

meeting for any and all purposes whatsoever is specifically denied.

 

                  SEVENTEENTH: Notwithstanding any other provision of this

Certificate of Incorporation or the By-Laws of the corporation (and

notwithstanding the fact that some lesser percentage may be specified by law,

this Certificate of Incorporation or the By-Laws of the corporation), the

affirmative vote of the holders of not less than 75% of the outstanding shares

of capital stock of the corporation entitled to vote generally in the election

of directors (considered for this purpose as one class) shall be required to

amend, alter, change or repeal Articles TENTH, FOURTEENTH, FIFTEENTH, SIXTEENTH

and this Article SEVENTEENTH of this Certificate of Incorporation, subject to

the provisions of any series of Preferred Stock which may at the time be

outstanding; provided, however, that if there is any "other entity" which is the

"beneficial owner" (as such terms are defined in Article THIRTEENTH of this

Certificate of Incorporation), directly or indirectly, of shares of stock of the

corporation entitling such other entity to exercise more than twenty-five

percent (25%) of the total voting power of all classes of stock of the

corporation entitled to vote in elections of directors, considered for the

purposes of this Article SEVENTEENTH as one class, such 75% vote must include

the affirmative vote of a majority of the outstanding shares of Common Stock not

beneficially owned by such other entity; provided further that the provisions of

this Article SEVENTEENTH shall not apply to, and only such vote as shall be

required by statute shall be required for, any amendment, alteration, change or

repeal recommended to the stockholders by two-thirds of the whole Board of

Directors of the corporation, provided that and so long as a majority of the

members of the Board of Directors acting upon such matter shall be continuing

directors (as defined in Article THIRTEENTH of this Certificate of

Incorporation).

 

                  EIGHTEENTH: A director of this corporation shall not be

personally liable to the corporation or its stockholders for monetary damages

for breach of fiduciary duty as a director, except: (i) for any breach of the

director's duty of loyalty to the corporation or its stockholders, (ii) for acts

or omissions not in good faith or which involve intentional misconduct or a

knowing violation of law, (iii) under Section 174 of the Delaware General

Corporation Law or (iv) for any transaction from which the director derived any

improper personal benefit. If the Delaware General Corporation Law is amended

after approval by the stockholders of this Article EIGHTEENTH to further

eliminate or limit the personal liability of directors, then the liability of a

director of the corporation shall be eliminated or limited to the fullest extent

permitted by the Delaware General Corporation Law, as so amended. No amendment

to or repeal of this Article EIGHTEENTH shall adversely affect any right or

protection of a director of the corporation existing at the time of such

amendment or repeal.

 

                  4. This Restated Certificate of Incorporation of the

corporation was duly adopted by the Board of Directors of the corporation in

accordance with the provisions of Section 245 of the Delaware General

Corporation Law.

 

                  5. This Restated Certificate of Incorporation only restates

and integrates and does not further amend the provisions of the corporation's

Certificate of Incorporation as heretofore amended, and there is no discrepancy

between those provisions and the provisions of this Restated Certificate of

Incorporation.

 

 

[As Filed: 08-13-2012]