RESTATED

                          CERTIFICATE OF INCORPORATION

                                       OF

                               UNISYS CORPORATION

 

 

Unisys Corporation, a corporation organized and existing under the laws of the

State of Delaware, hereby certifies as follows:

 

        1.  The name of the corporation is Unisys Corporation and the name

under which the corporation was originally incorporated was Burroughs Delaware

Incorporated.  The date of filing of its original Certificate of Incorporation

with the Delaware Secretary of State was February 22, 1984.

 

        2.  The Restated Certificate of Incorporation of Unisys Corporation, in

the form attached hereto as Exhibit A, has been duly adopted by the Board of

Directors of Unisys Corporation in accordance with Section 245 of the General

Corporation Law of the State of Delaware.  The Restated Certificate of

Incorporation attached hereto as Exhibit A only restates and integrates and

does not further amend the provisions of this corporation's Restated

Certificate of Incorporation, as heretofore amended or supplemented, and there

is no discrepancy between those provisions and the provisions of the Restated

Certificate of Incorporation attached hereto as Exhibit A.

 

        3.  The Restated Certificate of Incorporation so adopted reads in full

as set forth on Exhibit A attached hereto and incorporated herein by this

reference.

 

      IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate

of Incorporation to be duly executed by its authorized officer on the 29th day

of April, 2010.

 

 

                                            UNISYS CORPORATION

 

 

                                           By /s/ Nancy Straus Sundheim

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

                                         Name:    Nancy Straus Sundheim

                                         Title: Senior Vice President,

                                                General Counsel and

                                                Secretary

 

 

 

 

 

<PAGE>

                                    Exhibit A

 

                                    RESTATED

                          CERTIFICATE OF INCORPORATION

                                       OF

                               UNISYS CORPORATION

                                   ARTICLE I

 

     The name of the corporation (hereinafter called the "Corporation") is

Unisys Corporation.

 

 

                                  ARTICLE II

 

     The address of the Corporation's registered office in the State of

Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.

The name of the Corporation's registered agent at such address is The

Corporation Trust Company.

 

 

                                  ARTICLE III

 

     The purpose or purposes for which the Corporation is organized are:

 

     To engage in the business of designing, manufacturing and marketing of

components, products, systems and forms and supplies for the recording, storing,

handling, computing, processing and communicating of information and data, and

of providing related services; and

 

     To engage in any other lawful act or activity for which a corporation may

be organized under the General Corporation Law of Delaware.

 

 

                                   ARTICLE IV

 

     Section 1.  The total number of shares of all classes of stock which the

Corporation shall have authority to issue is 112,000,000 shares, divided into

two classes consisting of 72,000,000 shares of Common Stock, par value $.01 per

share ("Common Stock"), and 40,000,000 shares of Preferred Stock, par value $1

per share ("Preferred Stock").  The Board of Directors shall have authority by

resolution to issue the shares of Preferred Stock from time to time on such

terms as it may determine and to divide the Preferred Stock into one or more

series and, in connection with the creation of any such series, to determine

and fix by the resolution or resolutions providing for the issuance of shares

thereof:

 

            A.    the distinctive designation of such series, the number of

shares which shall constitute such series, which number may be increased or

decreased (but not below the number of shares then outstanding) from time to

time by action of the Board of Directors, and the stated value thereof, if

different from the par value thereof;

 

            B.    the dividend rate, the times of payment of dividends on the

shares of such series, whether dividends shall be cumulative, and, if so, from

what date or dates, and the preference or relation which such dividends will

bear to the dividends payable on any shares of stock of any other class or any

other series of this class;

 

            C.    the price or prices at which, and the terms and conditions on

which, the shares of such series may be redeemed;

 

            D.    whether or not the shares of such series shall be entitled to

the benefit of a retirement or sinking fund to be applied to the purchase or

redemption of such shares and, if so entitled, the amount of such fund and the

terms and provisions relative to the operation thereof;

 

            E.    whether or not the shares of such series shall be convertible

into, or exchangeable for, any other shares of stock of the Corporation or any

other securities and, if so convertible or exchangeable, the conversion price

or prices, or the rates of exchange, and any adjustments thereof, at which such

conversion or exchange may be made, and any other terms and conditions of such

conversion or exchange;

 

            F.    the rights of the shares of such series in the event of

voluntary or involuntary liquidation, dissolution or winding up or upon any

distribution of the assets, of the Corporation;

 

