Certificate of Incorporation(which, as used herein, shall mean the certificate of incorporation of the Corporation, as amendedfrom time to time, including the terms of any certificate of designations of any series ofPreferred Stock) that relates solely to the terms of one or more outstanding series of PreferredStock if the holders of such affected series are entitled, either separately or together as a classwith the holders of one or more other such series, to vote thereon pursuant to this Certificate ofIncorporation. There shall be no cumulative voting.     The number of authorized shares of Common Stock may be increased or decreased (but not belowthe number of shares thereof then outstanding) by the affirmative vote of the holders of a majorityof the stock of the Corporation entitled to vote, irrespective of the provisions of Section242(b)(2) of the General Corporation Law of the State of Delaware.     3. Dividends. Dividends may be declared and paid on the Common Stock from fundslawfully available therefor as and when determined by the Board of Directors and subject to anypreferential dividend or other rights of any then outstanding Preferred Stock.     4. Liquidation. Upon the dissolution or liquidation of the Corporation, whethervoluntary or involuntary, holders of Common Stock will be entitled to receive all assets of theCorporation available for distribution to its stockholders, subject to any preferential or otherrights of any then outstanding Preferred Stock.B PREFERRED STOCK.     Preferred Stock may be issued from time to time in one or more series, each of such series tohave such terms as stated or expressed herein and in the resolution or resolutions providing forthe issue of such series adopted by the Board of Directors of the Corporation as hereinafterprovided. Any shares of Preferred Stock which may be redeemed, purchased or acquired by theCorporation may be reissued except as otherwise provided by law.     Authority is hereby expressly granted to the Board of Directors from time to time to issue thePreferred Stock in one or more series, and in connection with the creation of any such series, byresolution or resolutions providing for the issuance of the shares thereof, to determine and fixthe number of shares of such series and such voting powers, full or limited, or no voting powers,and such designations, preferences and relative participating, optional or other special rights,and qualifications, limitations or restrictions thereof, including without limitation thereof,dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall bestated and expressed in such resolutions, all to the full extent now or hereafter permitted by theGeneral Corporation Law of the State of Delaware. Without limiting the generality of the foregoing,the resolutions providing for issuance of any series of Preferred Stock may provide that suchseries shall be superior or rank equally or be junior to the Preferred Stock of any other series tothe extent permitted by law.     The number of authorized shares of Preferred Stock may be increased or decreased (but notbelow the number of shares then outstanding) by the affirmative vote of the holders of a majorityof the stock of the Corporation entitled to vote, irrespective of the provisions of Section242(b)(2) of the General Corporation Law of the State of Delaware.     FIFTH: Except as otherwise provided herein, the Corporation reserves the right to amend,alter, change or repeal any provision contained in this Certificate of Incorporation, in the mannernow or hereafter prescribed by statute and this Certificate of Incorporation, and all rightsconferred upon stockholders herein are granted subject to this reservation.     SIXTH: In furtherance and not in limitation of the powers conferred upon it by the laws of theState of Delaware, and subject to the terms of any series of Preferred Stock, the Board ofDirectors shall have the power to adopt, amend, alter or repeal the Corporation’s By-laws. Theaffirmative vote of a majority of the directors present at any regular or special meeting of theBoard of Directors at which a quorum is present shall be required to adopt, amend, alter or repealthe Corporation’s By-laws. The Corporation’s By-laws also may be adopted, amended, altered orrepealed by the affirmative vote of the holders of at least seventy-five percent (75%) of the voteswhich all thestockholders would be entitled to cast in any annual election of directors or classof directors, in addition to any other vote required by this Certificate of Incorporation.Notwithstanding any other provisions of law, this Certificate of Incorporation or the By-Laws ofthe Corporation, and notwithstanding the fact that a lesser percentage may be specified by law, theaffirmative vote of the holders of at least seventy-five percent (75%) of the votes which all the
 

 
