**EXHIBIT2.1**

 

 

**AMENDED AND RESTATED CERTIFICATE OFINCORPORATION**

 

**of**

 

**Vaso Active Pharmaceuticals, Inc.**

 

**(Pursuant to Sections 241 and 245 ofthe General Corporation Law of the State of Delaware)**

 

Vaso ActivePharmaceuticals, Inc. (the “corporation”), a corporation organized and existingunder the General Corporation Law of the State of Delaware (the “DelawareGeneral Corporation Law),

 

DOES HEREBYCERTIFY

 

First:  That the name of the corporation is VasoActive Pharmaceuticals, Inc. and the date of its filing of its originalCertificate of Incorporation was January 13, 2003.

 

Second: That thecorporation has not received any payment for any of its stock.

 

Third:  That the Board of Directors of thecorporation duly adopted resolutions proposing to amend and restate theCertificate of Incorporation of the corporation.

 

Fourth:  That the resolution setting forth theproposed amendment is as follows:

 

NOW, THEREFORE, BE ITRESOLVED, the Certificate of Incorporation shall be amended and restated in theform attached as Exhibit A hereto.

 

Fifth:  That set forth below is the Amended andRestated Certificate of Incorporation so approved:

 

1.             The name of thecorporation is Vaso Active Pharmaceuticals, Inc.

 

2.             The address of itsregistered office in the State of Delaware is 1209 Orange Street, in the Cityof Wilmington, County of New Castle. The name of its registered agent at such address is The CorporationTrust Company.

 

3.             The nature of thebusiness or purposes to be conducted or promoted by the corporation is to engagein any lawful act or activity for which corporations may be organized under theGeneral Corporation Law of Delaware.

 

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4.             The total number ofshares of stock which the corporation shall have authority to issue isTwenty-Five Million (25,000,000) shares of capital stock, consisting of:

 

(a)           10,000,000 shares ofPreferred Stock, par value $.0001 per share (the “Preferred Stock”);

 

(b)           10,000,000 shares ofClass A Common Stock, par value $.0001 per share (the “Class A Common Stock”);and

 

(c)           5,000,000 shares ofClass B Common Stock, par value $.0001 per share (the “Class B Common Stock”and together with the Class A Common Stock, “Common Stock”).

 

The designations ,preferences and relative, participating, optional or other special rights, andqualifications, limitations or restrictions thereof, of the Preferred Stock andthe Common Stock shall be as follows:

 

**A.****            PREFERRED STOCK**

 

1.             **Series**.

 

The Preferred Stock may be issued, from time to time, in one or moreseries, with such voting powers, full or limited, or no voting powers, and suchdesignations, preferences and relative, participating, optional or otherspecial rights, and qualifications, limitations or restrictions thereof, asshall be stated and expressed in the resolution or resolutions providing forthe issue of such series adopted by the Board of Directors.  The Board of Directors is authorized toestablish one or more series of the Preferred Stock by resolution orresolutions and in such resolution or resolutions (a copy of which shall be filedand recorded as required by law), is also expressly authorized to fix:

 

(i)            thedistinctive serial designations and the divisions of such shares into seriesand the number of shares of a particular series, which may be increased ordecreased, but not below the number of shares thereof then outstanding, by acertificate made, signed, filed and recorded as required by law;

 

(ii)           theannual dividend rate (or method of determining such rate) for the particularseries, the date or dates upon which such dividends shall be payable, and thedate or dates or method of determining the date or dates shall be cumulative,if dividends on stock of the particular series shall be cumulative;

 

(iii)          the price or prices at which, the period orperiods within which and the terms and conditions upon which the shares of suchseries may be redeemed, in whole or in part, at the option, if any, of thecorporation;

 

(iv)          theright, if any, of the holders of a particular series or the corporation toconvert such stock into other classes or series of stock or to exchange suchstock for shares of any

 

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other class of stock or series thereof, and the termsand conditions, if any, including the price or prices or the date or rates ofconversion and the terms and conditions of any adjustments thereof, of suchconversion and the terms and conditions of any adjustments thereof, of suchconversion;

 

(v)           theobligation, if any, of the corporation to purchase and retire and redeem, inwhole or in part, shares of a particular series as a sinking fund or redemptionor purchase account, the terms thereof and the redemption price or prices pershare for such series redeemed pursuant to the sinking fund or redemptionaccount;

 

(vi)          thevoting rights, if any, of the shares of such series in addition to thoserequired by law, including the number of votes per share and any requirementfor the approval by the holders of up to two thirds of all Preferred Stock, orof the shares of one or more series, or of both, as a condition to specifiedcorporate action or amendments to the certificate of incorporation;

 

(vii)         the ranking of the shares of the series ascompared with shares of other series of the Preferred Stock in respect of theright to receive payments out of the assets of the corporation upon voluntaryor involuntary liquidation, dissolution or winding up of the corporation; and

 

(viii)        any other rights, obligations, or provisionswhich may be so determined to the fullest extent permitted by Delaware law.