            G.    whether or not the shares of such series shall have priority

over or parity with or be junior to the shares of any other class or series in

any respect, or shall be entitled to the benefit of limitations restricting (i)

the creation of indebtedness of the Corporation, (ii) the issuance of shares of

any other class or series having priority over or being on a parity with the

shares of such series in any respect, or (iii) the payment of dividends on, the

making of other distributions in respect of, or the purchase or redemption of

shares of any other class or series on parity with or ranking junior to the

shares of such series as to dividends or assets, and the terms of any such

restrictions, or any other restriction with respect to shares of any other

class or series on parity with or ranking junior to the shares of such series

in any respect;

 

            H.    whether such series shall have the voting rights, in addition

to any voting rights provided by law and, if so, the terms of such voting

rights, which may be general or limited; and

 

            I.    any other powers, preferences, privileges, and relative

participating, optional, or other special rights of such series, and the

qualifications, limitations or restrictions thereof, to the full extent now or

hereafter permitted by law.

 

      The powers, preferences and relative participating, optional and other

special rights of each series of Preferred Stock, and the qualifications,

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

all other series at any time outstanding.  All shares of any one series of

Preferred Stock shall be identical in all respects with all other shares of

such series, except that shares of any one series issued at different times

may differ as to the dates from which dividends thereon shall be cumulative.

 

     Section 2.  Each holder of Common Stock shall be entitled to one vote for

each share of Common Stock held of record on all matters on which stockholders

generally are entitled to vote.  Subject to the provisions of law and the

rights of the Preferred Stock and any other class or series of stock having a

preference as to dividends over the Common Stock then outstanding, dividends

may be paid on the Common Stock at such times and in such amounts as the Board

of Directors shall determine.  Upon the dissolution, liquidation or winding up

of the Corporation, after any preferential amounts to be distributed to the

holders of the Preferred Stock and any other class or series of stock having a

preference over the Common Stock then outstanding have been paid or declared

and set apart for payment, the holders of the Common Stock shall be entitled to

receive all the remaining assets of the Corporation available for distribution

to its stockholders ratably in proportion to the number of shares held by them,

respectively.

 

     Section 3.  Junior Preferred Stock:

 

            A.    Designation and Amount.  The shares of such series shall be

designated as "Junior Participating Preferred Stock" (the "Junior Preferred

Stock") and the number of shares constituting such series shall be 1,500,000.

Such number of shares may be increased or decreased by resolution of the Board

of Directors; provided, that no decrease shall reduce the number of shares of

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

outstanding plus the number of shares issuable upon exercise of outstanding

rights, options or warrants or upon conversion of outstanding securities issued

by the Corporation.

 

            B.    Dividends and Distributions.

 

                  (i)  Subject to the prior and superior rights of the holders

of any shares of any series of Preferred Stock ranking prior and superior to

the shares of Junior Preferred Stock with respect to dividends, the holders of

shares of Junior Preferred Stock, in preference to the holders of Common Stock

and of any other junior stock, shall be entitled to receive, when, as and if

declared by the Board of Directors out of funds legally available for the

purpose, quarterly dividends payable in cash on the first day of March, June,

September and December in each year (each such date being referred to herein as

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

Dividend Payment Date after the first issuance of a share or fraction of a

share of Junior Preferred Stock, in an amount per share (rounded to the nearest

cent) equal to the greater of (a) $15 or (b) subject to the provision for

adjustment hereinafter set forth, 300 times the aggregate per share amount of

all cash dividends, and 300 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 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 Preferred Stock.  In the event the

Corporation shall at any time declare or pay any dividend on Common Stock

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

consolidation of the outstanding shares of Common Stock (by reclassification or

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

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

amount to which holders of shares of Junior Preferred Stock were 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 is the number of shares of Common Stock outstanding immediately after

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

that were outstanding immediately prior to such event.

 

                  (ii)  The Corporation shall declare a dividend or

distribution on the Junior Preferred Stock as provided in Paragraph (i) of this

Subsection immediately after it declares a dividend or distribution on the

Common Stock (other than a dividend payable in shares of Common Stock);

provided that, in the event no dividend or distribution shall have been

declared on the Common Stock during the period between any Quarterly Dividend

Payment Date and the next subsequent Quarterly Dividend Payment Date, a

dividend of $15 per share on the Junior Preferred Stock shall nevertheless be

payable on such subsequent Quarterly Dividend Payment Date.

