Prepared by MERRILL CORPORATION




   Exhibit 4.1  


 AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

AEROGEN, INC.  


    AEROGEN, INC., a corporation organized and existing under the laws of the state of Delaware (the
"Corporation") hereby certifies that: 


    1.  The
name of the Corporation is AeroGen, Inc. The name under which this corporation was originally incorporated is AeroGen (Delaware), Inc. 


    2.  The
date of filing of the Corporation's original Certificate of Incorporation was March 12, 1998. 


    3.  The
Amended and Restated Certificate of Incorporation of the Corporation as provided in Exhibit A hereto was duly adopted in accordance with the provisions
of Section 242 and Section 245 of the General Corporation Law of the State of Delaware by the Board of Directors of the Corporation. 



    4.  Pursuant
to Section 245 of the Delaware General Corporation Law, approval of the stockholders of the Corporation has been obtained. 


    5.  The
Amended and Restated Certificate of Incorporation so adopted reads in full as set forth in Exhibit A attached hereto and is hereby incorporated by
reference. 


    IN WITNESS WHEREOF, the undersigned has signed this certificate this 15th day of November, 2000, and hereby affirms and acknowledges
under penalty of perjury that the filing of this Amended and Restated Certificate of Incorporation is the act and deed of AeroGen, Inc. 



	 	 	AEROGEN, INC.
	

 	
 	

By	

/s/ Jane E. Shaw
 Jane E. Shaw

Chief Executive Officer




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EXHIBIT A  


 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF AEROGEN, INC.

a Delaware corporation  


ARTICLE I.  


    The name of the corporation is AEROGEN, INC.


ARTICLE II.  


    The address of the corporation's registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company. 


ARTICLE III.  


    The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of
Delaware ("DGCL"). 


ARTICLE IV.  


    A. Classes of Stock.  This corporation is authorized to issue two classes of stock to be designated, respectively,
"Common Stock" and "Preferred Stock." The total number of shares which the corporation is authorized to issue One Hundred Million (100,000,000), of which Ninety Five Million (95,000,000) shares shall
be Common Stock, par value $0.001 per share, and Five Million (5,000,000) shares shall be Preferred Stock, par value $0.001 per share. 


    B. Rights, Preferences and Restrictions of Preferred Stock.  The Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is hereby authorized, by filing a certificate (a "Preferred Stock Designation") pursuant to DGCL, to fix or alter from time to time the designation, powers,
preferences and rights (voting or otherwise) granted upon, and the qualifications, limitations or restrictions of, any wholly unissued series of Preferred Stock, and to establish from time to time the
number of shares constituting any such series or any of them; and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding. In case the number of shares of any series shall be decreased in accordance with the foregoing sentence, the shares constituting such decrease shall
resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series. 


ARTICLE V.  


    For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of
the corporation, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that: 



    A. Management of Business.  The management of the business and the conduct of the affairs of the corporation shall be
vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed exclusively by one or more resolutions adopted by the Board of Directors. 


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    B. Board of Directors.  


        1. Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the directors shall be divided into three classes designated as Class I, Class II and Class III, respectively. Directors shall be assigned
to each class in accordance with a resolution or resolutions adopted by the Board of Directors. At the first annual meeting of stockholders following the closing of the initial public offering
pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock to the public (the "Initial Public Offering"), the term of
office of the Class I directors shall expire and Class I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the Initial
Public Offering, the term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third annual meeting of
stockholders following the Initial Public Offering, the term of office of the Class III directors shall expire and Class III directors shall be elected for a full term of three years. At
each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting. During such
time or times that the corporation is subject to Section 2115(b) of the California General Corporation Law ("CGCL"), this Section B.1. of this Article V shall
become effective and be applicable only when the corporation is a "listed" corporation within the meaning of Section 301.5 of the CGCL. 


        2. In the event that the corporation is subject to Section 2115(b) of the CGCL AND is not a "listed"
corporation or ceases to be a "listed" corporation under Section 301.5 of the CGCL, Section B.1. of this Article V shall not apply and all directors shall be shall be elected at
each annual meeting of stockholders to hold office until the next annual meeting. 