 

All shares of any one series of Preferred Stock shallbe alike in every particular and all series shall rank equally and be identicalin all respects in so far as they may vary with respect to the matters whichthe Board of Directors is hereby expressly authorized to determine in theresolution or resolutions providing for the issue of any series of thePreferred Stock.

 

2.             **Ranking**.

 

All shares of PreferredStock shall rank senior to the Common Stock in respect of the right to receivedividends and the right to receive payments out of the assets of thecorporation upon voluntary or involuntary liquidation, dissolution or windingup of the corporation.  The shares ofany one series of Preferred Stock shall be identical with each other in allrespects except as to the dates from and after which dividends thereon shall becumulative.  All shares of PreferredStock redeemed, purchased or otherwise acquired by the corporation (includingshares surrendered for conversion) shall be canceled and thereupon restored tothe status of authorized but unissued Preferred Stock undesignated as toseries.

 

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**B.****            COMMONSTOCK**

 

1.             **GeneralVoting Rights and Powers.**

 

Subject to the rights and preferences of the holders of the PreferredStock and any other class of stock ranking senior to the Common Stock, theholders of shares of Class A Common Stock shall be entitled to ***one*** vote per share onall matters to be voted on by stockholders and holders of shares of Class BCommon Stock shall be entitled to ***three*** votes per share on all matters to be voted on bystockholders. The holders of Class A Common Stock and Class B Common Stockshall vote together as a single class on all matters on which the stockholdersmay vote, except when class voting is required by applicable law or when theholders of Class B Common Stock shall be entitled to vote as a separate classin accordance with Section 2 of this Part B.

 

2.             **SpecialVoting Power of Class B Common Stock**.

 

In addition to the foregoing voting power and any rights provided bylaw, so long as any Class B Common Stock shall be outstanding, the corporationshall not, without first obtaining the affirmative vote or written consent ofthe holders of not less than a majority of the voting power of then—outstandingshares of Class B Common Stock, given in writing or by vote at a meeting,consenting or voting (as the case may be) separately as a class; (i) amend orappeal any provision of, or add any provision to, the corporation’s Restated Articlesof Organization or By-Laws if such action would alter or change thepreferences, rights, privileges or powers of, or the restrictions provided forthe benefit of, the Class B Common Stock; (ii) authorize or issue any new orexisting class or classes or series of capital stock having any voting powersuperior to or on a parity with any voting power of the Class B Common Stock,or authorize or issue shares of stock of any class or any bonds, debentures,notes or other obligations convertible into or exchangeable for, or havingoption rights to purchase, any shares of the capital stock of the corporationhaving any voting power superior to or on a parity with the voting power of theClass B Common Stock; and (iii) reclassify any Class A Common Stock into shareshaving any voting power superior to or on a parity with the voting power of theClass B Common Stock.

 

3.             **NoPreemptive Rights**.

 

Subject to the provisions of Section 6 of this Part B in respect ofClass B Common Stock, no holder of Class A Common Stock or Class B Common Stockshall have any rights, preemptive or other, to subscribe for or to acquire anycapital stock of the corporation solely by reason of the ownership or holdingof any such Class A Common Stock or Class B Common Stock.

 

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4.             **Dividendsand Other Distributions**.