 

                  (iii)  Dividends shall begin to accrue and be cumulative on

outstanding shares of Junior Preferred Stock from the Quarterly Dividend

Payment Date next preceding the date of issue of such shares of Junior

Preferred Stock, unless the date of issue of such shares is prior to the record

date for the first Quarterly Dividend Payment Date, in which case dividends on

such shares shall begin to accrue from the date of issue of such shares, or

unless the date of issue is a Quarterly Dividend Payment Date or is a date

after the record date for the determination of holders of shares of Junior

Preferred Stock entitled to receive a quarterly dividend and before such

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

begin to accrue and be cumulative from such Quarterly Dividend Payment Date.

Accrued but unpaid dividends shall not bear interest.  Dividends paid on the

shares of Junior Preferred Stock in an amount less than the total amount of

such dividends at the time accrued and payable on such shares shall be

allocated pro rata on a share-by-share basis among all such shares at the time

outstanding.  The Board of Directors may fix a record date for the

determination of holders of shares of Junior Preferred Stock entitled to

receive payment of a dividend or distribution declared thereon, which record

date shall be not more than 60 days prior to the date fixed for the payment

thereof.

 

            C.    Voting Rights.  The holders of shares of Junior Preferred

Stock shall have the following voting rights:

 

                   (i)  Subject to the provision for adjustment hereinafter set

forth, each share of Junior Preferred Stock shall entitle the holder thereof to

300 votes on all matters submitted to a vote of the stockholders of the

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

dividend on Common Stock payable in shares of Common Stock, or effect a

subdivision or combination or consolidation of the outstanding shares of Common

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

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

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

of Junior Preferred Stock were entitled immediately prior to such event shall

be adjusted by multiplying such number by a fraction the numerator of which is

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

and the denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

                   (ii)  Except as otherwise provided herein or by law, the

holders of shares of Junior Preferred Stock and the holders of shares of Common

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

stockholders of the Corporation.

 

                   (iii)  The Certificate of Incorporation of the Corporation

shall not be amended in any manner which would materially alter or change the

powers, preferences or special rights of the Junior Preferred Stock so as to

affect them adversely without the affirmative vote of the holders of at least

two-thirds of the outstanding shares of Junior Preferred Stock, voting together

as a single series.

 

                   (iv)  Except as set forth herein, holders of Junior

Preferred Stock shall have no voting rights.

 

            D.    Certain Restrictions.

 

                   (i)  Whenever quarterly dividends or other dividends or

distributions payable on the Junior Preferred Stock as provided in Subsection B

are in arrears, thereafter and until all accrued and unpaid dividends and

distributions, whether or not declared, on shares of Junior Preferred Stock

outstanding shall have been paid in full, the Corporation shall not:

 

                        (a)  declare or pay dividends on, make any other

distributions on, or redeem or purchase or otherwise acquire for consideration

any shares of stock ranking junior (either as to dividends or upon liquidation,

dissolution or winding up) to the Junior Preferred Stock;

 

                        (b)  declare or pay dividends on or make any other

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

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

Preferred Stock, except dividends paid ratably on the Junior Preferred Stock

and all such parity stock on which dividends are payable or in arrears in

proportion to the total amounts to which the holders of all such shares are

then entitled; or

 

                        (c)  purchase or otherwise acquire for consideration

any shares of Junior Preferred Stock, or any shares of stock ranking on a

parity with the Junior Preferred Stock, except in accordance with a purchase

offer made in writing or by publication (as determined by the Board of

Directors) to all holders of such shares upon such terms as the Board of

Directors, after consideration of the respective annual dividend rates and

other relative rights and preferences of the respective series and classes,

shall determine in good faith will result in fair and equitable treatment among

the respective series or classes.

 

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

Corporation to purchase or otherwise acquire for consideration any shares of

stock of the Corporation unless the Corporation could, under Paragraph (i) of

this Subsection (D) purchase or otherwise acquire such shares at such time and

in such manner.

 

            E.    Reacquired Shares.  Any shares of Junior 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, subject to the conditions and restrictions on issuance set forth herein.