stockholders would be entitled to cast in any annual election of directors or class of directorsshall be required to amend or repeal, or to adopt any provision inconsistent with, this ArticleSIXTH.     SEVENTH: Except to the extent that the General Corporation Law of the State of Delawareprohibits the elimination or limitation of liability of directors for breaches of fiduciary duty,no director of the Corporation shall be personally liable to the Corporation or its stockholdersfor monetary damages for any breach of fiduciary duty as a director, notwithstanding any provisionof law imposing such liability. No amendment to or repeal of this provision shall apply to or haveany effect on the liability or alleged liability of any director of the Corporation for or withrespect to any acts or omissions of such director occurring prior to such amendment or repeal.     EIGHTH: The Corporation shall provide indemnification as follows:     1. Actions, Suits and Proceedings Other than by or in the Right of the Corporation.The Corporation shall indemnify each person who was or is a party or threatened to be made a partyto any threatened, pending or completed action, suit or proceeding, whether civil, criminal,administrative or investigative (other than an action by or in the right of the Corporation) byreason of the fact that he or she is or was, or has agreed to become, a director or officer of theCorporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as adirector, officer, partner, employee or trustee of, or in a similar capacity with, anothercorporation, partnership, joint venture, trust or other enterprise (including any employee benefitplan) (all such persons being referred to hereafter as an “Indemnitee”), or by reason of any actionalleged to have been taken or omitted in such capacity, against all expenses (including attorneys’fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or onbehalf of Indemnitee in connection with such action, suit or proceeding and any appeal therefrom,if Indemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, ornot opposed to, the best interests of the Corporation, and, with respect to any criminal action orproceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination ofany action, suit or proceeding by judgment, order, settlement, conviction or upon a plea ofnolo contendere or its equivalent, shall not, of itself, create a presumption thatIndemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in,or not opposed to, the best interests of the Corporation, and, with respect to any criminal actionor proceeding, had reasonable cause to believe that his or her conduct was unlawful.     2. Actions or Suits by or in the Right of the Corporation. The Corporation shallindemnify any Indemnitee who was or is a party to or threatened to be made a party to anythreatened, pending or completed action or suit by or in the right of the Corporation to procure ajudgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, adirector or officer of the Corporation, or is or was serving, or has agreed to serve, at therequest of the Corporation, as a director, officer, partner, employee or trustee of, or in asimilar capacity with, another corporation, partnership, joint venture, trust or other enterprise(including any employee benefit plan), or by reason of any action alleged to have been taken oromitted in such capacity, against all expenses (including attorneys’ fees) and, to the extentpermitted by law, amounts paid in settlement actually and reasonably incurred by or on behalf ofIndemnitee in connection with such action, suit or proceeding and any appeal therefrom, ifIndemnitee acted in good faith and in a manner which Indemnitee reasonably believed to be in, ornot opposed to, the best interests of the Corporation, except that no indemnification shall be madeunder this Section 2 in respect of any claim, issue or matter as to which Indemnitee shall havebeen adjudged to be liable to the Corporation, unless, and only to the extent, that the Court ofChancery of Delaware shall determine upon application that, despite the adjudication of suchliability but in view of all the circumstances of the case, Indemnitee is fairly and reasonablyentitled to indemnity for such expenses (including attorneys’ fees) which the Court of Chancery ofDelaware shall deem proper.     3. Indemnification for Expenses of Successful Party. Notwithstanding any otherprovisions of this Article, to the extent that an Indemnitee has been successful, on the merits orotherwise, in defense of any action, suit or proceeding referred to in Sections 1 and 2 of thisArticle EIGHTH, or in defense of any claim, issue or matter therein, or on appeal from any suchaction, suit or proceeding, Indemnitee shall be indemnified against all expenses (includingattorneys’ fees) actually and reasonably incurred by or on behalf of Indemnitee in connectiontherewith. Without limiting the foregoing, if any action, suit or proceeding is disposed of, on themerits or otherwise (including a disposition without prejudice), without (i) the disposition beingadverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Corporation, (iii) aplea of guilty or nolo contendere by Indemnitee, (iv) an adjudication that Indemnitee didnot act in good faith and in a manner he reasonably believed to be inor not opposed to thebest
 

 
