**Exhibit 3(a)**

 

RESTATED CERTIFICATE OF INCORPORATION

OF

QUIXOTE CORPORATION

(as amended November 22, 2005)

 

QuixoteCorporation, a corporation organized and existing under the laws of the Stateof Delaware, hereby certifies as follows:

 

1.  (a)  The present name of the Corporationis Quixote Corporation.

 

(b) The name under which the Corporation was originally incorporated is EnergyAbsorption Systems, Inc., and the date of filing the original certificateof incorporation of the Corporation with the Secretary of State of the State ofDelaware is July 14, 1969.

 

2.  The certificate of incorporation of theCorporation is hereby amended by striking Articles One through Ninth thereofand by substituting in lieu thereof new Articles One through Eleventh which areset forth in the Restated Certificate of Incorporation hereinafter providedfor.

 

3.  The provisions of the certificate ofincorporation of the Corporation as heretofore amended and/or supplemented, andas herein amended, are hereby restated and integrated into the singleinstrument which is hereinafter set forth, and which is entitled RestatedCertificate of Incorporation of Quixote Corporation (referred to herein as the “Certificateof Incorporation”) without any further amendments other than the amendmentsherein certified and without any discrepancy between the provisions of thecertificate of incorporation as heretofore amended and supplemented and theprovisions of the said single instrument hereinafter set forth.

 

4.  The amendments and the restatement of therestated certificate of incorporation have been duly adopted by thestockholders in accordance with the provisions of Sections 242 and 245 of theGeneral Corporation Law of Delaware.

 

5.  The certificate of incorporation of theCorporation, as amended and restated herein, shall read in its entirety asfollows:

 

RESTATED CERTIFICATE OF INCORPORATION

 

OF

 

QUIXOTE CORPORATION

 

ARTICLE FIRST

 

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Thename of the Corporation is QUIXOTE CORPORATION.

 

ARTICLE SECOND

 

Theaddress of the Corporation’s registered office in the State of Delaware isCorporation Trust Center, 1209 Orange St., Wilmington, County of New Castle,Delaware 19801 and the name of the Corporation’s registered agent at suchaddress is The Corporation Trust Company.

 

ARTICLE THIRD

 

The purposeof the Corporation is to engage in any lawful act or activity for whichcorporations may be organized under the General Corporation Law of Delaware, asamended from time to time.

 

ARTICLE FOURTH

 

Thetotal number of shares of all classes of capital stock which the Corporationshall have authority to issue is 30,100,000 (thirty million one hundredthousand) shares, 100,000 (one hundred thousand) shares of which shall bePreferred Stock, no par value per share, and 30,000,000 (thirty million) sharesof which shall be Common Stock, par value $.01-2/3 per share.

 

A.  PREFERRED STOCK

 

1.  Series.  The Preferred Stock may be issued from timeto time in one or more series.  Allshares of any one series of Preferred Stock shall be identical in all respects,except that shares of any one series issued on different dates may differ as todates, if any, from which dividends thereon are to cumulate.

 

2.  Preferences.  The Board of Directors of the Corporation isexpressly granted authority, at any time and from time to time by the adoptionof a resolution or resolutions not inconsistent with the provisions of theCertificate of Incorporation of the Corporation, to authorize the issuance bythe Corporation of one or more series of Preferred Stock and to fix and determinewith respect to each such series all the designations, preferences, powers andrelative, participating, optional or other special rights, and thequalifications, limitations or restrictions thereof, to the full extent now orhereafter permitted by law, and including, but without limiting the generalityof the foregoing, the following:

 

a.  The number of shares of such series, whichmay subsequently be increased (except as otherwise provided by the resolutionor resolutions of the Board of Directors providing for the issuance of suchseries) or decreased (to a number not less than the number of shares thenoutstanding) by resolution or resolutions of the Board of Directors, and thedistinctive designation thereof;

 

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b.  The dividend rights of such series, thepreferences, if any, over any other class or series of stock, or of any otherclass or series of stock over such series, as to dividends, the extent, if any,to which shares of such series shall be entitled to participate in dividendswith shares of any other series or class of stock, whether dividends on sharesof such series shall be fully, partially or conditionally cumulative, or acombination thereof, and any limitations, restrictions or conditions on thepayment of such dividends;

 

c.  The rights of such series, and thepreferences, if any, over any other class or series of stock, or of any otherclass or series of stock over such series, in the event of any voluntary orinvoluntary liquidation, dissolution or winding up of the Corporation and theextent, if any, to which shares of any such series shall be entitled toparticipate in such event with any other series or class of stock;

 

d.  Whether or not the shares of such seriesshall be redeemable, and, if redeemable, the date or dates upon or after whichthey shall be redeemable, the amount per share payable thereon in the case ofthe redemption thereof, which amount may vary at different redemption dates;

 

e.  The terms of any purchase, retirement orsinking fund which may be provided for the shares of such series;

 

f.  The right, if any, of holders of shares ofsuch series to convert the same into, or exchange the same for Common Stock,and the terms and conditions of such conversion or exchange, as well asprovisions for adjustment of the conversion rate in such events as the Board ofDirectors shall determine; and

 

g.  The voting powers, if any, of such series inaddition to the voting powers provided by law.

 

3.  Liquidation or Dissolution Rights.  In the event of any liquidation, dissolutionor winding up of the Corporation, whether voluntary or involuntary, the holdersof Preferred Stock of each series shall be entitled to receive only such amountor amounts as shall have been fixed by the Certificate of Incorporation or bythe resolution or resolutions of the Board of Directors providing for theissuance of such series.  Areorganization, consolidation or merger of the Corporation into or with one or moreother corporations or a sale, lease, exchange or other disposition of all orsubstantially all of the assets of the Corporation shall not be deemed to be avoluntary or involuntary liquidation, dissolution or winding up, within themeaning of the Certificate of Incorporation of the Corporation.

 

B.  SERIES A JUNIOR PARTICIPATING PREFERRED STOCK

 

1.  Designation and Amount.  The shares of such series shall be designatedas “Series A Junior Participating Preferred Stock” and the number ofshares constituting such series shall be 10,000.

 

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2.  Dividends and Distributions.

 

a.  Subject to the prior and superior rights ofthe holders of any shares of any series of Preferred Stock ranking prior andsuperior to the shares of Series A Junior Participating Preferred Stockwith respect to dividends, the holders of shares of Series A JuniorParticipating Preferred Stock shall be entitled to receive, when, as and ifdeclared by the Board of Directors out of funds legally available for thepurpose, quarterly dividends payable in cash on the 15th day of March, June,September, and December in each year (each such date being referred toherein as a “Quarterly Dividend Payment Date”), commencing on the firstQuarterly Dividend Payment Date after the first issuance of a share or fractionof a share of Series A Junior Participating Preferred Stock, in an amountper share (rounded to the nearest cent) equal to the greater of (a) $10.00or (b) subject to the provision for adjustment hereinafter set forth,1,000 times the aggregate per share amount of all cash dividends, and 1,000times the aggregate per share amount (payable in kind) of all non-cashdividends or other distributions other than a dividend payable in shares ofCommon Stock or a subdivision of the outstanding shares of Common Stock (byreclassification or otherwise), declared on the Common Stock, par value $.01-2/3per share, of the Corporation since the immediately preceding QuarterlyDividend Payment Date, or, with respect to the first Quarterly Dividend PaymentDate, since the first issuance of any share or fraction of a share of Series AJunior Participating Preferred Stock.  Inthe event the Corporation shall at any time after July 15, 1988 (the “RightsDeclaration Date”) (i) declare any dividend on Common Stock payable inshares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combinethe outstanding Common Stock into a smaller number of shares, then in each suchcase the amount to which holders of shares of Series A Junior ParticipatingPreferred Stock were entitled immediately prior to such event under clause (b) ofthe preceding sentence shall be adjusted by multiplying such amount by afraction the numerator of which is the number of shares of Common Stockoutstanding immediately after such event and the denominator of which is thenumber of shares of Common Stock that were outstanding immediately prior tosuch event.