 

            F.    Liquidation, Dissolution or Winding Up.  Upon any

liquidation, dissolution or winding up of the Corporation, no distribution

shall be made (1) to the holders of shares of stock ranking junior (either as

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

Preferred Stock unless, prior thereto, the holders of shares of Junior

Preferred Stock shall have received $100 per share, plus an amount equal to

accrued and unpaid dividends and distributions thereon, whether or not declared,

to the date of such payment, provided that the holders of shares of Junior

Preferred Stock shall be entitled to receive an aggregate amount per share,

subject to the provision for adjustment hereinafter set forth, equal to 300

times the aggregate amount to be distributed per share to holders of Common

Stock, or (2) to the holders of stock ranking on a parity (either as to

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

Preferred Stock, except distributions made ratably on the Junior Preferred Stock

 and all other such parity stock in proportion to the total amounts to which

the holders of all such shares are entitled upon such liquidation, dissolution

or winding up.  In the event the Corporation shall at any time declare or pay

any dividend on Common Stock payable in shares of Common Stock, or effect a

subdivision or combination or consolidation of the outstanding shares of Common

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

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

then in each such case the aggregate amount to which holders of shares of

Junior Preferred Stock were entitled immediately prior to such event under the

proviso in clause (1) of the preceding sentence shall be adjusted by

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

shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

            G.    Consolidation, Merger, etc.  In case the Corporation shall

enter into any consolidation, merger, combination or other transaction in which

the shares of Common Stock are exchanged for or changed into other stock or

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

Junior 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 300 times the aggregate amount of stock, securities, cash

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

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

Corporation shall at any time declare or pay any dividend on Common Stock

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

consolidation of the outstanding shares of Common Stock (by reclassification or

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

each such case the amount set forth in the preceding sentence with respect to

the exchange or change of shares of Junior Preferred Stock shall be adjusted by

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

shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

            H.    No Redemption.  The shares of Junior Preferred Stock shall

not be redeemable.

 

            I.    Rank.  Nothing herein shall preclude the Board of Directors

from creating or authorizing any class or series of Preferred Stock ranking on

a parity with or prior to the Junior Preferred Stock as to the payment of

dividends or the distribution of assets.

 

 

                                  ARTICLE V

 

 

     Section 1.  Vote Required for Certain Business Combinations.

 

            A.    Higher Vote for Certain Business Combinations.  In addition

to any affirmative vote required by law or this Restated Certificate of

Incorporation, and except as otherwise expressly provided in Section 2 of this

Article V:

 

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

Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as

hereinafter defined) or (b) any other corporation (whether or not itself an

Interested Stockholder) which is, or after such merger or consolidation would

be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or

 

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

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

with any Interested Stockholder or any Affiliate of any Interested Stockholder

of any assets of the Corporation or any Subsidiary having an aggregate Fair

Market Value of $50,000,000 or more; or

 

                   (iii)  the issuance or transfer by the Corporation or any

Subsidiary (in one transaction or a series of transactions) of any securities

of the Corporation or any Subsidiary to any Interested Stockholder or any

Affiliate of any Interested Stockholder in exchange for cash, securities or

other property (or a combination thereof) having an aggregate Fair Market Value

of $50,000,000 or more; or

 

                   (iv)  the adoption of any plan or proposal for the

liquidation or dissolution of the Corporation proposed by or on behalf of an

Interested Stockholder or any Affiliate of any Interested Stockholder; or

 

                   (v)  any reclassification of securities (including any

reverse stock split), or recapitalization of the Corporation, or any merger or

consolidation of the Corporation with any of its Subsidiaries or any other

transaction (whether or not with or into or otherwise involving an Interested

Stockholder) which has the effect, directly or indirectly, of increasing the

proportionate share of the outstanding shares of any class or equity or

convertible securities of the Corporation or any Subsidiary which is directly

or indirectly owned by any Interested Stockholder or any Affiliate of any

Interested Stockholder;

 

       shall require the affirmative vote of the holders of at least 80% of the

voting power of the then outstanding shares of capital stock of the Corporation

entitled to vote generally in the election of directors (the "Voting Stock"),

voting together as a single class (it being understood that for purposes of

this Article V, each share of the Voting Stock shall have the number of votes

granted to it pursuant to Article IV of this Restated Certificate of

Incorporation).  Such affirmative vote shall be required notwithstanding the

fact that no vote may be required, or that a lesser percentage may be specified,

by law or in any agreement with any national securities exchange or otherwise.

 

            B.    Definition of "Business Combination".  The term "Business

Combination" as used in this Article V shall mean any transaction which is

referred to in any one or more of clauses (i) through (v) of Paragraph A of

this Section I.

 

 

     Section 2.  When Higher Vote is Not Required.  The provisions of Section 1

of this Article V shall not be applicable to any particular Business

Combination, and such Business Combination shall require only such affirmative

vote as is required by law and any other provisions of this Restated

Certificate of Incorporation, if all of the conditions specified in either the

following Paragraphs A and B are met:

 

 

            A.    Approval by Disinterested Directors.  The Business Combination

shall have been approved by a majority of the Disinterested Directors (as

hereinafter defined).

