exv4w1






Exhibit 4.1




AMENDED AND RESTATED CERTIFICATE OF INCORPORATION




OF



rue21, inc.



     rue21, inc., a corporation organized and existing under and by virtue of the provisions of the
General Corporation Law of the State of Delaware (the “General Corporation Law”),



     DOES HEREBY CERTIFY:




     FIRST: that the name of this corporation is rue21, inc. and that the Certificate of
Incorporation of this corporation was originally filed with the Secretary of the State of the State
of Delaware pursuant to the General Corporation Law on October 28, 2009.



     SECOND: that the Board of Directors duly adopted resolutions, in accordance with the
provisions of Sections 242, 245, 141(f) and 228 of the DGCL, proposing to amend and restate the
Certificate of Incorporation of this corporation, declaring said amendment and restatement to be
advisable and in the best interests of this corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the stockholders therefor, which
resolution setting forth the proposed amendment and restatement is as follows:



     RESOLVED, that the Certificate of Incorporation of this corporation be amended and restated in
its entirety as follows:



ARTICLE ONE




          The name of the Corporation is rue21, inc.




ARTICLE TWO




          The address of the Corporation’s registered office in the state of Delaware is 2711
Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its
registered agent at such address is Corporation Service Company.




ARTICLE THREE




          The nature of the business or purposes to be conducted or promoted is to engage in any lawful
act or activity for which corporations may be organized under the General Corporation Law.




ARTICLE FOUR




     Section 1. Authorized Shares. The total number of shares of capital stock which the
Corporation has authority to issue is 210,000,000 shares, consisting of:




	 	(a)	 	10,000,000 shares of preferred stock, par value $.001 per share
(“Preferred Stock”); and




 









 












	 	(b)	 	200,000,000 shares of common stock, par value $.001 per share
(“Common Stock”).





     Section 2. Preferred Stock. The Preferred Stock may be issued from time to time and
in one or more series. The Board of Directors of the Corporation is authorized to determine or
alter the powers, preferences and rights, and the qualifications, limitations and restrictions
granted to or imposed upon any wholly unissued series of Preferred Stock, and within the
limitations or restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series of Preferred Stock, to increase or
decrease (but not below the number of shares of any such series of Preferred Stock then
outstanding) the number of shares of any such series of Preferred Stock, and to fix the number of
shares of any series of Preferred Stock. In the event that the number of shares of any series of
Preferred Stock shall be so decreased, the shares constituting such decrease shall resume the
status which such shares had prior to the adoption of the resolution originally fixing the number
of shares of such series of Preferred Stock subject to the requirements of applicable law.



     Section 3. Common Stock.



     (a) Dividends. Except as otherwise provided by the General Corporation Law or this
Amended and Restated Certificate of Incorporation (the “Restated Certificate”), the holders
of Common Stock: (i) subject to the rights of holders of any series of Preferred Stock, shall share
ratably in all dividends payable in cash, stock or otherwise and other distributions, whether in
respect of liquidation or dissolution (voluntary or involuntary) or otherwise and (ii) are subject
to all the powers, rights, privileges, preferences and priorities of any series of Preferred Stock
as provided herein or in any resolution or resolutions adopted by the Board of Directors pursuant
to authority expressly vested in it by the provisions of Section 2 of this ARTICLE FOUR.



     (b) Liquidation Rights. In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, after payment or provision for
payment of the Corporation’s debts and subject to the rights of the holders of shares of Preferred
Stock upon such dissolution, liquidation or winding up, the remaining net assets of the Corporation
shall be distributed among holders of shares of Common Stock equally on a per share basis. A
merger or consolidation of the Corporation with or into any other corporation or other entity, or a
sale or conveyance of all or any part of the assets of the Corporation (which shall not in fact
result in the liquidation of the Corporation and the distribution of assets to its stockholders)
shall not be deemed to be a voluntary or involuntary liquidation or dissolution or winding up of
the Corporation within the meaning of this Section 3.