 

b.  The Corporation shall declare a dividend ordistribution on the Series A Junior Participating Preferred Stock asprovided in paragraph B(2)(a) above immediately after it declares adividend or distribution on the Common Stock (other than a dividend payable inshares of Common Stock); provided that, in the event no dividend ordistribution shall have been declared on the Common Stock during the periodbetween any Quarterly Dividend Payment Date and the next subsequent QuarterlyDividend Payment Date, a dividend of $10.00 per share on the Series AJunior Participating Preferred Stock shall nevertheless be payable on suchsubsequent Quarterly Dividend Payment Date.

 

c.  Dividends shall begin to accrue and becumulative on outstanding shares of Series A Junior ParticipatingPreferred Stock from the Quarterly Dividend Payment Date next preceding thedate of issue of such shares of Series A Junior Participating PreferredStock, unless the date of issue of such shares is prior to the record date for

 

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the first QuarterlyDividend Payment Date, in which case dividends on such shares shall begin toaccrue from the date of issue of such shares, or unless the date of issue is aQuarterly Dividend Payment Date or is a date after the record date for thedetermination of holders of shares of Series A Junior ParticipatingPreferred Stock entitled to receive a quarterly dividend and before suchQuarterly Dividend Payment Date, in either of which events such dividends shallbegin to accrue and be cumulative from such Quarterly Dividend PaymentDate.  Accrued but unpaid dividends shallnot bear interest.  Dividends paid on theshares of Series A Junior Participating Preferred Stock in an amount lessthan the total amount of such dividends at the time accrued and payable on suchshares shall be allocated pro rata on a share-by-share basis among all suchshares at the time outstanding.  TheBoard of Directors may fix a record date for the determination of holders ofshares of Series A Junior Participating Preferred Stock entitled toreceive payment of a dividend or distribution declared thereon, which recorddate shall be no more than 30 days prior to the date fixed for the paymentthereof.

 

3.  Voting Rights.  The holders of shares of Series A JuniorParticipating Preferred Stock shall have the following voting rights:

 

a.  Subject to the provision for adjustmenthereinafter set forth, each share of Series A Junior ParticipatingPreferred Stock shall entitle the holder thereof to one vote on all matterssubmitted to a vote of the stockholders of the Corporation.  In the event the Corporation shall at anytime after the Rights Declaration Date (i) declare any dividend on CommonStock payable in shares of Common Stock, (ii) subdivide the outstandingCommon Stock, or (iii) combine the outstanding Common Stock into a smallernumber of shares, then in each such case the number of votes per share to whichholders of shares of Series A Junior Participating Preferred Stock wereentitled immediately prior to such event shall be adjusted by multiplying suchnumber by a fraction the numerator of which is the number of shares of CommonStock outstanding immediately after such event and the denominator of which isthe number of shares of Common Stock that were outstanding immediately prior tosuch event.

 

b.  Except as otherwise provided herein or by law,the holders of shares of Series A Junior Participating Preferred Stock andthe holders of shares of Common Stock shall vote together as one class on allmatters submitted to a vote of stockholders of the Corporation.

 

c.  (i)  If at any time dividends on any Series AJunior Participating Preferred Stock shall be in arrears in an amount equal tosix (6) quarterly dividends thereon, the occurrence of such contingencyshall mark the beginning of a period (herein called a “default period”) whichshall extend until such time when all accrued and unpaid dividends for allprevious quarterly dividend periods and for the current quarterly dividendperiod on all shares of Series A Junior Participating Preferred Stock thenoutstanding shall have been declared and paid or set apart for payment.  During each default period, all holders ofPreferred Stock (including holders of the Series A Junior ParticipatingPreferred Stock) with dividends in arrears in an amount equal to six (6)

 

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quarterly dividendsthereon, voting as a class, irrespective of series, shall have the right toelect two (2) Directors.

 

(ii)  During any default period, such votingright of the holders of Series A Junior Participating Preferred Stock maybe exercised initially at a special meeting called pursuant to subparagraph (iii) ofthis Section 3(c) or at any annual meeting of stockholders, andthereafter at annual meetings of stockholders, provided that neither suchvoting right nor the right of the holders of any other series of PreferredStock, if any, to increase, in certain cases, the authorized number ofDirectors shall be exercised unless the holders of ten percent (10%) in numberof shares of Preferred Stock outstanding shall be present in person or byproxy.  The absence of a quorum of theholders of Common Stock shall not affect the exercise by the holders ofPreferred Stock of such voting right.  Atany meeting at which the holders of Preferred Stock shall exercise such votingright initially during an existing default period, they shall have the right,voting as a class, to elect Directors to fill such vacancies, if any, in theBoard of Directors as may then exist up to two (2) Directors or, if suchright is exercised at an annual meeting, to elect two (2) Directors.  If the number which may be so elected at anyspecial meeting does not amount to the required number, the holders of thePreferred Stock shall have the right to make such increase in the number ofDirectors as shall be necessary to permit the election by them of the requirednumber.  After the holders of thePreferred Stock shall have exercised their right to elect Directors in anydefault period and during the continuance of such period, the number ofDirectors shall not be increased or decreased except by vote of the holders ofthe Preferred Stock as herein provided or pursuant to the rights of any equitysecurities ranking senior to or paripassu with the Series AJunior Participating Preferred Stock.

 

(iii)  Unless the holders of Preferred Stockshall, during an existing default period, have previously exercised their rightto elect Directors, the Board of Directors may order, or any stockholder orstockholders owning in the aggregate not less than ten percent (10%) of thetotal number of shares of Preferred Stock outstanding, irrespective of series,may request, the calling of a special meeting of the holders of PreferredStock, which meeting shall thereupon be called by the President, aVice-President or the Secretary of the Corporation.  Notice of such meeting and of any annualmeeting at which holders of Preferred Stock are entitled to vote pursuant tothis paragraph (c) (iii) shall be given to each holder of record ofPreferred Stock by mailing a copy of such notice to him at his last address asthe same appears on the books of the Corporation.  Such meeting shall be called for a time notearlier than 20 days and not later than 60 days after such order or request orin default of the calling of such meeting within 60 days after such order orrequest, such meeting may be called on similar notice by any stockholder orstockholders owning in the aggregate not less than ten percent (10%) of thetotal number of shares of Preferred Stock outstanding.  Notwithstanding the provisions of thisparagraph (c) (iii), no such special meeting shall be called during theperiod within 60 days immediately preceding the date fixed for the next annualmeeting of the stockholders.