 

            B.    Price and Procedure Requirements.  All of the following

conditions shall have been met:

 

                   (i)  The aggregate amount of the cash and the Fair Market

Value (as hereinafter defined) as of the date of the consummation of the

Business Combination of consideration other than cash to be received per share

by holders of Common Stock in such Business Combination shall be at least equal

to the higher of the following:

 

                        (a)  (if applicable) the highest per share price

(including any brokerage commission, transfer taxes and soliciting dealers'

fees) paid by the Interested Stockholder for any shares of Common Stock (or for

any shares of common stock of Burroughs Corporation, a Michigan corporation,

the predecessor to the Corporation) acquired by it (1) within the two-year

period immediately prior to the first public announcement of the proposal of

the Business Combination (the "Announcement Date") or (2) in the transaction in

which it became an Interested Stockholder, whichever is higher; and

 

                        (b)  the Fair Market Value per share of Common Stock

(or for any shares of common stock of Burroughs Corporation, a Michigan

corporation, the predecessor of the Corporation) on the Announcement Date or on

the date on which the Interested Stockholder became an Interested Stockholder

(such latter date is referred to in this Article V as the "Determination Date"),

whichever is higher.

 

                   (ii)  The aggregate amount of the cash and the Fair Market

Value as of the date of the consummation of the Business Combination of

consideration other than cash to be received per share by holders of shares of

any other class of outstanding Voting Stock shall be at least equal to the

highest of the following (it being intended that the requirements of this

paragraph B(ii) shall be required to be met with respect to every class of

outstanding Voting Stock, whether or not the Interested Stockholder has

previously acquired any shares of a particular class of Voting Stock):

 

                        (a)  (if applicable) the highest per share price

(including any brokerage commissions, transfer taxes and soliciting dealers'

fees) paid by the Interested Stockholder for any shares of such class of Voting

Stock acquired by it (1) within the two-year period immediately prior to the

Announcement Date or (2) in the transaction in which it became an Interested

Stockholder, whichever is higher;

 

                        (b)  (if applicable) the highest preferential amount

per share to which the holders of shares of such class of Voting Stock are

entitled in the event of any voluntary or involuntary liquidation, dissolution

or winding up of the Corporation; and

 

                        (c)  the Fair Market Value per share of such class of

Voting Stock on the Announcement Date or on the Determination Date, whichever

is higher.

 

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

particular class of outstanding Voting Stock (including Common Stock) shall be

in cash or in the same form as the Interested Stockholder has previously paid

for shares of such class of Voting Stock.  If the Interested Stockholder has

paid for shares of any class of Voting Stock with varying forms of

consideration, the form of consideration for such class of Voting Stock shall

be either cash or the form used to acquire the largest number of shares of such

class of Voting Stock previously acquired by it.

 

                   (iv)  After such Interested Stockholder has become an

Interested Stockholder and prior to the consummation of such Business

Combination: (a) except as approved by a majority of the Disinterested

Directors, there shall have been no failure to declare and pay at the regular

date therefor any full quarterly dividends (whether or not cumulative) on the

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

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

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

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

dividends as necessary to reflect any reclassification (including any reverse

stock split), recapitalization, reorganization or any similar transaction which

has the effect of reducing the number of outstanding shares of the Common

Stock, unless the failure so to increase such annual rate is approved by a

majority of the Disinterested Directors; and (c) such Interested Stockholder

shall have not become the beneficial owner of any additional shares of Voting

Stock except as part of the transaction which results in such Interested

Stockholder becoming an Interested Stockholder.

 

                   (v)  After such Interested Stockholder has become an

Interested Stockholder, such Interested Stockholder shall not have received the

benefit, directly or indirectly (except proportionately as a stockholder), of

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

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

anticipation of or in connection with such Business Combination or otherwise.

 

                   (vi)  A proxy or information statement describing the

proposed Business Combination and complying with the requirements of the

Securities Exchange Act of 1934 and the rules and regulations thereunder (or

any subsequent provisions replacing such Act, rules or regulations) shall be

mailed to public stockholders of the Corporation at least 30 days prior to the

consummation of such Business Combination (whether or not such proxy or

information statement is required to be mailed pursuant to such Act or

subsequent provisions).

 

 

     Section 3.  Certain Definitions.  For the purpose of this Article V:

 

            A.    A "person" shall mean any individual or firm, corporation,

partnership, limited partnership, joint venture, trust, unincorporated

association or other entity.