interests of the Corporation, and (v) with respect to any criminal proceeding, an adjudicationthat Indemnitee had reasonable cause to believe his conduct was unlawful, Indemnitee shall beconsidered for the purposes hereof to have been wholly successful with respect thereto.     4. Notification and Defense of Claim. As a condition precedent to an Indemnitee’sright to be indemnified, such Indemnitee must notify the Corporation in writing as soon aspracticable of any action, suit, proceeding or investigation involving such Indemnitee for whichindemnity will or could be sought. With respect to any action, suit, proceeding or investigation ofwhich the Corporation is so notified, the Corporation will be entitled to participate therein atits own expense and/or to assume the defense thereof at its own expense, with legal counselreasonably acceptable to Indemnitee. After notice from the Corporation to Indemnitee of itselection so to assume such defense, the Corporation shall not be liable to Indemnitee for any legalor other expenses subsequently incurred by Indemnitee in connection with such action, suit,proceeding or investigation, other than as provided below in this Section 4. Indemnitee shall havethe right to employ his or her own counsel in connection with such action, suit, proceeding orinvestigation, but the fees and expenses of such counsel incurred after notice from the Corporationof its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) theemployment of counsel by Indemnitee has been authorized by the Corporation, (ii) counsel toIndemnitee shall have reasonably concluded that there may be a conflict of interest or position onany significant issue between the Corporation and Indemnitee in the conduct of the defense of suchaction, suit, proceeding or investigation or (iii) the Corporation shall not in fact have employedcounsel to assume the defense of such action, suit, proceeding or investigation, in each of whichcases the fees and expenses of counsel for Indemnitee shall be at the expense of the Corporation,except as otherwise expressly provided by thisArticle. The Corporation shall not be entitled, without the consent of Indemnitee, to assume thedefense of any claim brought by or in the right of the Corporation or as to which counsel forIndemnitee shall have reasonably made the conclusion provided for in clause (ii) above. TheCorporation shall not be required to indemnify Indemnitee under this Article EIGHTH for any amountspaid in settlement of any action, suit, proceeding or investigation effected without its writtenconsent. The Corporation shall not settle any action, suit, proceeding or investigation in anymanner which would impose any penalty or limitation on Indemnitee without Indemnitee’s writtenconsent. Neither the Corporation nor Indemnitee will unreasonably withhold or delay its consent toany proposed settlement.     5. Advance of Expenses. Subject to the provisions of Section 6 of this Article EIGHTH,in the event that the Corporation does not assume the defense pursuant to Section 4 of this ArticleEIGHTH of any action, suit, proceeding or investigation of which the Corporation receives noticeunder this Article, any expenses (including attorneys’ fees) incurred by or on behalf of Indemniteein defending an action, suit, proceeding or investigation or any appeal therefrom shall be paid bythe Corporation in advance of the final disposition of such matter; provided,however, that the payment of such expenses incurred by or on behalf of Indemnitee inadvance of the final disposition of such matter shall be made only upon receipt of an undertakingby or on behalf of Indemnitee to repay all amounts so advanced in the event that it shallultimately be determined that Indemnitee is not entitled to be indemnified by the Corporation asauthorized in this Article; and further provided that no such advancement of expenses shall be madeunder this Article EIGHTH if it is determined (in the manner described in Section 6) that (i)Indemnitee did not act in good faith and in a manner he reasonably believed to be in, or notopposed to, the best interests of the Corporation, or (ii) with respect to any criminal action orproceeding, Indemnitee had reasonable cause to believe his conduct was unlawful. Such undertakingshall be accepted without reference to the financial ability of Indemnitee to make such repayment.     6. Procedure for Indemnification. In order to obtain indemnification or advancement ofexpenses pursuant to Section 1, 2, 3 or 5 of this Article EIGHTH, an Indemnitee shall submit to theCorporation a written request. Any such advancement of expenses shall be made promptly, and in anyevent within 30 days after receipt by the Corporation of the written request of Indemnitee, unlessthe Corporation determines within such 30-day period that Indemnitee did not meet the applicablestandard of conduct set forth in Section 1, 2 or 5 of this Article EIGHTH, as the case may be. Anysuch indemnification, unless ordered by a court, shall be made with respect to requests underSection 1 or 2 only as authorized in the specific case upon a determination by the Corporation thatthe indemnification of Indemnitee is proper because Indemnitee has met the applicable standard ofconduct set forth in Section 1 or 2, as the case may be. Such determination shall be made in eachinstance (a) by a majority vote of the directors of the Corporation consisting of persons who arenot at that time parties to the action, suit or proceeding in question (“disinterested directors”),whether or not a quorum, (b) by a committee of disinterested directors designated by majority voteof disinterested directors, whether or not a quorum, (c) if there are no disinterested
 

 