 

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(iv)  In any default period, the holders ofCommon Stock, and other classes of stock of the Corporation if applicable,shall continue to be entitled to elect the whole number of Directors until theholders of Preferred Stock shall have exercised their right to elect two (2) Directorsvoting as a class, after the exercise of which right (x) the Directors soelected by the holders of Preferred Stock shall continue in office until theirsuccessors shall have been elected by such holders or until the expiration ofthe default period, and (y) any vacancy in the Board of Directors may (exceptas provided in paragraph (c) (ii) of this Section 3) be filledby vote of a majority of the remaining Directors theretofore elected by theholders of the class of stock which elected the Director whose office shallhave become vacant.  References in thisparagraph (c) to Directors elected by the holders of a particular class ofstock shall include Directors elected by such Directors to fill vacancies asprovided in clause (y) of the foregoing sentence.

 

(v)  Immediately upon the expiration of a defaultperiod, (x) the right of the holders of Preferred Stock as a class to electDirectors shall cease, (y) the term of any Directors elected by the holders ofPreferred Stock as a class shall terminate, and (z) the number of Directorsshall be such number as may be provided for in the certificate of incorporationor by-laws irrespective of any increase made pursuant to the provisions ofparagraph (c) (ii) of this Section 3 (such number being subject,however, to change thereafter in any manner provided by law or in thecertificate of incorporation or by-laws). Any vacancies in the Board of Directors effected by the provisions ofclauses (y) and (z) in the preceding sentence may be filled by a majority ofthe remaining Directors.

 

d.  Except asset forth herein, holders of Series A Junior Participating Preferred Stockshall have no special voting rights and their consent shall not be required(except to the extent they are entitled to vote with holders of Common Stock asset forth herein) for taking any corporate action.

 

4.  Certain Restrictions.

 

a.  Whenever quarterly dividends or otherdividends or distributions payable on the Series A Junior ParticipatingPreferred Stock as provided in Section B(2) are in arrears,thereafter and until all accrued and unpaid dividends and distributions,whether or not declared, on shares of Series A Junior ParticipatingPreferred Stock outstanding shall have been paid in full, the Corporation shallnot:

 

(i)  declare or pay dividends on, make any otherdistributions on, or redeem or purchase or otherwise acquire for considerationany shares of stock ranking junior (either as to dividends or upon liquidation,dissolution or winding up) to the Series A Junior Participating PreferredStock;

 

(ii)  declare or pay dividends on or make anyother distributions on any shares of stock ranking on any parity (either as todividends or upon liquidation, dissolution or winding up) with the Series AJunior Participating Preferred Stock, except dividends paid ratably on the Series AJunior Participating Preferred Stock and all such parity

 

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stock on which dividendsare payable or in arrears in proportion to the total amounts to which the holdersof all such shares are then entitled;

 

(iii)  redeem orpurchase or otherwise acquire for consideration shares of any stock ranking ona parity (either as to dividends or upon liquidation, dissolution or windingup) with the Series A Junior Participating Preferred Stock, provided thatthe Corporation may at any time redeem, purchase or otherwise acquire shares ofany such parity stock in exchange for shares of any stock of the Corporationranking junior (either as to dividends or upon dissolution, liquidation orwinding up) to the Series A Junior Participating Preferred Stock;

 

(iv)  purchaseor otherwise acquire for consideration any shares of Series A JuniorParticipating Preferred Stock, or any shares of stock ranking on a parity withthe Series A Junior Participating Preferred Stock, except in accordancewith a purchase offer made in writing or by publication (as determined by theBoard of Directors) to all holders of such shares upon such terms as the Boardof Directors, after consideration of the respective annual dividend rates andother relative rights and preferences of the respective series and classes,shall determine in good faith will result in fair and equitable treatment amongthe respective series or classes.

 

b.  The Corporation shall not permit anysubsidiary of the Corporation to purchase or otherwise acquire forconsideration any shares of stock of the Corporation unless the Corporationcould, under paragraph (a) of this Section 4, purchase or otherwiseacquire such shares at such time and in such manner.

 

5.  Required Shares.  Any shares of Series A JuniorParticipating Preferred Stock purchased or otherwise acquired by theCorporation in any manner whatsoever shall be retired and canceled promptlyafter the acquisition thereof.  All suchshares shall upon their cancellation become authorized but unissued shares ofPreferred Stock and may be reissued as part of a new series of Preferred Stockto be created by resolution or resolutions of the Board of Directors, subjectto the conditions and restrictions on issuance set forth herein.

 

6.  Liquidation, Dissolution or Winding Up.

 

a.  Upon any liquidation (voluntary orotherwise), dissolution or winding up of the Corporation, no distribution shallbe made to the holders of shares of stock ranking junior (either as todividends or upon liquidation, dissolution or winding up) to the Series AJunior Participating Preferred Stock unless, prior thereto, the holders ofshares of Series A Junior Participating Preferred Stock shall havereceived $500 per share, plus an amount equal to accrued and unpaid dividendsand distributions thereon, whether or not declared, to the date of such payment(the “Series A Liquidation Preference”). Following the payment of the full amount to the Series A LiquidationPreference, no additional distributions shall be made to the holders of sharesof Series A Junior Participating Preferred Stock unless, prior thereto,the holders of shares of Common Stock shall have received an amount per share(the “Common Adjustment”) equal to

 

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the quotient obtained bydividing (i) the Series A Liquidation Preference by (ii) 1,000(as appropriately adjusted as set forth in subparagraph c below to reflect suchevents as stock splits, stock dividends and recapitalizations with respect tothe Common Stock) (such number in clause (ii); the (“Adjustment Number”).  Following the payment of the full amount ofthe Series A Liquidation Preference and the Common Adjustment in respectof all outstanding shares of Series A Junior Participating Preferred Stockand Common Stock, respectively, holders of Series A Junior ParticipatingPreferred Stock and holders of shares of Common Stock shall receive theirratable and proportionate share of the remaining assets to be distributed inthe ratio of the Adjustment Number to 1 with respect to such Preferred Stockand Common Stock, on a per share basis, respectively.

 

b.  In the event, however, that there are notsufficient assets available to permit payment in full of the Series ALiquidation Preference and the liquidation preferences of all other series ofpreferred stock, if any, which rank on a parity with the Series A JuniorParticipating Preferred Stock, then such remaining assets shall be distributedratably to the holders of such parity shares in proportion to their liquidationpreferences.  In the event, however, thatthere are not sufficient assets available to permit payment in full of theCommon Adjustment, then such remaining assets shall be distributed ratably tothe holders of Common Stock.

 

c.  In the event that the Corporation shall atany time after the Rights Declaration Date (i) declare any dividend onCommon Stock payable in shares of Common Stock, (ii) subdivide theoutstanding Common Stock, or (iii) combine the outstanding Common Stockinto a smaller number of shares, then in each such case the Adjustment Numberin effect immediately prior to such event shall be adjusted by multiplying suchAdjustment Number by a fraction the numerator of which is the number of sharesof Common Stock outstanding immediately after such event and the denominator ofwhich is the number of shares of Common Stock that were outstanding immediatelyprior to such event.