 

            B.    "Interested Stockholder" shall mean any person (other than

the Corporation or any Subsidiary) who or which:

 

                   (i)  is the beneficial owner, directly or indirectly, of

more than 20% of the voting power of the outstanding Voting Stock; or

 

                   (ii)  is an Affiliate of the Corporation and at any time

within the two-year period immediately prior to the date in question was the

beneficial owner, directly or indirectly, of 20% or more of the voting power of

then outstanding Voting Stock; or

 

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

shares of Voting Stock which were at any time within the two-year period

immediately prior to the date in question beneficially owned by any Interested

Stockholder, if such assignment or succession shall have occurred in the course

of a transaction or series of transactions not involving a public offering

within the meaning of the Securities Act of 1933.

 

            C.    A person shall be a "beneficial owner" of any Voting Stock:

 

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

Associates (as hereinafter defined) beneficially owns, directly or indirectly;

or

 

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

Associates has (a) the right to acquire (whether such right is exercisable

immediately or only after the passage of time), pursuant to any agreement,

arrangement or understanding or upon the exercise of conversion rights,

exchange rights, warrants or options, or otherwise, or (b) the right to vote

pursuant to any agreement, arrangement or understanding; or

 

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

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

Associates has any agreement, arrangement or understanding for the purpose of

acquiring, holding, voting or disposing of any shares of Voting Stock.

 

            D.    For the purpose of determining whether a person is an

Interested Stockholder pursuant to Paragraph B of this Section 3, the number of

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

owned through application of Paragraph C of this Section 3, but shall not

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

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

warrants or options, or otherwise.

 

            E.    "Affiliate" or "Associate" shall have the respective meanings

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

the Securities Exchange Act of 1934, as in effect on February 24, 1984.

 

            F.    "Subsidiary" means any corporation of which a majority of any

class of equity security is owned, directly or indirectly, by the Corporation;

provided, however, that for the purposes of the definition of Interested

Stockholder set forth in Paragraph B of this Section 3, the term "Subsidiary"

shall mean only a corporation of which a majority of each class of equity

security is owned, directly or indirectly, by the Corporation.

 

            G.    "Disinterested Director" means any member of the Board of

Directors of the Corporation (the "Board") who is unaffiliated with the

Interested Stockholder and was a member of the Board prior to the time that the

Interested Stockholder became an Interested Stockholder, and any successor of a

Disinterested Director who is not an affiliate of the Interested Stockholder

and is recommended to succeed a Disinterested Director by a majority of

Disinterested Directors then on the Board.

 

            H.  "Fair Market Value" means (i) in the case of stock, the highest

closing sale price during the 30-day period immediately preceding the date in

question of a share of such stock on the Composite Tape for New York Stock

Exchange - Listed Stocks, or, if such stock is not quoted on the Composite Tape,

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

on the principal United States securities exchange registered under the

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

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

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

date in question on the National Association of Securities Dealers, Inc.

Automated Quotation System or any system then in use, or if no such quotations

are available, the fair market value on the date in question of a share of such

stock as determined by the Board in good faith; and (ii) in the case of

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

 the date in question as determined by the Board in good faith.

 

            I.    In the event of any Business Combination in which the

Corporation survives, the phrase "other consideration to be received" as used

in Paragraphs B(i) and (ii) of Section 2 of this Article V shall include the

shares of Common Stock and/or the shares of any other class of outstanding

Voting Stock retained by the holders of such shares.

 

 

     Section 4.  Powers of the Board of Directors.  A majority of the directors

of the Corporation shall have the power and duty to determine for the purposes

of this Article V, on the basis of information known to them after reasonable

inquiry, (A) whether a person is an Interested Stockholder, (B) the number of

shares of Voting Stock beneficially owned by any persons, (C) whether a person

is an Affiliate or Associate of another and (D) whether the assets which are

the subject of any Business Combination have, or the consideration to be

received for the issuance or transfer of securities by the Corporation or any

Subsidiary in any Business Combination has, an aggregate Fair Market Value of

$50,000,000 or more.

 

     Section 5.  No Effect on Fiduciary Obligations of Interested Stockholders.

Nothing contained in this Article V shall be construed to relieve any

Interested Stockholder from any fiduciary obligation imposed by law.