     (c) Conversion Rights. The Common Stock shall not be convertible into, or
exchangeable for, shares of any other class or classes or of any other series of the same class of
the Corporation’s capital stock.



     (d) Preemptive Rights. No holder of Common Stock shall have any preemptive rights
with respect to the Common Stock or any other securities of the Corporation, or to any obligations
convertible (directly or indirectly) into securities of the Corporation whether now or hereafter
authorized.



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     (e) Voting Rights. Except as otherwise provided by the General Corporation Law or the
Restated Certificate and subject to the rights of holders of any series of Preferred Stock, all of
the voting power of the stockholders of the Corporation shall be vested in the holders of the
Common Stock, and each holder of Common Stock shall have one vote for each share held by such
holder on all matters voted upon by the stockholders of the Corporation.



     (f) Registration or Transfer. The Corporation shall keep at its principal office (or
such other place as the Corporation reasonably designates) a register for the registration of
Common Stock. Upon the surrender of any certificate representing shares of any class of Common
Stock at such place, the Corporation shall, at the request of the registered holder of such
certificate, execute and deliver a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares of such class represented by the surrendered
certificate, and the Corporation forthwith shall cancel such surrendered certificate. Each such
new certificate will be registered in such name and will represent such number of shares of such
class as is requested by the holder of the surrendered certificate and shall be substantially
identical in form to the surrendered certificate. The issuance of new certificates shall be made
without charge to the holders of the surrendered certificates for any issuance tax in respect
thereof or other cost incurred by the Corporation in connection with such issuance.



     (g) Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation
(an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft,
destruction or mutilation of any certificate evidencing one or more shares of any class of Common
Stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder is a financial institution or other
institutional investor, its own agreement will be satisfactory), or, in the case of any such
mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and
deliver in lieu of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.



     (h) Notices. All notices referred to herein shall be in writing, shall be delivered
personally or by first class mail, postage prepaid, and shall be deemed to have been given when so
delivered or mailed to the Corporation at its principal executive offices and to any stockholder at
such holder’s address as it appears in the stock records of the Corporation (unless otherwise
specified in a written notice to the Corporation by such holder).



     (i) Fractional Shares. In no event will holders of fractional shares be required to
accept any consideration in exchange for such shares other than consideration which all holders of
Common Stock are required to accept.



ARTICLE FIVE




          The Corporation is to have perpetual existence.




ARTICLE SIX




          Elections of directors need not be by written ballot unless the Bylaws of the Corporation
shall so provide.







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ARTICLE SEVEN




          The number of directors which constitute the entire Board of Directors of the Corporation
shall be designated in the Bylaws of the Corporation.




ARTICLE EIGHT




          In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter, amend or repeal the Bylaws of the Corporation.




ARTICLE NINE




     Section 1. Limitation of Liability.



     (a) To the fullest extent permitted by the General Corporation Law as it now exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than permitted prior
thereto), and except as otherwise provided in the Corporation’s Bylaws, no Director of the
Corporation shall be liable to the Corporation or its stockholders for monetary damages arising
from a breach of fiduciary duty owed to the Corporation or its stockholders.



     (b) Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of the Corporation
existing at the time of such repeal or modification with respect to any act, omission or other
matter occurring prior to such repeal or modification.