 

7.  Consolidation, Merger, etc.  In case the Corporation shall enter into anyconsolidation, merger, combination or other transaction in which the shares ofCommon Stock are exchanged for or changed into other stock or securities, cashand/or any other property, then in any such case the shares of Series AJunior Participating Preferred Stock shall at the same time be similarlyexchanged or changed in an amount per share (subject to the provision foradjustment hereinafter set forth) equal to 1,000 times the aggregate amount ofstock, securities, cash and/or any other property (payable in kind), as thecase may be, into which or for which each share of Common Stock is changed orexchanged.  In the event the Corporationshall at any time after the Rights Declaration Date (i) declare anydividend on Common Stock payable in shares of Common Stock, (ii) subdividethe outstanding Common Stock, or (iii) combine the outstanding CommonStock into a smaller number of shares, then in each such case the amount setforth in the preceding sentence with respect to the exchange or change ofshares of Series A Junior Participating Preferred Stock shall be adjustedby multiplying such amount by a fraction the numerator of which is the numberof shares of

 

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Common Stock outstandingimmediately after such event and the denominator of which is the number ofshares of Common Stock that were outstanding immediately prior to such event.

 

8.  No Redemption.  The share of Section A JuniorParticipating Preferred Stock shall not be redeemable.

 

9.  Ranking.  The Series A Junior ParticipatingPreferred Stock shall rank junior to all other series of the Corporation’sPreferred Stock as to the payment of dividends and the distribution of assets,unless the terms of any such series shall provide otherwise.

 

10.  Amendment.  The Restated Certificate of Incorporation ofthe Corporation shall not be further amended in any manner which wouldmaterially alter or change the powers, preferences or special rights of the Series AJunior Participating Preferred Stock so as to affect them adversely without theaffirmative vote of the holders of a majority or more of the outstanding sharesof Series A Junior Participating Preferred Stock, voting separately as aclass.

 

11.  Fractional Shares.  Series A Junior Participating PreferredStock may be issued in fractions of a share which shall entitle the holder, inproportion to such holder’s fractional shares, to exercise voting rights,receive dividends, participate in distributions and to have the benefit of allother rights of holders of Series A Junior Participating Preferred Stock.

 

C.  COMMON STOCK

 

Subjectto the rights of the holders of the Preferred Stock as provided in theforegoing Part A, the holders of Common Stock shall, except as otherwise providedby law or by the provisions of the Certificate of Incorporation, as from timeto time amended, (1) be entitled to one vote for each share held by them,respectively, on all matters acted upon at any meeting of stockholders, (2) beentitled to dividends when and as declared by the Board of Directors of theCorporation out of funds legally available therefor, and (3) upon anyvoluntary or involuntary liquidation, dissolution or winding up of theCorporation be entitled to share with the Preferred Stock in the assets of theCorporation available for distribution to its stockholders.

 

D.  OTHER PROVISIONS

 

1.  No holder of stock of any class of theCorporation nor of any security convertible into, nor of any warrant, option orright to purchase, subscribe for or otherwise acquire, stock of any class ofthe Corporation, whether now or hereafter authorized, shall as such holder,have any preemptive right whatsoever to purchase, subscribe for or otherwiseacquire, stock of any class of the Corporation nor of any security convertibleinto, nor of any warrant, option or right to purchase, subscribe for orotherwise acquire, stock of any class of the Corporation, whether now orhereafter authorized.

 

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2.  Anything contained in the Certificate ofIncorporation of the Corporation to the contrary notwithstanding, any and allright, title, interest, and claim in or to any dividends declared, or otherdistributions made, by the Corporation, whether in cash, stock or otherwise,which are unclaimed by the stockholder entitled thereto (a) with respectto any distribution upon the liquidation, dissolution or winding up of theCorporation, for a period of three years after the close of business on thepayment date (or such other period as the Corporation may be required tocontinue in existence under the General Corporation Law of Delaware, as amendedfrom time to time), and (b) with respect to any other distribution, for aperiod of six years after the close of business on the payment date, shall beand be deemed to be extinguished and abandoned. Such unclaimed distribution in the possession of the Corporation, itstransfer agents or other agents or depositaries, shall at such time become theabsolute property of the Corporation, free and clear of any and all claims ofany persons whatsoever.  The Board ofDirectors of the Corporation, in its sole discretion may make distributionsdescribed in (a) above to such known stockholders of record (as of theoriginal payment date) upon a pro rata basis in the manner as the Board ofDirectors may determined or, in lieu of such final distribution, may set asidesuch unclaimed amount in an escrow fund.

 

3.  Unless otherwise provided by the GeneralCorporation Law of Delaware, and notwithstanding any provision herein to thecontrary except as provided in the second sentence of this paragraph, theaffirmative vote of the holders of at least sixty percent (60%) of the votesentitled to be cast by the holders of the issued and outstanding shares of theCorporation shall be necessary to (a) amend the Corporation’s Certificateof Incorporation; (b) adopt or approve any agreement or plan of merger orconsolidation or any transaction including a merger or consolidation of theCorporation; (c) elect directors; (d) transfer all or substantiallyall of the Corporation’s property and assets; and (e) adopt or approve aplan of liquidation or dissolution of the Corporation.  The affirmative vote of the holders of atleast 65% of the outstanding Voting Stock, as defined in Article Fifth,voting together as a single class, shall be required to amend or repeal, oradopt any provisions inconsistent with, paragraphs 3 and 4 of Part D of Article Fourth,Article Seventh and Article Fifth.

 

4.  Any action required or permitted to be takenby the holders of any class of stock of the Corporation must be effected at aduly called annual or special meeting of such holders and may not be effectedby any consent in writing by such holders. Except as otherwise required by law and subject to the rights of theholders of any class or series of stock having a preference over the CommonStock as to dividends or upon liquidation, special meetings of stockholders ofthe Corporation may be called only by the Board of Directors pursuant to aresolution approved by a majority of the entire Board of Directors or asotherwise provided in the By-laws of the Corporation.

 

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ARTICLE FIFTH

 

A.  Repurchaseof Voting Stock

 

Anypurchase by the Corporation of shares of Voting Stock (as hereinafter defined)from an Interested Stockholder (as hereinafter defined), other than pursuant toan offer to the holders of all of the outstanding shares of the same class asthose so purchased, at a per share price in excess of the Market Price (ashereinafter defined), at the time of such purchase, of the shares so purchased,shall require the affirmative vote of the holders of a majority of the votingpower of the Voting Stock not beneficially owned by the Interested Stockholder,voting together as a single class.