 

Subject to the rights and preferences of the holders of the PreferredStock and any other class of stock ranking senior to the Common Stock, theholders of Class A Common Stock and Class B Common Stock shall be entitled todividends when, as and if declared and paid to the holders of Class A CommonStock and Class B Common Stock; provided that dividends must be paid on boththe Class A Common Stock and the Class B Common Stock at any time thatdividends are paid on either class. Any dividend so declared and payable incash, capital stock of the corporation (other than Class A Common Stock orClass B Common Stock) or other property shall be paid equally, share for share,on the Class A Common Stock and the Class B Common Stock. Dividends anddistributions payable in shares of Class A Common Stock may be paid only onshares of Class A Common Stock and, dividends and distributions payable inshares of Class B Common Stock may be paid only on shares of Class B CommonStock. If a dividend or distribution payable in Class A Common Stock is made onthe Class A Common Stock, the corporation shall also make a simultaneousdividend or distribution on the Class B Common Stock. If a dividend ordistribution payable in Class B Common Stock is made on the Class B CommonStock, the corporation shall also make a simultaneous dividend or distributionon the Class A Common Stock. Pursuant to any such dividend or distribution,each share of Class A Common Stock will receive a number of shares of Class ACommon Stock equal to the number of shares of Class B Common Stock payable oneach share of Class B Common Stock and each share of Class B Common Stock willreceive a number of Class B Common Stock equal to the number of shares of ClassA Common Stock payable on each share of Class A Common Stock.

 

5.             **LiquidationRights**.

 

In the event of the liquidation, dissolution or winding up of thecorporation and subject to the rights and preferences of the holders of thePreferred Stock and any other class of stock ranking senior to or on a paritywith the Common Stock, the holders of the shares of Class A Common Stock andClass B Common Stock shall be entitled to share ratably, share for share, inall assets remaining after payment of all debts and other liabilities of thecorporation available for distribution.

 

6.             **Conversionof Class B Common Stock**.

 

(i)            Eachshare of Class B Common Stock may be converted, at the option of the holder, atany time into one fully-paid and non-assessable share of Class A Common Stockin the manner and subject to adjustment as set forth in Subparagraph (ii) ofthis Section 6.

 

(ii)           The ClassB Common Stock shall be converted into Class A Common Stock in the followingmanner:

 

(a)           Aholder of Class B Common Stock shall give written notice to the corporation bymail of its desire to convert all or a portion of the shares of Class B CommonStock owned by such holder. Such notice shall be accompanied by certificates,duly endorsed for conversion, evidencing the number of shares of Class B CommonStock such holder desires to

 

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convert. The corporation will, as soon as practicable thereafter,deliver to such holder or to such holder’s nominee or nominees, a certificateor certificates for the appropriate number of shares of Class A Common Stock, acertificate representing the balance, if any, of the shares of Class B CommonStock tendered by the surrendered certificate or certificates but not convertedto Class A Common Stock.

 

(b)           If,prior to the date on which all shares of Class B Common Stock are converted,the corporation shall (1) pay a dividend in shares of Class A Common Stock ormake a distribution in shares of Class A Common Stock, (2) subdivide itsoutstanding Class A Common Stock, (3) combine its outstanding Class A CommonStock into a smaller number of shares of Class A Common Stock or (4) issue byreclassification of its Class A Common Stock other securities of thecorporation, the right to convert shall thereupon be adjusted, or, ifnecessary, amended, such that the number of shares of Class A Common Stockreceivable upon conversion of the shares of Class B Common Stock immediatelyprior thereto shall be adjusted so that the holder shall be entitled toreceive, upon the conversion of such shares of Class B Common Stock, the kindand number of shares of Class A Common Stock or other securities of thecorporation which it would have owned or would have been entitled to receiveafter the happening of any of the events described above had the Class B CommonStock been converted immediately prior to the happening of such event or anyrecord date with respect thereto. Any adjustment made pursuant to thissubparagraph (b) shall become effective immediately after the effective date ofsuch event and such adjustment shall be retroactive to the record date, if any,for such event. Except as provided in this subparagraph (C), no adjustment withrespect to any ordinary dividends (made out of current earnings) on shares ofClass A Common Stock shall be made.

 

(c)           If,prior to the date on which the shares of Class B Common Stock are converted,the corporation shall (1) reorganize, reclassify or otherwise change the numberof outstanding shares of Class A Common Stock, (2) consolidate with or mergewith or into another “Person” (as defined in paragraph (h) of this Section6(ii)) resulting in a reclassification, conversion, exchange or cancellation ofoutstanding shares of Class A Common Stock, (3) sell or otherwise transfer allor substantially all of the assets of the corporation, then a holder of Class BCommon Stock shall thereafter have the right to convert such shares of Class BCommon Stock into the kind and amount of stock, securities or assets, if any,such holder would have been entitled to receive upon such reorganization,reclassification, consolidation, merger, sale or transfer had such holderconverted its shares of Class B Common Stock into Class A Common Stockimmediately prior to such transaction.