        3. No person entitled to vote at an election for directors may cumulate votes to which such person is entitled,
unless, at the time of such election, the corporation is subject to Section 2115(b) of the CGCL AND is not a "listed" corporation or ceases to be a "listed" corporation under
Section 301.5 of the CGCL. During this time, every stockholder entitled to vote at an election for directors may cumulate such stockholder's votes and give one candidate a number of votes equal
to the number of directors to be elected multiplied by the number of votes to which such stockholder's shares are otherwise entitled, or distribute the stockholder's votes on the same principle among
as many candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so cumulate such stockholder's votes unless (i) the names of such candidate or candidates have
been placed in nomination prior to the voting and (ii) the stockholder has given notice at the meeting, prior to the voting, of such stockholder's intention to cumulate such stockholder's
votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting,
the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected. 


    Notwithstanding
the foregoing provisions of this section, each director shall serve until his successor is duly elected and qualified or until his death, resignation or removal. No
decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. 


    C. Removal of Directors.  


        1. During such time or times that the corporation is subject to Section 2115(b) of the
CGCL, the Board of Directors or any individual director may be removed from office at any time without cause by the affirmative vote of the holders of at least a majority of the outstanding shares
entitled to vote on such removal; provided, however, that unless the entire Board is removed, no individual director may be removed when the votes cast
against such director's removal, or not consenting in writing to such removal, would be sufficient to elect that director if voted cumulatively at an election in which the same total number of votes
were cast (or, if such action is taken by written consent, all shares entitled 


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to vote were voted) and the entire number of directors authorized at the time of such director's most recent election were then being elected. 



        2. At any time or times that the corporation is not subject to Section 2115(b) of the CGCL and subject to any
limitations imposed by law, Section C.1. above shall no longer apply and removal shall be as provided in Section 141(k) of the DGCL. 


    D. Vacancies.  


        1. Subject to the rights of the holders of any series of Preferred Stock, any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall,
unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders, except as otherwise provided by law, be filled only
by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board of Directors, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected
and qualified. 


        2. If at the time of filling any vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Delaware Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in offices
as aforesaid, which election shall be governed by Section 211 of the DGCL. 


        3. At any time or times that the corporation is subject to Section 2115(b) of the CGCL, if, after the filling
of any vacancy by the directors then in office who have been elected by stockholders shall constitute less than a majority of the directors then in office, then: 


            (a) Any holder or holders of an aggregate of five percent (5%) or more of the total number of shares at the time
outstanding having the right to vote for those directors may call a special meeting of stockholders; or 


            (b) The Superior Court of the proper county shall, upon application of such stockholder or stockholders, summarily
order a special meeting of stockholders, to be held to elect the entire board, all in accordance with Section 305(c) of the CGCL. The term of office of any director shall terminate upon that
election of a successor. 


    E. Bylaw Amendments.  Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws may be altered or
amended or new Bylaws adopted by the affirmative vote of at least sixty-six and two-thirds percent (662/3%) of the voting power of all of the
then-outstanding shares of the voting stock of the corporation entitled to vote. The Board of Directors shall also have the power to adopt, amend, or repeal Bylaws. 



    F. Ballots.  The directors of the corporation need not be elected by written ballot unless the Bylaws so provide. 


    G. Action By Stockholders.  No action shall be taken by the stockholders of the corporation except at an annual or
special meeting of stockholders called in accordance with the Bylaws; no action shall be taken by the stockholders by written consent. 


    H. Advance Notice.  Advance notice of stockholder nominations for the election of directors and of business to be
brought by stockholders before any meeting of the stockholders of the corporation shall be given in the manner provided in the Bylaws of the corporation. 


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    I. Special Meetings of Stockholders.  Special meetings of the stockholders may be called only by the Chairman of the
Board, the Chief Executive Officer, or a majority of the members of the Board of Directors. 


ARTICLE VI.  


    A. No Personal Liability. A director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director's duty of loyalty to the corporation and its
stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or knowing violations of law; (3) under section 174 of the Delaware General
Corporation law, or (4) for any transaction from which the director derived an improper personal benefit. 


    B. Indemnification.  Each person who is or is made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as
provided in the second paragraph hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof), was authorized by the Board of Directors of the corporation. The right to indemnification conferred in this section shall be a contract right and shall include the right
to be paid by the corporation for any expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under
this section or otherwise. The corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing
indemnification of directors and officers. 