 

1.  Business Transactions.

 

a.  In addition to any affirmative vote requiredby law or this Certificate of Incorporation:

 

(1) any merger or consolidation of the Corporation or any Subsidiary (ashereinafter defined) with (a) any Interested Stockholder or (b) anyother corporation (whether or not itself an Interested Stockholder) which is,or after such merger or consolidation would be, an Affiliate (as hereinafterdefined) of an Interested Stockholder; or

 

(2) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (inone transaction or a series of transactions) to or with any InterestedStockholder or any Affiliate of any Interested Stockholder of any assets of theCorporation or any Subsidiary having an aggregate Fair Market Value (ashereafter defined) of $10,000,000 or more; or

 

(3) the issuance or transfer by the Corporation or any Subsidiary (in onetransaction or a series of transactions) of any securities of the Corporationor any Subsidiary to any Interested Stockholder or any Affiliate of anyInterested Stockholder in exchange for cash, securities or other property (or acombination thereof) having an aggregate Fair Market Value of $10,000,000 ormore; or

 

(4) the adoption of any plan or proposal for the liquidation or dissolution of theCorporation proposed by or on behalf of an Interested Stockholder or anyAffiliate of any Interested Stockholder; or

 

(5) any reclassification of securities (including any reverse stock split), orrecapitalization of the Corporation, or any merger or consolidation of theCorporation with any of its Subsidiaries or any other transaction (whether ornot with or into or otherwise involving an Interested Stockholder) which hasthe effect, directly or indirectly, of increasing the proportionate share ofthe outstanding shares of any class of equity or convertible securities of theCorporation or any Subsidiary which is directly or indirectly owned by anyInterested Stockholder or any Affiliate of any Interested Stockholder;

 

shall require theaffirmative vote of the holders of sixty percent (60%) of the voting power ofthe Voting Stock not beneficially owned by any Interested Stockholder, voting

 

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together as a singleclass; provided, however, that no such vote shall be required for the purchaseby the Corporation of shares of Voting Stock from an Interested Stockholderunless such vote is required by Part A of this Article Fifth.

 

b.  The provisions of paragraph 1(a) of Part Bof this Article Fifth shall not be applicable to any particular BusinessTransaction (as hereinafter defined) and such Business Transaction shallrequire only such affirmative vote as is required by law and any other Article ofthis Certificate of Incorporation, if all of the conditions specified in eitherof the following sub-paragraphs (1) or (2) are satisfied:

 

(1)  The Business Transaction shall have beenapproved by a majority of the Disinterested Directors (as hereinafter defined).

 

(2)  All of the following conditions shall havebeen satisfied:

 

(i)  The aggregate amount of the cash and theFair Market Value, as of the date of the consummation of the BusinessTransaction, of consideration other than cash to be received per share byholders of Voting Stock in such Business Transaction shall be at least equal tothe higher of (x) the highest price paid for any share of Voting Stock by anyperson who is an Interested Stockholder within the two-year period immediatelyprior to the time of the first public announcement of the proposed BusinessTransaction (the “Announcement Date”) or in the transaction in which suchperson became an Interested Stockholder, whichever price is the higher; or (y)the Fair Market Value per share of the Corporation’s Voting Stock on theAnnouncement Date or on the date on which the Interested Stockholder became anInterested Stockholder (the “Determination Date”), whichever is higher.  The price paid for any share of Voting Stockshall be the amount of cash plus the Fair Market Value of any otherconsideration to be received therefor, determined at the time of paymentthereof.

 

(ii)  The consideration to be received by holdersof a particular class of outstanding Voting Stock shall be in cash or in thesame form as the Interested Stockholder has previously paid for shares of suchclass of Voting Stock.  If the InterestedStockholder has paid for shares of any class of Voting Stock with varying formsof consideration, the form of consideration for such class of Voting Stockshall be either cash or the form of consideration used to acquire the largestnumber of shares of such class of Voting Stock previously acquired by theInterested Stockholder.

 

(iii)  After such Interested Stockholder has becomean Interested Stockholder and prior to the consummation of such BusinessTransaction:

 

(x)  there shallhave been (aa) no reduction in the annual rate of dividends paid on the VotingStock (except as necessary to reflect any subdivision of the Voting Stock),except as approved by a majority of the Disinterested Directors, and (bb) anincrease in such annual rate of dividends as necessary to reflect anyreclassification (including any reverse stock split), recapitalization,reorganization or any similar transaction which has the effect of reducing thenumber of outstanding shares of the

 

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Common Stock, unless thefailure to so increase such annual rate is approved by a majority of theDisinterested Directors; and

 

(y)  suchInterested Stockholder shall have not become the beneficial owner of anyadditional shares of Voting Stock except as part of the transaction whichresults in such Interested Stockholder becoming an Interested Stockholder.

 

(iv)  After such Interested Stockholders hasbecome an Interested Stockholder, such Interested Stockholder shall not havereceived the benefit, directly or indirectly (except proportionately as astockholder), of any loans, advances, guarantees, pledges or other financialassistance or any tax credits or other tax advantages provided by theCorporation, whether in anticipation of or in connection with such BusinessTransaction or otherwise.

 

(v)  A proxy or information statement describingthe proposed Business Transaction and complying with the requirements of theSecurities Exchange Act of 1934 and the rules and regulations thereunder(or any subsequent provisions replacing such Act, rules or regulations)shall be mailed to all stockholders of the Corporation at least 30 days priorto the consummation of such Business Transaction (whether or not such proxy orinformation statement is required to be mailed pursuant to such Act orsubsequent provisions).

 

2.  Cumulative Voting.  In any election of directors of the Corporationon or after the date on which any 60% Stockholder (as hereinafter defined)becomes a 60% Stockholder, and until such time as no 60% Stockholder any longerexists, there shall be cumulative voting for the election of directors so thatany holder of shares of Voting Stock entitled to vote in such election maycumulate such stockholder’s votes and give one candidate a number of votesequal to the number of directors to be elected multiplied by the number ofvotes to which stockholder’s shares are entitled, or distribute suchstockholder’s votes on the same principle among as many candidates as suchstockholder sees fit.  From and after thedate on which any 60% Stockholder becomes a 60% Stockholder, and until suchtime as no 60% Stockholder any longer exists, any person who is the beneficialowner (as hereinafter defined) of shares of Voting Stock with a Market Price of$100,000 or more shall have the right to nominate one or more candidates forelection to the Board of Directors of the Corporation in any election ofdirectors to be held, and such candidates shall be entitled to include in anyproxy statement or other communication with respect to such election to be sentto the holders of shares of Voting Stock by the Corporation during such period,at the expense of the Corporation, descriptions and other statements of suchcandidates which shall receive equal space, coverage and treatment as isreceived by candidates nominated by the Board of Directors or management of theCorporation.

 

3.  Interested Stockholder Obligations.  It shall be the duty of any InterestedStockholder:

 

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(i) to give or cause to be given written notice to the Corporation, immediatelyupon becoming an Interested Stockholder, of such person’s status as anInterested Stockholder and of such other information as the Corporation mayreasonably require with respect to identifying all owners and amount ofownership of the outstanding Voting Stock of which such Interested Stockholderis a beneficial owner (as defined herein), and

 

(ii) in any election or vote provided for or required by this Article Fifth, toidentify clearly the votes cast in such election or vote that represent sharesof Voting Stock beneficially owned by such Interested Stockholder, byindication on any proxy or proxies given by the Interested Stockholder, bywritten notice to the Corporation or by equally effective means;

 

provided, however, thatthe failure of an Interested Stockholder to comply with the provisions of thisparagraph 3 shall not in any way be construed to prevent the Corporation fromenforcing the provisions of paragraphs 1 and 2 of this Part B and Part Aof Article Fifth.

 

C.  Definitions

 

1.  Definitions.  For the purposes of this Article Fifth,the following definitions shall apply.

 

a.  A “person” shall mean any individual, firmcorporation or other entity.

 

b.  “Voting Stock” shall mean the outstandingshares of capital stock of the Corporation entitled to vote generally in theelection of directors.  In any voterequired by or provided for in this Article Fifth, each share of VotingStock shall have the number of votes granted to it generally in the election ofdirectors.