 

(d)           Ifa holder of Class B Common Stock has delivered notice to the corporation of itsdesire to convert all or a portion of its shares of Class B Common Stock andcertificates, duly endorsed for conversion in respect of such shares, then all sharesof Class B Common Stock so tendered to the corporation shall be deemed to be nolonger outstanding and, notwithstanding the failure of the corporation to issuethe Class A Common Stock, such holder shall be deemed, for all purposes, to bea holder of the number of shares of Class A Common Stock into which the sharesof Class B Common Stock were converted and such holder is entitled to receivepursuant to the terms of this Section F in each case as of the close ofbusiness

 

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on the date on which such conversion notice is delivered.

 

(e)           Thecorporation shall not, by amendment of its Restated Certificate ofIncorporation or through any reorganization, transfer of assets, consolidation,merger, dissolution, issue or sale of securities or any other voluntary action,avoid or seek to avoid the observance or performance of any of the terms to beobserved or performed under this Section F by the corporation but shall at alltimes in good faith assist in the carrying out of all the provisions of thisSection 6.  The corporation shall at alltimes reserve and keep available out of its authorized but unissued Class ACommon Stock the full number of shares of Class A Common Stock deliverable uponthe conversion of all the then outstanding shares of Class B Common Stock andshall take all such action and obtain all such permits or orders as may benecessary to enable the corporation to validly and legally issue fully paid andnon-assessable shares of Class A Common Stock upon the conversion of Class BCommon Stock. The corporation shall obtain prior to or concurrently with thefirst issuance of the Class B Common Stock, and shall use its best efforts tomaintain for as long as any shares of Class B Common Stock shall beoutstanding, the authorization for the listing of shares of Class A CommonStock issuable upon conversion of the Class B Common Stock on the Nasdaq StockMarket National Market and on any national securities exchange on which theClass A Common Stock is listed for trading, as applicable. The corporationshall pay any and all transfer, stamp and other like taxes that may be payablein respect of the issuance or delivery of shares of Class A Common Stock onconversion of the Class B Common Stock.

 

(f)            Sharesof Class B Common Stock which shall have been converted, purchased or otherwisereacquired by the corporation shall be retired and cancelled and shall nolonger be available for issuance.

 

(g)           Inthe event of a “Transfer Event” (as defined in paragraph (h) of this Section6(ii)) in respect of any share of Class B Common Stock, such share shall beautomatically converted into one share of Class A Common Stock as at the timeof the Transfer Event in the same manner and subject to the same adjustments asset forth in paragraphs (a) through (f), inclusive, of this Section 6(ii) as ifwritten notice thereof had been given to the corporation thereunder.

 

(h)           Forpurposes of this Section 6, (1) a “Transfer Event” in respect of a specificholder includes or shall be deemed to have occurred upon (i) any sale,assignment, transfer, pledge or other disposition, including by gift, devise,intestacy, operation of law or otherwise, of any of the shares of the Class BCommon Stock by such holder other than to BioChemics, Inc., a Delawarecorporation (“BioChemics”), or John Masiz (“Masiz”) or to a “Controlled Person”(as defined below) of either of them or such holder, (ii) the holder of Class BCommon Stock voluntarily files a petition under any bankruptcy or insolvency lawor a petition for the appointment of a receiver, or makes an assignment for thebenefit of creditors, (iii) the holder of Class B Common Stock is subjectinvoluntarily to such a petition or assignment or any creditor or other Personobtains an attachment or other legal or equitable interest in any shares of theClass B Common Stock of such holder, and such involuntary petition, assignmentor attachment is not discharged within 180 days after creation, or (iv) if the

 

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holder of Class B Common Stock is required to transfer any such sharesby reason of a judgment, court order or decree from which no appeal may betaken or by operation of law; (2) “Person” shall mean any present or futurenatural person or any corporation, association, partnership, joint venture,limited liability, joint stock or other company, business trust, trust,unincorporated association or other entity of whatsoever nature; (3) a“Controlled Person” shall mean with respect to BioChemics, Masiz or a specifiedholder any Person which is, directly or indirectly, controlled by or underdirect or indirect common control with BioChemics, Masiz or such specifiedholder.  For the purpose of this definition,“Control” when used with respect to any Person means the sole or shared powerto vote, or to direct the voting of, and/or the sole or shared power to disposeof, or to direct the disposition of, shares of Class B Common Stock, directlyor indirectly, through ownership, proxy, or any contract, arrangement,understanding, relationship, or otherwise; and the term “controlled” shall havemeanings correlative to the foregoing.