     Section 2. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved (including involvement as a witness) in
any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“proceeding”), by reason of the fact that he or she is or was a Director or officer of the
Corporation or, while a Director or officer of the Corporation, is or was serving at the request of
the Corporation as a Director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged
action in an official capacity as a Director or officer or in any other capacity while serving as a
Director or officer, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior thereto), against all
expense, liability and loss (including attorneys’ fees, judgments, fines, excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee who has ceased to be a
Director, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs,
executors and administrators; provided, however, that, except as provided in Section 3 of this
ARTICLE NINE with respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof)



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was authorized by the Board of Directors of the Corporation. The right to indemnification
conferred in this Section 2 of this ARTICLE NINE shall be a contract right and shall include the
obligation of the Corporation to pay the expenses incurred in defending any such proceeding in
advance of its final disposition (an “advance of expenses”); provided, however, that, if
and to the extent that the General Corporation Law requires, an advance of expenses incurred by an
indemnitee in his or her capacity as a Director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (an
“undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which there is no further right to
appeal (a “final adjudication”) that such indemnitee is not entitled to be indemnified for
such expenses under this Section 2 or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation with the same or
lesser scope and effect as the foregoing indemnification of Directors and officers.




     Section 3. Procedure for Indemnification. Any indemnification of a Director or
officer of the Corporation or advance of expenses under Section 2 of this ARTICLE NINE shall be
made promptly, and in any event within forty-five days (or, in the case of an advance of expenses,
twenty days), upon the written request of the Director or officer. If a determination by the
Corporation that the Director or officer is entitled to indemnification pursuant to this ARTICLE
NINE is required, and the Corporation fails to respond within sixty days to a written request for
indemnity, the Corporation shall be deemed to have approved the request. If the Corporation denies
a written request for indemnification or advance of expenses, in whole or in part, or if payment in
full pursuant to such request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by this ARTICLE NINE
shall be enforceable by the Director or officer in any court of competent jurisdiction. Such
person’s costs and expenses incurred in connection with successfully establishing his or her right
to indemnification, in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to Section 2 of this
ARTICLE NINE, if any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall
be on the Corporation. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the General Corporation
Law, nor an actual determination by the Corporation (including its Board of Directors, independent
legal counsel or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct. The procedure for indemnification of other employees and agents
for whom indemnification is provided pursuant to Section 2 of this ARTICLE NINE shall be the same
procedure set forth in this Section 3 for Directors or officers, unless otherwise set forth in the
action of the Board of Directors providing indemnification for such employee or agent.



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     Section 4. Insurance. The Corporation may purchase and maintain insurance on its own
behalf and on behalf of any person who is or was a Director, officer, employee or agent of the
Corporation or was serving at the request of the Corporation as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss asserted against him or her and incurred by him or her in any such
capacity, whether or not the Corporation would have the power to indemnify such person against such
expenses, liability or loss under the General Corporation Law.



     Section 5. Service for Subsidiaries. Any person serving as a Director, officer,
employee or agent of another corporation, partnership, limited liability company, joint venture or
other enterprise, at least 50% of whose equity interests are owned by the Corporation (a
“subsidiary” for this ARTICLE NINE) shall be conclusively presumed to be serving in such
capacity at the request of the Corporation.



     Section 6. Reliance. Persons who after the date of the adoption of this provision
become or remain Directors or officers of the Corporation or who, while a Director or officer of
the Corporation, become or remain a Director, officer, employee or agent of a subsidiary, shall be
conclusively presumed to have relied on the rights to indemnity, advance of expenses and other
rights contained in this ARTICLE NINE in entering into or continuing such service. The rights to
indemnification and to the advance of expenses conferred in this ARTICLE NINE shall apply to claims
made against an indemnitee arising out of acts or omissions which occurred or occur both prior and
subsequent to the adoption hereof.



     Section 7. Non-Exclusivity of Rights. The rights to indemnification and to the
advance of expenses conferred in this ARTICLE NINE shall not be exclusive of any other right which
any person may have or hereafter acquire under this Restated Certificate or under any statute,
by-law, agreement, vote of stockholders or disinterested Directors or otherwise.



     Section 8. Merger or Consolidation. For purposes of this ARTICLE NINE, references to
the “Corporation” shall include, in addition to the resulting Corporation, any constituent
Corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
Directors, officers and employees or agents, so that any person who is or was a Director, officer,
employee or agent of such constituent Corporation, or is or was serving at the request of such
constituent Corporation as a Director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same position under this
ARTICLE NINE with respect to the resulting or surviving Corporation as he or she would have with
respect to such constituent Corporation if its separate existence had continued.