 

c.  “Interested Stockholder” shall mean anyperson (other than the Corporation or any Subsidiary) who or which:

 

(i)  is the beneficial owner, directly orindirectly, of more than 5% of the voting power of the outstanding VotingStock; or

 

(ii)  is an Affiliate of the Corporation and atany time within the two-year period immediately prior to the date in questionwas the beneficial owner, directly or indirectly, of 5% or more of the votingpower of the then outstanding Voting Stock; or

 

(iii)  is an assignee of or has otherwisesucceeded to any shares of Voting Stock which were at any time within thetwo-year period immediately prior to the date in question beneficially owned byany Interested Stockholder, if such assignment or succession shall haveoccurred in the course of a transaction or series of transactions not involvingan public offering within the meaning of the Securities Act of 1933.

 

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d.  “60% Stockholder” shall mean any person(other than the Corporation or any Subsidiary) who or which:

 

(1)  is the beneficial owner, directly orindirectly, of 60% or more of the voting power of the outstanding Voting Stock;or

 

(2)  is an Affiliate of the Corporation and atany time within the two-year period immediately prior to the date in questionwas the beneficial owner, directly or indirectly, of 60% or more of the votingpower of the then outstanding Voting Stock; or

 

(3)  is an assignee of or has otherwise succeededto any shares of Voting Stock which were at any time within the two-year periodimmediately prior to the date in question beneficially owned by any 60%Stockholder, if such assignment or succession shall have occurred in the courseof a transaction or series of transactions not involving a public offeringwithin the meaning of the Securities Act of 1933.

 

e.   Aperson shall be a “beneficial owner” of any Voting Stock:

 

(1)  which such person or any of its Affiliatesor Associates (as hereinafter defined) beneficially owns, directly orindirectly; or

 

(2)  which such person or any of its Affiliatesor Associates has (a) the right to acquire (whether such right isexercisable immediately or only after the passage of time), pursuant to anyagreement, arrangements or understanding or upon the exercise of conversionrights, exchange rights, warrants or options, or otherwise, or (b) theright to vote pursuant to any agreement, arrangement or understanding; or

 

(3)  which are beneficially owned, directly orindirectly, by any other person with such person or any of its Affiliates orAssociates has any agreement, arrangement or understanding for the purpose ofacquiring, holding, voting or disposing of any shares of Voting Stock.

 

f.   Forthe purposes of determining whether a person is an Interested Stockholder or a60% Stockholder pursuant to sub-paragraphs c and d of this paragraph 1, thenumber of shares of Voting Stock deemed to be outstanding shall include sharesdeemed owned through application of sub-paragraph e of this paragraph 1 butshall not include any other shares of Voting Stock which may be issuablepursuant to any agreement, arrangement or understanding, or upon exercise ofconversion rights, warrants or options, or otherwise.

 

g.  “Affiliate” and “Associate” shall have therespective meaning ascribed to such terms in Rule 12b-2 of the General Rules andRegulations under the Securities Exchange Act of 1934, as in effect on December 31,1984.

 

h.  “Subsidiary” means any corporation of which amajority of any class of equity security is owned directly or indirectly, bythe Corporation; provided, however, that for

 

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the purposes of thedefinitions of Interested Stockholder and 60% Stockholder set forth insub-paragraphs c and d of this paragraph 1, the term “Subsidiary” shall meanonly a corporation of which a majority of the voting power of the capital stockentitled to vote generally in the election of directors is owned, directly orindirectly, by the Corporation.

 

i.  “Market Price” means:  the last closing sale price immediatelypreceding the time in question of a share of the stock in question on theComposite Tape for New York Stock Exchange-Listed Stocks, or, if such stock isnot quoted on the Composite Tape, on the New York Stock Exchange, or, if suchstock is not listed on such Exchange, on the principal United States securitiesexchange registered under the Securities Exchange Act of 1934 on which suchstock is listed, or, if such stock is not listed on any such Exchange, the lastclosing bid quotation with respect to a share of such stock immediatelypreceding the time in question on the National Association of SecuritiesDealers, Inc. Automated Quotations System or any system then in use (orany other system of reporting or ascertaining quotations then available), or ifsuch stock is not so quoted, the fair market value at the time in question of ashare of such stock as determined by the Board of Directors in good faith.

 

j.  “Fair Market Value” means (i) in thecase of stock, the Market Price, and (ii) in the case of property otherthan cash or stock, the fair market value of such property on the date inquestion as determined by the Board of Directors in good faith.

 

k.  “Disinterested Director” means any member ofthe Board of Directors of the Corporation (the “Board”) who is unaffiliatedwith the Interested Stockholder and was a member of the Board prior to the timethat the Interested Stockholder became an Interested Stockholder, and anysuccessor of a Disinterested Director who is unaffiliated with the InterestedStockholder and is recommended to succeed a Disinterested Director by amajority of Disinterested Directors then on the Board.

 

l.  “Business Transaction” means any transactionreferred to in any one or more of the clauses (i) through (v) ofparagraph 1(a) of Part B.

 

m.  In the event of any Business Transaction inwhich the Corporation survives, the phrase “consideration to be received” asused in paragraph 1(b)(2)(i) and (ii) of Part B shall includeshares of Voting Stock retained by the holders of such shares.

 

2.  Directors Duty to Determine Certain Facts.  The majority of the Disinterested Directorsof the Corporation shall have the power and duty to determine for the purposeof this Article Fifth, on the basis of information known to them afterreasonable inquiry, all facts necessary to determine the applicability of thevarious provisions of this Article Fifth, including, (i) whether aperson is an Interested Stockholder or a 60% stockholder, (ii) the numberof shares of Voting Stock beneficially owned by any person, (iii) whethera person is an Affiliate or Associate of another, (iv) whether therequirements of paragraph 1(b)(2) of Part B have been met withrespect to any Business Transaction, and (v) whether the assets which arethe subject of any Business Transaction have, or the consideration to bereceived for the issuance or transfer of securities by the

 

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Corporation or anySubsidiary in any Business Transaction has, an aggregate Fair Market Value of$10,000,000 or more.  The good faithdetermination of a majority of the Disinterested Directors shall be conclusiveand binding for all purposes of this Article Fifth.

 

3.  No Effect on Fiduciary Obligations ofInterested Stockholders.  Nothingcontained in this Article Fifth shall be construed to relieve anyInterested Stockholder from any fiduciary obligation imposed by law.

 

ARTICLE SIXTH

 

Additionalprovisions relating to the business of the Corporation, its affairs, its rightsor its powers, or the rights or powers of its stockholders, directors orofficers, in furtherance of its business and purposes, and not in limitation ofthe general powers now or hereafter conferred upon corporations formed underthe General Corporation Law of Delaware, are as follows:

 

1.  All of the powers conferred upon corporationsformed under the General Corporation Law of Delaware, as amended from time totime, and the Certificate of Incorporation of the Corporation, may be exercisedby the Board of Directors of the Corporation, except as may be providedotherwise by law, the Certificate of Incorporation of the Corporation, or theby-laws of the Corporation.

 

2.  The books and records of the Corporation maybe kept outside the State of Delaware at such place or places as may from timeto time be designated by the Board of Directors or in the by-laws of theCorporation.