directors,or if the disinterested directors so direct, by independent legal counsel (who may, to the extentpermitted by law, be regular legal counsel to the Corporation) in a written opinion, or (d) by thestockholders of the Corporation.     7. Remedies. The right to indemnification or advancement of expenses as granted bythis Article shall be enforceable by Indemnitee in any court of competent jurisdiction. Neither thefailure of the Corporation to have made a determination prior to the commencement of such actionthat indemnification is proper in the circumstances because Indemnitee has met the applicablestandard of conduct, nor an actual determination by the Corporation pursuant to Section 6 of thisArticle EIGHTH that Indemnitee has not met such applicable standard of conduct, shall be a defenseto the action or create a presumption that Indemnitee has not met the applicable standard ofconduct. Indemnitee’s expenses (including attorneys’ fees) reasonably incurred in connection withsuccessfully establishing Indemnitee’s right to indemnification, in whole or in part, in any suchproceeding shall also be indemnified by the Corporation.     8. Limitations. Notwithstanding anything to the contrary in this Article, except asset forth in Section 7 of the Article EIGHTH, the Corporation shall not indemnify an Indemniteepursuant to this Article EIGHTH in connection with a proceeding (or part thereof) initiated by suchIndemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation.Notwithstanding anything to the contrary in this Article, the Corporation shall not indemnify anIndemnitee to the extent such Indemnitee is reimbursed from the proceeds of insurance, and in theevent the Corporation makes any indemnification payments to an Indemnitee and such Indemnitee issubsequently reimbursed from the proceeds of insurance, such Indemnitee shall promptly refundindemnification payments to the Corporation to the extent of such insurance reimbursement.     9. Subsequent Amendment. No amendment, termination or repeal of this Article or of therelevant provisions of the General Corporation Law of the State of Delaware or any other applicablelaws shall affect or diminish in any way the rights of any Indemnitee to indemnification under theprovisions hereof with respect to any action, suit, proceeding or investigation arising out of orrelating to any actions, transactions or facts occurring prior to the final adoption of suchamendment, termination or repeal.     10. Other Rights. The indemnification and advancement of expenses provided by thisArticle shall not be deemed exclusive of any other rights to which an Indemnitee seekingindemnification or advancement of expenses may be entitled under any law (common or statutory),agreement or vote of stockholders or disinterested directors or otherwise, both as to action inIndemnitee’s official capacity and as to action in any other capacity while holding office for theCorporation, and shall continue as to an Indemnitee who has ceased to be a director or officer, andshall inure to the benefit of the estate, heirs, executors and administrators of Indemnitee.Nothing contained in this Article shall be deemed to prohibit, and the Corporation is specificallyauthorized to enter into, agreements with officers and directors providing indemnification rightsand procedures different from those set forth in this Article. In addition, the Corporation may, tothe extent authorized from time to time by its Board of Directors, grant indemnification rights toother employees or agents of the Corporation or other persons serving the Corporation and suchrights may be equivalent to, or greater or less than, those set forth in this Article.     11. Partial Indemnification. If an Indemnitee is entitled under any provision of thisArticle to indemnification by the Corporation for some or a portion of the expenses (includingattorneys’ fees), judgments, fines or amounts paid in settlement actually and reasonably incurredby or on behalf of Indemnitee in connection with any action, suit, proceeding or investigation andany appeal therefrom but not, however, for the total amount thereof, the Corporation shallnevertheless indemnify Indemnitee for the portion of such expenses (including attorneys’ fees),judgments, fines or amounts paid in settlement to which Indemnitee is entitled.     12. Insurance. The Corporation may purchase and maintain insurance, at its expense, toprotect itself and any director, officer, employee or agent of the Corporation or anothercorporation, partnership, joint venture, trust or other enterprise (including any employee benefitplan) against any expense, liability or loss incurred by him in any such capacity, or arising outof his status as such, whether or not the Corporation would have the power to indemnify such personagainst such expense, liability or loss under the General Corporation Law of the State of Delaware.