 

 

                                    ARTICLE VI

 

                                 BOARD OF DIRECTORS

 

 

     Section 1.  Number.  The business and affairs of the Corporation shall be

managed under the direction of the Board of Directors which, subject to any

right of the holders of any series of Preferred Stock then outstanding to elect

additional directors under specified circumstances, shall consist of not less

than 7 nor more than 15 persons.  The exact number of directors within the

minimum and maximum limitations specified in the preceding sentence shall be

fixed from time to time by the Board of Directors pursuant to a resolution

adopted by a majority of the entire Board of Directors.

 

     Section 2.  Terms.  The directors, other than those who may be elected by

the holders of any series of Preferred Stock, shall, commencing with the Annual

Meeting of Stockholders scheduled to be held in calendar year 2011 (the "2011

Annual Meeting"), be elected at each Annual Meeting of Stockholders for a term

expiring at the next Annual Meeting of Stockholders following their election

and shall remain in office until their successors shall have been elected and

qualified or until their earlier death, resignation, retirement,

disqualification or removal.  The term of office of each director serving on

the Board of Directors immediately prior to the election of directors at the

2011 Annual Meeting (other than any directors elected by holders of Preferred

Stock) shall expire at the 2011 Annual Meeting, notwithstanding that any such

director may have been elected for a term that extended beyond the date of the

2011 Annual Meeting, but such director may remain in office beyond the

expiration of such term expiring at the 2011 Annual Meeting until a successor

is elected and qualified or until such director's earlier death, resignation,

retirement, disqualification or removal.

 

     Section 3.  Stockholder Nomination of Director Candidates.  Advance notice

of stockholder nominations for the election of directors shall be given in the

manner provided in the Bylaws of the Corporation.

 

     Section 4.  Newly Created Directorships and Vacancies.  Subject to the

rights of the holders of any series of Preferred Stock then outstanding, newly

created directorships resulting from any increase in the authorized number of

directors or any vacancies in the Board of Directors resulting from death,

resignation, retirement, disqualification, removal from office or other cause

shall be filled by a majority vote of the directors then in office, even if

less than a quorum.  Any director so chosen (other than a director elected by

holders of Preferred Stock) shall hold office for a term expiring at the next

Annual Meeting of Stockholders following his or her election and shall remain

in office until such director's successor shall have been elected and qualified

or until such director's earlier death, resignation, retirement,

disqualification or removal.  No decrease in the number of directors

constituting the Board of Directors shall shorten the term of any incumbent

director.

 

     Section 5.  Removal.  Subject to the rights of the holders of any series

of Preferred Stock then outstanding, any director, or the entire Board of

Directors, may be removed from office at any time, with or without cause, by

the affirmative vote of the holders of at least 80% of the voting power of all

of the shares of the Corporation entitled to vote thereon, voting together as a

single class.

 

 

                                    ARTICLE VII

 

                                 STOCKHOLDER ACTION

 

     Any action required or permitted to be taken by the stockholders of the

Corporation must be effected at a duly called annual or special meeting of

stockholders of the Corporation and may not be effected by any consent in

writing by such stockholders.  Except as otherwise required by law and subject

to the rights of the holders of any class or series of stock having a

preference over the Common Stock as to dividends or upon liquidation, special

meetings of stockholders of the Corporation may be called only by the Board of

Directors pursuant to a resolution approved by a majority of the entire Board

of Directors.

 

 

                                    ARTICLE VIII

 

                                   BYLAW AMENDMENTS

 

     The Board of Directors shall have power to make, alter, amend and repeal

the Bylaws of the Corporation (except so far as the Bylaws of the Corporation

adopted by the stockholders shall otherwise provide).  Any Bylaws made by the

Directors under the powers conferred hereby may be altered, amended or repealed

by the Directors or by the stockholders.  Notwithstanding the foregoing and

anything contained in this Restated Certificate of Incorporation or the Bylaws

to the contrary, Sections 2 and 3 of Article I and Sections 1 through 5 of

Article II of the Bylaws shall not be altered, amended or repealed and no

provision inconsistent therewith shall be adopted without the affirmative vote

of the holders of at least 80% of the voting power of all the shares of the

Corporation entitled to vote generally in the election of directors, voting

together as a single class.

 

 

                                    ARTICLE IX

 

                                   AMENDMENTS TO

                           CERTIFICATE OF INCORPORATION

 

     Notwithstanding any other provisions of the Certificate of Incorporation

or the Bylaws of the Corporation (and notwithstanding the fact that a lesser

percentage may be specified by law, this Certificate of Incorporation or the

Bylaws of the Corporation), the affirmative vote of the holders of 80% or more

of the voting power of the shares of the then outstanding voting stock of the

Corporation, voting together as a single class, shall be required to amend or

repeal, or adopt any provisions inconsistent with, Articles V, VI, VII, VIII or

this Article IX of this Restated Certificate of Incorporation.