 

3.  Subject to the General Corporation Law ofDelaware, the by-laws shall determine the circumstances under which, and themanner in which, the stockholders shall be permitted to inspect the books, accountsand documents of the Corporation.

 

4.  No election of directors need be by writtenballot unless the by-laws shall otherwise provide.

 

5.  In the event that the Corporation payscriminal penalties or civil damages, either voluntarily or involuntarily andeither as a result of a judgment against it which has become final or inavoidance thereof, neither the Corporation, the Board of Directors nor theofficers shall be required to seek or obtain nor shall the directors orofficers be personally liable for not seeking or obtaining, indemnification orreimbursement from any director, officer or employee who was or may have beenresponsible, in whole or in part, for the acts, transactions or things withrespect to which or as a result of which such payments were made by theCorporation.

 

6.  The stockholders of the Corporation shall notbe personally liable for the payment of the Corporation’s debts, except as theymay be liable by reason of their own conduct or acts.

 

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7.  In furtherance and not in limitation of thepowers conferred by the General Corporation Law of Delaware, or elsewhere inthe Certificate of Incorporation of the Corporation, the Board of Directors isexpressly authorized without stockholder approval:

 

a.  To provide for payment by the Corporation ofreasonable directors’ fees and of the travel and other expenses incurred by thedirectors in connection with attendance at meetings or otherwise incurred onbusiness for and on behalf of the Corporation.

 

b.  To set apart out of any of the funds of theCorporation available for dividends, a reserve or reserves for any properpurpose and to abolish any such reserve in the manner in which it was created.

 

c.  To authorize the issuance, from time to time,of any or all shares of stock of the Corporation of any class at any timeauthorized, any securities convertible into or exchangeable for any such sharesso authorized, and any warrant, option or right to purchase, subscribe for orotherwise acquire, shares of stock of the Corporation of any class at any timeauthorized, in each case to such persons and for such consideration and on suchterms as the Board of Directors from time to time in its discretion lawfullymay determine; provided, however, that the consideration for the issuance ofshares of stock of the Corporation having par value shall not be less than suchpar value; and stock so issued, for which the consideration has been paid tothe Corporation, shall be fully paid stock, and the holders of such stock shallnot be liable to any further call or assessments thereon.

 

d.  To initiate, authorize, adopt, approve orratify a plan or plans for pensions, profit sharing, employee incentive,insurance benefits of all types and descriptions and rights, options,installment contracts or other arrangements for the purchase of stock of anyclass of the Corporation and to make the benefits of any such plan or plansavailable to the directors, officers or employees of the Corporation or topersons associated with or participating in the business of the Corporation.

 

Withrespect to any plan or plans involving contracts or other arrangements for thepurchase of stock, the Board of Directors may authorize the issuance of all theshares and the issuance and delivery of a certificate or certificatesevidencing all the shares involved, to the person or persons from time to timeparticipating therein at the inception of each such participation, or maydirect that the delivery of such certificate or certificates shall be withhelduntil all or some specified portion of the required payments have been made;and in either such case, the Board of Directors may provide that suchparticipating person or persons shall enjoy the same voting and dividend rightswith respect to said shares as though the same were fully paid andnon-assessable.  No such plan or plansshall be construed as involving a loan by the Corporation or as a loan by theCorporation which is secured by its shares. Any such plan or plans or any such similar arrangement in which apredecessor corporation of the Corporation and the directors, officers,employees or business associates or such predecessor

 

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corporation wereparticipants may be adopted and ratified, in whole or in part, by a majority ofthe Board of Directors of the Corporation and by a majority vote of thestockholders of the Corporation at any annual or special meeting thereof.  If such approval is obtained, then to theextent that said plan or plans or arrangements of the predecessor corporationare approved, the same shall thereupon be and become a plan or plans of theCorporation, and any shares of the Corporation issued pursuant thereto, anyvotes cast by the holders thereof with respect to such shares and any dividendspaid with respect to such shares, either prior to or after such approval, shallbe deemed to have been validly issued, validly cast and validly paid.

 

e.  To make, adopt, alter, amend or repeal theby-laws of the Corporation.

 

8.  In furtherance and not in limitation of thegeneral powers conferred upon corporations under the General Corporation Law,of Delaware and the objects and purposes herein set forth, it is expresslyprovided that the Corporation shall also have the following powers:

 

a.  To manufacture, produce, process, invent,develop, use, distribute, buy, sell, import, export and generally trade anddeal in, as principal, agent, broker, distributor or otherwise, energyabsorption products and systems in all forms and of every kind and description,food products of every kind and description, chemical and chemical products ofevery kind and description, biologicals and pharmaceuticals of every kind anddescription, metallic and non-metallic minerals of every kind and description,plastics and plastic products of every kind and description, fabrics and allother products, machinery and equipment of every kind and description, andgenerally to engage in the manufacturing and merchandising business, and to doall things necessary or convenient to engage in and conduct the above businessand to do all things necessary or beneficial for the accomplishment of theabove purposes.

 

b.  To license others to manufacture, produce,process, develop, use, distribute, export, import and sell any of the thingsand products hereinabove referred to.

 

c.  To carry on any other lawful business orbusinesses whatsoever that may be deemed by the Corporation to be desirable andthat may promote the interests of the Corporation.

 

d.  To purchase, by the issuance or sale of stockor other securities of the Corporation, or to otherwise acquire, hold,hypothecate, sell or otherwise transfer, stock or other securities of ortangible or intangible assets of, and to gain control of, corporations andunincorporated businesses, either foreign or domestic, engaged or about toengage, either directly or indirectly, in one or more of the businessesdescribed above.

 

e.  To acquire by purchase, lease or otherwise,improved or unimproved real estate located anywhere within or without theUnited States of America, and interests of any kind therein; to own, hold, use,occupy, improve, develop, alter, enlarge, rebuild and

 

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manage said real estateand any improvements thereon; to erect or cause to be elected plants,factories, warehouses, buildings and structures of any kind and description,with their appurtenances; to lease, mortgage and otherwise lien or encumber anyand all such real estate and any improvements thereon; and to sell, exchange,transfer or otherwise dispose of any or all the Corporation’s interests in anyof or all said real estate and any improvements thereon.

 

f.  To manufacture, purchase, lease or otherwiseacquire equipment, goods, wares, merchandise and other personal property of anyand every class and description, and interests of any and every kind therein;to own, hold, lease, hypothecate and use said property; and to sell, trade,deal in or otherwise dispose of any of and all the Corporation’s interests inany or all of said property.

 

g.  To enter into, make, perform and becomeassignee of and to execute and deliver performance bonds in connectiontherewith, contracts of every kind and description with any person, firm,association or corporation, and with the United States of America or anyterritory, state, county, municipality or any department, agency, commission,corporation or political sub-division thereof, and with any foreign government,colony, body politic or political entity thereof.

 

h.  To acquire, hold, use, sell, assign, lease,grant licenses in respect of, mortgage, pledge, or otherwise dispose of letterspatent, patent rights, patent applications, licenses, privileges, inventions,improvements, processes, copyrights, service marks, trademarks, tradenames, andthe like, either of the United States or of a foreign country, relating to oruseful in connection with the business of the Corporation.