 

 
     13. Savings Clause. If this Article or any portion hereof shall be invalidated on anyground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnifyeach Indemnitee as to any expenses (including attorneys’ fees), judgments, fines and amounts paidin settlement in connection with any action, suit, proceeding or investigation, whether civil,criminal or administrative, including an action by or in the right of the Corporation, to thefullest extent permitted by any applicable portion of this Article that shall not have beeninvalidated and to the fullest extent permitted by applicable law.     14. Definitions. Terms used herein and defined in Section 145(h) and Section 145(i) ofthe General Corporation Law of the State of Delaware shall have the respective meanings assigned tosuch terms in such Section 145(h) and Section 145(i).     NINTH: This Article is inserted for the management of the business and for the conduct of theaffairs of the Corporation.     1. General Powers. The business and affairs of the Corporation shall be managed by orunder the direction of the Board of Directors.     2. Number of Directors; Election of Directors. Subject to the rights of holders of anyseries of Preferred Stock to elect directors, the number of directors of the Corporation shall beestablished by the Board of Directors. Election of directors need not be by written ballot, exceptas and to the extent provided in the By-laws of the Corporation.     3. Classes of Directors. Subject to the rights of holders of any series of PreferredStock to elect directors, the Board of Directors shall be and is divided into three classes: ClassI, Class II and Class III.     4. Terms of Office. Subject to the rights of holders of any series of Preferred Stockto elect directors, each director shall serve for a term ending on the date of the third annualmeeting following the annual meeting at which such director was elected; provided, that eachdirector initially appointed to Class I shall serve for a term expiring at the Corporation’s annualmeeting of stockholders held in 2005; each director initially appointed to Class II shall serve fora term expiring at the Corporation’s annual meeting of stockholders held in 2006; and each directorinitially appointed to Class III shall serve for a term expiring at the Corporation’s annualmeeting of stockholders held in 2007; provided further, that the term of each director shallcontinue until the election and qualification of his successor and be subject to his earlier death,resignation or removal.     5. Quorum. The greater of (a) a majority of the directors at any time in office and(b) one-third of the number of directors fixed pursuant to Section 2 of this Article NINTH shallconstitute a quorum. If at any meeting of the Board of Directors there shall be lessthan such a quorum, a majority of the directors present may adjourn the meeting from time to timewithout further notice other than announcement at the meeting, until a quorum shall be present.     6. Action at Meeting. Every act or decision done or made by a majority of thedirectors present at a meeting duly held at which a quorum is present shall be regarded as the actof the Board of Directors unless a greater number is required by law or by this Certificate ofIncorporation.     7. Removal. Subject to the rights of holders of any series of Preferred Stock,directors of the Corporation may be removed only for cause and only by the affirmative vote of theholders of at least seventy-five percent (75%) of the votes which all the stockholders would beentitled to cast in any annual election of directors or class of directors.     8. Vacancies. Subject to the rights of holders of any series of Preferred Stock, anyvacancy or newly created directorships in the Board of Directors, however occurring, shall befilled only by vote of a majority of the directors then in office, although less than a quorum, orby a sole remaining director and shall not be filled by the stockholders. A director elected tofill a vacancy shall hold office until the next election of the class for which such director shallhave been chosen, subject to the election and qualification of a successor and to such director’searlier death, resignation or removal.     9. Stockholder Nominations and Introduction of Business, Etc. Advance notice ofstockholder nominations for election of directors and other business to be brought by stockholdersbefore a meeting of stockholders shall be given in the manner provided by the By-laws of theCorporation.
 

 
     10. Amendments to Article. Notwithstanding any other provisions of law, thisCertificate of Incorporation or the By-laws of the Corporation, and notwithstanding the fact that alesser percentage may be specified by law, the affirmative vote of the holders of at leastseventy-five percent (75%) of the votes which all the stockholders would be entitled to cast in anyannual election of directors or class of directors shall be required to amend or repeal, or toadopt any provision inconsistent with, this Article NINTH.     TENTH: Stockholders of the Corporation may not take any action by written consent in lieu of ameeting. Notwithstanding any other provisions of law, this Certificate of Incorporation or theBy-laws of the Corporation, and notwithstanding the fact that a lesser percentage may be specifiedby law, the affirmative vote of the holders of at least seventy-five percent (75%) of the voteswhich all the stockholders would be entitled to cast in any annual election of directors or classof directors shall be required to amend or repeal, or to adopt any provision inconsistent with,this Article TENTH.     ELEVENTH: Special meetings of stockholders for any purpose or purposes may be called at anytime by the Board of Directors, the Chairman of the Board or the Chief Executive Officer, but suchspecial meetings may not be called by any other person or persons. Business transacted at anyspecial meeting of stockholders shall be limited to matters relating to the purpose or purposesstated in the notice of meeting. Notwithstanding any other provision of law, this Certificate ofIncorporation or the By-laws of the Corporation, and notwithstanding the fact that a lesserpercentage may be specified by law, the affirmative vote of the holders of at least seventy-fivepercent (75%) of the votes which all the stockholders would be entitled to cast in any annualelection of directors or class of directors shall be required to amend or repeal, or to adopt anyprovision inconsistent with, this Article ELEVENTH.     TWELFTH: Section 203 of the General Corporation Law of the State of Delaware, as it may beamended from time to time, shall not apply to the Corporation.