 

(i)            Determinationswith respect to Transfer Events described in subparagraph (h) of this Section6(ii) shall be made by majority vote of the entire Board of Directors of thecorporation.

 

(j)            Notwithstandinganything contained in this Amended and Restated Certificate of Incorporation tothe contrary, the affirmative vote of the holders of at least two-thirds of thecombined voting power of the outstanding shares of Class A Common Stock andClass B Common Stock, voting together as a single class, shall be required toamend this Part B, or to adopt any provision inconsistent herewith.

 

7.             INTENTIONALLYOMITTED:

 

8.             The corporation is tohave perpetual existence.

 

9.              In furtherance andnot in limitation of the powers conferred by statute, the Board of Directors isexpressly authorized to make, alter or repeal the bylaws of the corporation.

 

10.            The number ofdirectors of the corporation shall be such number, not less than three, asshall be fixed from time to time by the Board of Directors in the mannerprescribed in the bylaws of the corporation. Elections of directors need not be by written ballot unless the bylawsof the corporation shall so provide. Advance notice of stockholder nominationsfor the election of directors and of any other business to be brought beforeany meeting of the stockholders shall be given in the manner provided in thebylaws of the corporation.

 

11.            At each annual meetingof stockholders, directors of the corporation shall be elected to hold officeuntil the expiration of the term for which they are elected, or until theirsuccessors have been duly elected and qualified; except that if any suchelection shall not be so held, such election shall take place at astockholders’ meeting called and held in accordance with the Delaware GeneralCorporation Law.

 

12.            Notwithstandingany other provisions of this Amended and Restated Certificate of

 

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Incorporationor the bylaws of the corporation, any director may be removed, at any time,with or without cause, upon the affirmative vote of the holders of at least 75%of the outstanding shares of capital stock of the corporation entitled to votegenerally in the election of directors (considered for that purpose), provided,however, that removal without cause was first recommended to the stockholdersby action of the Board of Directors pursuant to resolutions duly adopted by 75%of the entire Board of Directors then in office.

 

13.            Meetingsof stockholders may be held within or without the State of Delaware, as thebylaws may provide.  The books of thecorporation 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 fromtime to time by the board of directors or in the bylaws of the corporation.

 

14.            Whenevera compromise or arrangement is proposed between the corporation and its creditorsor any class of them and/or between the corporation and its stockholders or anyclass of them, any court of equitable jurisdiction within the State of Delawaremay, on the application in a summary way of the corporation or of any creditoror stockholder thereof or on the application of any receiver or receiversappointed for the corporation under the provisions of Section 291 ofTitle 8 of the Delaware Code or on the application of trustees indissolution or of any receiver or receivers appointed for the corporation underthe provisions of Section 279 of Title 8 of the Delaware Code, ordera meeting of the creditors or class of creditors and/or of the stockholders orclass of stockholders of the corporation, as the case may be, to be summoned insuch manner as the said court directs. If a majority in number representing at least three-fourths (3/4) invalue of the creditors or class of creditors, and/or of the stockholders orclass of stockholders of the corporation, as the case may be, agree to any compromiseor arrangement and to any reorganization of the corporation as consequence ofsuch compromise or arrangement, the said compromise or arrangement and the saidreorganization shall, if sanctioned by the court to which the said applicationhas been made, be binding on all the creditors or class of creditors, and/or onall of the stockholders or class of stockholders, of the corporation, as thecase may be, and also on the corporation.

 

15.            No director shall bepersonally liable to the corporation or its stockholders for monetary damagesfor breach of fiduciary duty as a director, provided that this provision shallnot limit or eliminate the liability of a director (i) for any breach ofthe director’s duty of loyalty to the corporation or it stockholders,(ii) for acts or omissions not in good faith or which involve intentionalmisconduct or a knowing violation of law, (iii) under Section 174 ofthe General Corporation Law of Delaware, or (iv) for any transaction fromwhich the director derived an improper personal benefit.  If there is any amendment or revocation ofthis provision, the liability of any director for any action taken prior to theamendment or revocation will not be affected thereby.