 

i.  To lend money or extend credit or both to anyperson, firm, association or corporation that purchases, leases or otherwiseacquires real or personal property from the Corporation; to lend money orextend credit to or guarantee the payment of dividends, interest or otherobligations of, or otherwise financially assist, any person, firm, associationor corporation, whenever such loan, credit extension, guarantee or otherfinancial assistance is deemed by the Corporation to be desirable and topromote the interests of the Corporation.

 

j.  To acquire the good will, business, rights,assets and property of, and to undertake or assume the whole or any part of theobligations or liabilities of, any person, firm, association or corporation; topay for the same in cash, the stock or other securities of the Corporation orotherwise; to hold or in any manner to dispose of the whole or any part of theproperty so purchased or acquired; to conduct in any lawful manner the whole orany part of the business so acquired, and to exercise all the powers necessaryor convenient and manage such business; and to merge or consolidate with anycorporation in such manner as may be permitted by law.

 

k.  To borrow or raise monies for the purposes ofthe Corporation and in furtherance of the powers as herein defined, and, fromtime to time, without limit as to amount, to draw, make, accept, endorse,execute and issue, and to redeem, purchase, resell and

 

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reissue, promissorynotes, drafts, bills of exchange, warrants, bonds, debentures, convertible orotherwise, and other negotiable or non-negotiable instruments and evidences ofindebtedness, and to secure the payment of any thereof and of the interestthereon by mortgage upon or pledge, conveyance or assignment in trust of thewhole or any part of the property of the Corporation, whether at the time ownedor thereafter acquired, and to sell, pledge or otherwise dispose of such bondsor other obligations of the Corporation for its own corporate purposes.

 

l.  To purchase, hold, sell and transfer theshares of its own stock; provided it shall not use its funds or property forthe purchase of its own shares of stock when such use would cause anyimpairment of its capital, except as may be permitted by law, and provided,further, that shares of its own stock belonging to it shall not be voted upondirectly or indirectly.

 

m.  To have offices, keep its books and recordsof account, conduct its business and promote its purposes within and withoutthe State of Delaware and other States of the United States of American and itsTerritories and Possessions and the District of Columbia, and in foreigncountries, without restriction as to place or amount.

 

n.  The powers specified in the foregoing clausesof this Article shall, except where otherwise expressed, be in nowiselimited or restricted by reference to, or inference from, the terms of anyother clause in the Certificate of Incorporation of the Corporation, but shallbe regarded as independent powers; and it is hereby expressly provided that theforegoing enumeration of specific powers shall not be held to limit or restrictin any manner any other powers of this Corporation.

 

9.  To the full extent that is shall from time totime have power under applicable law and in the manner from time to timeprescribed or permitted under applicable law, the Corporation shall indemnifyany director or officer and the Corporation may indemnify any employee oragent, who was or is threatened to be made a party to any threatened, pendingor completed action, suit or proceeding, whether civil, criminal,administrative or investigative, and including actions or suits by or in theright of the Corporation by reason of the fact that he is or was a director,officer, employee or agent of the Corporation, or is or was serving at therequest of the Corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or other enterprise.  The provisions of this section shallcontinue for the benefit of 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.

 

ARTICLE SEVENTH

 

Thereshall be between three and nine directors of the Corporation, as determined bythe By-Laws.  The directors of the Corporationshall be divided into three classes as nearly equal in number as possible.  There shall be at least one director in eachclass.  At each annual meeting, directorsto replace those directors who terms expire at such annual meeting shall beelected to hold office until the third succeeding annual meeting.

 

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If the number ofdirectors is changed, any newly created directorships or any decrease indirectorships shall be so apportioned among the classes as to make all classesas nearly equal in number as possible. If the number of directors is increased by the Board of Directors andany newly created directorships are filled by the Board, there shall be noclassification of the additional directors until the next annual meeting ofstockholders.

 

ARTICLE EIGHTH

 

TheBoard of Directors, by resolution or resolutions passed by three-fourths of theentire Board of Directors, may designate from among its members an executecommittee and other committees, each consisting of three or more directors, andeach of which, to the extent provided in this Certificate of Incorporation, theby-laws and in such resolution or resolutions, shall have the authority of theBoard of Directors, except as may be provided otherwise by law.  The Chairman of the Board and the Presidentshall be members ex officio of any executive committee or financecommittee.  An executive committee or anyother committee shall act only at such times as the Board of Directors is notin session and in no case to the exclusion of the right of the Board ofDirectors at any time to act as a Board upon any business of theCorporation.  Each such committee shallcease to exist and function in any capacity upon the termination of itsauthority by resolution or resolutions passed by a majority of the entire Boardof Directors.  As used in this paragraph,“entire Board of Directors” means the total number of directors which theCorporation would have if there were no vacancies.

 

Allaction by any committee of the Board of Directors shall be referred to theBoard of Directors at its meeting next succeeding each action, and shall besubject to revision or alteration by the Board of Directors, provided that norights or acts of third parties shall be affected by any such revision oralteration.  Subject to such applicableresolutions as may be adopted by the Board, each committee shall fix its own rules ofprocedure and shall meet where and as provided in such rules, but in any casethe presence of a majority shall be necessary to constitute a quorum.

 

ARTICLE NINTH

 

Directorsmay be removed at any time by a vote of the holders of three-fourths of thestock entitled to vote, except that directors elected by any class of stock,voting separately as a class, may be removed only by a majority vote of suchclass, voting separately as a class, so long as the voting power of such classshall continue.

 

ARTICLE TENTH

 

Adirector of a Corporation shall not be personally liable to the Corporation orits stockholders for monetary damages for breach of fiduciary duty as adirector, except for liability (i) for any breach of the director’s dutyof loyalty to the Corporation or its stockholders, (ii) for acts oromissions not in good faith or which involve intentional misconduct or aknowing violation of law, (iii) under Section 174 of the General

 

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Corporation Law of theState of Delaware, as the same exists or hereafter may be amended, or (iv) forany transaction from which the director derived an improper personalbenefit.  If the General Corporation Lawof the State of Delaware hereafter is amended to authorize the furtherelimination or limitation of the liability of directors, then the liability ofa director of the Corporation, in addition to the limitation on personalliability provided herein, shall be limited to the fullest extent permitted bythe amended General Corporation Law of the State of Delaware.  Any repeal or modification of this Article bythe stockholders of the Corporation shall be prospective only, and shall notadversely affect any limitation on the personal liability of a director of theCorporation existing at the time of such repeal or modification.

 

ARTICLE ELEVENTH

 

TheCorporation reserves the right to amend, change or repeal any provisioncontained in this Certificate of Incorporation, in the manner now or hereafterprescribed by statute and in this certificate and all rights conferred hereinupon the stockholders and directors and granted subject to this reservation.

 

INWITNESS WHEREOF, said Quixote Corporation has caused this Restated Certificateof Incorporation to be signed by its President, and attested by its Secretary,this 4th day of February,1998.

 
|            | QUIXOTE CORPORATION |
|-----------------|---------------------|
|            |                |
|            |                |
|            | By:                 |  /s/ Leslie J. Jezuit |   |
|            |   Its:    |  President |   |
|            |                |
| Attest:         |
|            |
| Joan R. Riley   |                |
|  Secretary |
|                 |                     |  |  |  |  |  |

 

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