ARTICLE TEN




     Section 1. Classification of Directors. At each annual meeting of stockholders,
directors of the Corporation shall be elected to hold office until the expiration of the term for
which they are elected, and until their successors have been duly elected and qualified; except
that if any such election shall be not so held, such election shall take place at stockholders’
meeting called and held in accordance with the General Corporation Law. The directors of the
Corporation shall be divided into three classes as nearly equal in size as is practicable, hereby



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designated Class I, Class II and Class III. The term of office of the initial Class I
directors shall expire at the next succeeding annual meeting of stockholders, the term of office of
the initial Class II directors shall expire at the second succeeding annual meeting of stockholders
and the term of office of the initial Class III directors shall expire at the third succeeding
annual meeting of the stockholders. For the purposes hereof, the initial Class I, Class II and
Class III directors shall be those directors elected by the stockholders of the Corporation in
connection with the adoption of this Restated Certificate. At each annual meeting after the first
annual meeting of stockholders, directors to replace those of a Class whose terms expire at such
annual meeting shall be elected to hold office until the third succeeding annual meeting and until
their respective successors shall have been duly elected and qualified. If the number of directors
is hereafter changed, any newly created directorships or decrease in directorships shall be so
apportioned by the Board of Directors among the classes as to make all classes as nearly equal in
number as practicable.




     Section 2. Vacancies. Vacancies occurring on the Board of Directors for any reason
may be filled by vote of a majority of the remaining members of the Board of Directors, although
less than a quorum, at any meeting of the Board of Directors. A person so elected by the Board of
Directors to fill a vacancy shall hold office until office until the election of the Class for
which such director shall have been chosen and until his or her successor shall have been duly
elected and qualified. No decrease in the authorized number of directors shall shorten the term of
any incumbent director.



ARTICLE ELEVEN




          Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws
may provide. The books of the Corporation may be kept (subject to any provision contained in the
statutes) outside of the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors or in the Bylaws of the Corporation.




ARTICLE TWELVE




          Beginning immediately following the consummation of the Corporation’s initial public offering
of its Common Stock pursuant to an effective registration statement under the Securities Act of
1933, as amended (the “Securities Act”): (i) the stockholders of the Corporation may not
take any action by written consent in lieu of a meeting, and must take any actions at a duly called
annual or special meeting of stockholders and the power of stockholders to consent in writing
without a meeting is specifically denied and (ii) special meetings of stockholders of the
Corporation may be called only by either the Board of Directors pursuant to a resolution adopted by
the affirmative vote of the majority of the total number of directors then in office or by the
chief executive officer of the Corporation.




ARTICLE THIRTEEN




     Section 1. Certain Acknowledgments. In recognition and anticipation that (i) the
directors, officers and/or employees of Apax Partners, L.P. may serve as directors and/or officers
of the Corporation, (ii) Apax Partners, L.P. and Affiliated Companies (as defined below) thereof
engage and may continue to engage in the same or similar activities or related lines of business



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as those in which the Corporation, directly or indirectly, may engage and/or other business
activities that overlap with or compete with those in which the Corporation, directly or
indirectly, may engage, and (iii) that the Corporation and Affiliated Companies thereof will engage
in material business transactions with Apax Partners, L.P. and Affiliated Companies thereof and
that the Corporation is expected to benefit therefrom, the provisions of this ARTICLE THIRTEEN are
set forth to regulate and define the conduct of certain affairs of the Corporation as they may
involve Apax Partners, L.P. or its Affiliated Companies and its officers and directors, and the
powers, rights, duties and liabilities of the Corporation and its officers, directors and
stockholders in connection therewith.