 

 

                                     ARTICLE X

 

     Section 1.  Elimination of Certain Liability of Directors.  A director of

the Corporation shall not be personally liable to the Corporation or its

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

except for liability (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 an improper personal benefit.

 

 

     Section 2.  Indemnification and Insurance.

 

            (a)  Right to Indemnification.  Each person who was or is made a

party or is threatened to be made a party to 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, or a person

of whom he or she is the legal representative, is or was a director or officer,

of the Corporation or is or was serving at the request of the Corporation as a

director, officer, employee or agent of another corporation or of a

partnership, joint venture, trust or other enterprise, including service with

respect to employee benefit plans, whether the basis of such proceeding is

alleged action in an official capacity as a director, officer, employee or

agent or in any other capacity while serving as a director, officer, employee

or agent, shall be indemnified and held harmless by the Corporation to the

fullest extent authorized by the Delaware General Corporation Law, as the same

exists or may hereafter be amended (but, in the case of any such amendment, only

to the extent that such amendment permits the Corporation to provide broader

indemnification rights than said law permitted the Corporation to provide prior

to such amendment), against all expense, liability and loss (including

attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts

paid or to be paid in settlement) reasonably incurred or suffered by such

person in connection therewith and such indemnification shall continue as to a

person who has ceased to be a director, officer, employee or agent and shall

inure to the benefit of his or her heirs, executors and administrators;

provided, however, that, except as provided in Paragraph (b) hereof, the

Corporation shall indemnify any such person seeking indemnification in

connection with a proceeding (or part thereof) initiated by such person only

if such proceeding (or part thereof) was authorized by the Board of Directors

of the Corporation.  The right to indemnification conferred in this Section

shall be a contract right and shall include the right to be paid by the

Corporation the expenses incurred in defending any such proceeding in advance

of its final disposition; provided, however, that, if the Delaware General

Corporation Law requires, the payment of such expenses incurred by a director

or officer in his or her capacity as a director or officer (and not in any

other capacity in which service was or is rendered by such person while a

director or officer, including, without limitation, service to an employee

benefit plan) in advance of the final disposition of a proceeding, shall be

made only upon delivery to the Corporation of an undertaking, by or on behalf

of such director or officer, to repay all amounts so advanced if it shall

ultimately be determined that such director or officer is not entitled to be

indemnified under this Section or otherwise.  The Corporation may, by action of

its Board of Directors, provide indemnification to employees and agents of the

Corporation with the same scope and effect as the foregoing indemnification of

directors and officers.

 

            (b)  Right of Claimant to Bring Suit.  If a claim under Paragraph

(a) of this Section is not paid in full by the Corporation within thirty days

after a written claim has been received by the Corporation, the claimant may at

any time thereafter bring suit against the 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.  It shall be

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

for expenses incurred in defending any proceeding in advance of its final

disposition where the required undertaking, if any is required, has been

tendered to the Corporation) that the claimant has not met the standards of

conduct which make it permissible under the Delaware General Corporation Law

for the Corporation to indemnify the claimant for the amount claimed, but the

burden of providing such defense shall be on the Corporation.  Neither the

failure of the Corporation (including its Board of Directors, independent legal

counsel, or its stockholders) to have made a determination prior to the

commencement of such action that indemnification of the claimant is proper in

the circumstances because he or she has met the applicable standard of conduct

set forth in the Delaware General Corporation Law, nor an actual determination

by the Corporation (including its Board of Directors, independent legal

counsel, or its stockholders) that the claimant has not met such applicable

standard of conduct, shall be a defense to the action or create a presumption

that the claimant has not met the applicable standard of conduct.

 

            (c)  Non-Exclusivity of Rights.  The right to indemnification and

the payment of expenses incurred in defending a proceeding in advance of its

final disposition conferred in this Section shall not be exclusive of any other

right which any person may have or hereafter acquire under any statute,

provision of the Certificate of Incorporation, Bylaw, agreement, vote of

stockholders or disinterested directors or otherwise.

 

            (d)  Insurance.  The Corporation may maintain insurance, at its

expense, to protect itself and any director, officer, employee or agent of the

Corporation or another corporation, partnership, joint venture, trust or other

enterprise against any such expense, liability or loss, whether or not the

Corporation would have the power to indemnify such person against such expense,

liability or loss under the Delaware General Corporation Law.