 

16.            The corporation may,to the fullest extent permitted by applicable law including without limitation,Section 145 of the General Corporation Law of Delaware, as now orhereafter in effect, indemnify any and all persons whom it shall have the powerto indemnify under

 

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said section from andagainst any and all of the expenses, liabilities or other matters referred toin or covered by said section, and the indemnification provided for hereinshall not be deemed exclusive of any other rights to which a person indemnifiedmay be entitled under any by-law, agreement, vote of stockholders ordisinterested directors or otherwise, both as to action in his or her officialcapacity and as to action in another capacity while holding such office, andshall continue as to a person who has ceased to be a director, officer,employee or agent and shall inure to the benefit of the heirs, executors andadministrators of such a person.  Noamendment to or repeal of this provision shall preclude the corporation fromproviding indemnity to any person on account of any acts or omissions occurringprior to such amendment or repeal.

 

Sixth:  That the foregoing amendments were dulyadopted in accordance with the provisions of Sections 241 and 245 of theDelaware General Corporation Law.

 

*** * * * * * * * ***

 

IN WITNESS WHEREOF, thisAmended and Restated Certificate of Incorporation has been signed by thePresident and Chief Executive Officer and the Secretary of the Corporation this      day of July, 2003.

 

 
|   | VASO ACTIVE  PHARMACEUTICALS, INC. |
|--------|------------------------------------|
|   | A Delaware corporation             |
|   |                               |
|   |                               |
|   | By:                                |   |   |
|   | Name:                              | John Masiz, President and Chief  Executive Officer |
|   |                               |
|   |                               |
|   | By:                                |   |   |
|   | Name:  John  Masiz            |
|   | Secretary                          |
|        |                                    |  |  |  |

 

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**CERTIFICATE OF AMENDMENT**

 

**TO THE**

 

**AMENDED AND RESTATED CERTIFICATE OFINCORPORATION**

 

**OF**

 

**VASO ACTIVE PHARMACEUTICALS, INC.**

 

(Pursuant to Section 242 of the Delaware General Corporation Law)

 

Vaso Active Pharmaceuticals, Inc. acorporation organized and existing under and by virtue of the GeneralCorporation Law of the State of Delaware (the “Corporation”),

 

**DOES HEREBY CERTIFY:**

 

**FIRST**:That at a meeting of the Board of Directors of the Corporation held on February19, 2004, resolutions were duly adopted setting forth a proposed amendment tothe Amended and Restated Certificate of Incorporation of the Corporation anddeclaring said amendment to be advisable. The resolution setting forth the proposed amendment is as follows:

 

**RESOLVED**, that the Certificate of Incorporation of the Corporation be furtheramended by deleting the portion of Article 4 thereof that currently reads:

 

“4.           The total number of shares of stock which the corporation shall haveauthority to issue is Twenty-Five Million (25,000,000) shares of capital stock,consisting of:

 

(a)           10,000,000 shares of Preferred Stock, par value $.0001 per share (the“Preferred Stock”);

 

(b)           10,000,000 shares of Class A Common Stock, par value $.0001 per share(the “Class A Common Stock”); and

 

(c)           5,000,000 shares of Class B Common Stock, par value $.0001 per share(the “Class B Common Stock” and together with the Class A Common Stock, “CommonStock”).”

 

andreplacing it in its entirety with the following:

 

“4.           The total number of shares of stock which the corporation shall haveauthority to issue is Forty Million (40,000,000) shares of capital stock,consisting of:

 

(a)           10,000,000 shares of Preferred Stock, par value $.0001 per share (the“Preferred Stock”);

 

(b)           20,000,000 shares of Class A Common Stock, par value $.0001 per share(the “Class A Common Stock”); and

 

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(c)           10,000,000 shares of Class B Common Stock, par value $.0001 per share(the “Class B Common Stock” and together with the Class A Common Stock, “CommonStock”).”

 

**SECOND**:  In lieu of a meeting and vote of thestockholders, the stockholders have given their written consent to theamendment.

 

**THIRD**:That said amendment was duly adopted in accordance with the provisions ofSection 242, 141 and 228 of the General Corporation Law of the State ofDelaware.

 

**FOURTH**:That the capital of the Corporation shall not be reduced under or by reason ofsaid amendment.

 

**IN WITNESS WHEREOF**, the Corporation has caused this certificate to be signed by John J.Masiz, an authorized officer, this 19th day of February, 2004.

 
|   | By:    |                                      |   |
|--------|--------|-------------------------------------------|--------|
|   |   | Title: President/Chief  Executive Officer |
|   |   | Name: John J. Masiz                       |

 

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