     Section 2. Competition and Corporate Opportunities. Neither of Apax Partners, L.P. or
any of its Affiliated Companies shall have any duty to refrain from engaging directly or indirectly
in the same or similar business activities or lines of business as the Corporation or any of its
Affiliated Companies, and neither Apax Partners, L.P. nor any officer or director thereof (except
as provided in Section 3 below) shall be liable to the Corporation or its stockholders for breach
of any fiduciary duty solely by reason of any such activities of Apax Partners, L.P. or any of its
Affiliated Companies. In the event that Apax Partners, L.P. or any of its Affiliated Companies
acquires knowledge of a potential transaction or matter which may be a corporate opportunity for
itself and the Corporation or any of its Affiliated Companies, neither of Apax Partners, L.P. or
any of its Affiliated Companies shall have any duty to communicate or offer such corporate
opportunity to the Corporation or any of its Affiliated Companies and shall not be liable to the
Corporation or its stockholders for breach of any fiduciary duty as a stockholder of the
Corporation solely by reason of the fact that Apax Partners, L.P. or any of its Affiliated
Companies pursues or acquires such corporate opportunity for itself, directs such corporate
opportunity to another person, or does not communicate information regarding such corporate
opportunity to the Corporation.



     Section 3. Allocation of Corporate Opportunities. In the event that a director or
officer of the Corporation who is also a director or officer of Apax Partners, L.P. acquires
knowledge of a potential transaction or matter which may be a corporate opportunity for the
Corporation or any of its Affiliated Companies and Apax Partners, L.P. or any of its Affiliated
Companies, such director or officer of the Corporation shall have fully satisfied and fulfilled the
fiduciary duty of such director or officer to the Corporation and its stockholders with respect to
such corporate opportunity, if such director or officer acts in a manner consistent with the
following policy:




     (a) A corporate opportunity offered to any person who is a director or officer of the
Corporation, and who is also a director or officer of Apax Partners, L.P., shall belong to
the Corporation if such opportunity is expressly offered to such person in writing solely in
his or her capacity as a director or officer of the Corporation.




     (b) Otherwise, such corporate opportunity shall belong to Apax Partners, L.P.



     Section 4. Certain Matters Deemed Not Corporate Opportunities. In addition to and
notwithstanding the foregoing provisions of this ARTICLE THIRTEEN, a corporate opportunity shall
not be deemed to belong to the Corporation if it is a business opportunity that the Corporation is
not permitted to undertake under the terms of ARTICLE THREE or that the



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Corporation is not financially able or contractually permitted or legally able to undertake,
or that is, from its nature, not in the line of the Corporation’s business or is of no practical
advantage to it or that is one in which the Corporation has no interest or reasonable expectancy.




     Section 5. Renouncement of Certain Corporate Opportunities. Except as provided in
Section 3(a) above, if a director or officer of the Corporation who is also a director or officer
of Apax Partners, L.P. acquires knowledge of a potential transaction or matter which may be a
corporate opportunity, the Corporation shall have no interest in such corporate opportunity and no
expectancy that such corporate opportunity be offered to it, any such interest or expectancy being
hereby renounced, so that such person shall have no duty to present such corporate opportunity to
the Corporation and shall have the right to hold and exploit any such corporate opportunity for its
(and its officers’, employees’, directors’, agents’, stockholders’, members’, partners’,
affiliates’ or subsidiaries’) own account or to direct, sell, assign or transfer such corporate
opportunity to persons other than the Corporation or any of its Affiliated Companies. Such person
shall not breach any fiduciary duty to the Corporation or to its stockholders by reason of the fact
that such person does not present such corporate opportunity to the Corporation or pursues,
acquires or exploits such corporate opportunity for itself or directs, sells, assigns or transfers
such corporate opportunity to another person.



     Section 6. Agreements and Transactions with Apax Partners, L.P. In the event that
Apax Partners, L.P. or any of its Affiliated Companies enters into an agreement or transaction with
the Corporation or any of its Affiliated Companies, a director or officer of the Corporation who is
also a director or officer of Apax Partners, L.P. shall have fully satisfied and fulfilled the
fiduciary duty of such director or officer to the Corporation and its stockholders with respect to
such agreement or transaction, if:




     (a) The agreement or transaction was approved by (i) an affirmative vote of a majority
of the members of the Board of Directors of the Corporation who are not persons with a
material financial interest in the agreement or transaction (“Interested Persons”),
(ii) an affirmative vote of a majority of the members of a committee of the Board of
Directors of the Corporation consisting of members who are not Interested Persons or (iii)
one or more of the Corporation’s officers or employees who are not Interested Persons and
who were authorized by the Board of Directors of the Corporation or committee thereof in the
manner set forth in (i) and (ii) above, in each case after being made aware of the material
facts of the relationship between each of the Corporation or an Affiliated Company thereof
and Apax Partners, L.P. or an Affiliated Company thereof and the material terms and facts of
the agreement or transaction.




     (b) The agreement or transaction was fair to the Corporation at the time the agreement
or transaction was entered into by the Corporation; or




     (c) The agreement or transaction was approved by an affirmative vote of a majority of
the shares of the Corporation’s Common Stock entitled to vote, excluding Apax Partners,
L.P., any Affiliated Company or Interested Person.



     Section 7. Certain Definitions. For purposes of this ARTICLE THIRTEEN,
“Affiliated Company” shall mean in respect of Apax Partners, L.P., any company which is



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controlling, controlled by or under common control with Apax Partners, L.P., including Apax
Partners LLP and funds advised by Apax Partners, L.P. (other than the Corporation and any company
that is controlled by the Corporation), and in respect of the Corporation shall mean any company
controlled by the Corporation.




     Section 8. Termination. The provisions of this ARTICLE THIRTEEN shall have no further
force or effect for Apax Partners, L.P. at such time as Apax Partners, L.P. and any company
controlling, controlled by or under common control with Apax Partners, L.P. shall first cease to be
the owner, in the aggregate, of Common Stock representing five percent (5%) or more of the votes
entitled to be cast by the holders of all the then outstanding shares of Common Stock;
provided, however, that such termination shall not terminate the effect of such
provisions with respect to (i) any agreement between the Corporation or an Affiliated Company
thereof and Apax Partners, L.P. or an Affiliated Company thereof that was entered into before such
time or any transaction entered into in the performance of such agreement, whether entered into
before or after such time, or (ii) any transaction or agreement entered into between the
Corporation or an Affiliated Company thereof and Apax Partners, L.P. or an Affiliated Company
thereof.



     Section 9. Amendment of this Article. Notwithstanding anything to the contrary
elsewhere contained in this Restated Certificate, the affirmative vote of the holders of at least
80% of the voting power of all shares of Common Stock then outstanding, voting together as a single
class, shall be required to alter, amend or repeal, or to adopt any provision inconsistent with,
this ARTICLE THIRTEEN.



     Section 10. Deemed Notice. Any person or entity purchasing or otherwise acquiring
any interest in any shares of the Corporation shall be deemed to have notice or and to have
consented to the provisions of this ARTICLE THIRTEEN.



ARTICLE FOURTEEN




          The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Restated Certificate, in the manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this reservation.




ARTICLE FIFTEEN




          The Corporation expressly elects to be governed by Section 203 of the Delaware General
Corporation Law. Notwithstanding the terms of Section 203 of the General Corporation Law, Apax
Partners, L.P., including Apax Partners LLP and funds advised by Apax Partners, L.P., shall not be
deemed at any time and without regard to the percentage of voting stock of the Corporation owned by
Apax Partners, L.P., including Apax Partners LLP and funds advised by Apax Partners, L.P., to be an
“interested stockholder” as such term is defined in Section 203(c)(5) of the General Corporation
Law.




* * * * * *





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