    If
a claim under the first paragraph of this section is not paid in full by the corporation within thirty (30) days after a written claim has been received by the corporation,
the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense in any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has been tendered to the corporation) that the claimant has not met the 


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standards of conduct which make it permissible under the Delaware General Corporation Law for the corporation to indemnity the claimant for the amount claimed, but the burden of proving such defense
shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. 


    The
right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this section shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise. 


    C. Insurance.  The corporation may maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. 


    D. Repeal and Modification.  Any repeal or modification of the foregoing provisions of this Article 6 shall not
adversely affect any right or protection of a director, officer, employee or agent of the corporation existing at the time of such repeal or modification. 


    E. Vote Required to Amend or Repeal.  The amendment or repeal of this Article 6 shall require the approval of the
holders of shares representing at least sixty six and two-thirds percent (662/3%) of the shares of the corporation entitled to vote in the election of directors, voting as
one class. 


ARTICLE VII.  


    A.  The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, except as provided in paragraph B of this Article VII, and all rights conferred upon the stockholders herein are
granted subject to this reservation. 


    B.  Notwithstanding any other provisions of this Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the voting stock required by law, this Certificate of
Incorporation or any Preferred Stock Designation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (662/3%) of the voting power
of all of the then-outstanding shares of the voting stock, voting together as a single class, shall be required to alter, amend or repeal Articles V, VI and VII. 


6






   CERTIFICATE OF DESIGNATION  


 OF  


 SERIES A JUNIOR PARTICIPATING PREFERRED STOCK  


 (Pursuant to Section 151 of the

Delaware General Corporation Law)  


    AEROGEN, INC., a corporation organized and existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Company"), hereby certifies that the following resolution was adopted by the Board of Directors of the Company as required by Section 151 of the General
Corporation Law at a meeting duly called and held on June 5, 2001: 



    RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of the Company in accordance with the
provisions of its Amended and Restated Certificate of Incorporation, the Board of Directors hereby creates a series of Preferred Stock, par value $0.001 per share, of the Company and hereby states the
designation and number of shares, and fixes the relative designations and the powers, preferences and rights, and the qualifications, limitations and restrictions thereof (in addition to the
provisions set forth in the Certificate of Incorporation of the Company, which are applicable to the Preferred Stock of all classes and series), as follows: 




Series A
Junior Participating Preferred Stock: 


    Section 1. Designation and Amount.  Five Hundred Thousand (500,000) shares of Preferred Stock, $0.001 par value,
are designated "Series A Junior Participating Preferred Stock" with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions specified
herein (the "Junior Preferred Stock"). Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no
decrease shall reduce the number of shares of Junior Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Company convertible into Junior Preferred Stock. 


    Section 2. Dividends and Distributions.  


        (A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking prior and superior to the Junior Preferred Stock with respect to dividends, the holders of shares of Junior Preferred Stock, in preference to the holders of Common Stock,
par value $0.001 per share (the "Common Stock"), of the Company, and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the first day of April, July, October and January in each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Junior Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $l.00 or (b) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Junior Preferred Stock. In the event the Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common 


1





 


Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Junior Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 


        (B) The Company shall declare a dividend or distribution on the Junior Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock);  provided, that in the event no
dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Junior Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date. 


        (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Junior Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for
the
determination of holders of shares of Junior Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Junior Preferred Stock in an amount
less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Junior Preferred Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof. 


    Section 3. Voting Rights.  The holders of shares of Junior Preferred Stock shall have the following voting
rights: 


        (A) Subject to the provision for adjustment hereinafter set forth, each share of Junior Preferred Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a vote of the stockholders of the Company. In the event the Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Junior Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 


        (B) Except as otherwise provided herein, in any other Certificate of Designation creating a series of Preferred Stock
or any similar stock, or by law, the holders of shares of Junior Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Company having general voting rights shall
vote together as one class on all matters submitted to a vote of stockholders of the Company. 


        (C) Except as set forth herein, or as otherwise provided by law, holders of Junior Preferred Stock shall have no
special voting rights and their consent shall not be required (except to the extent 


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they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. 


    Section 4. Certain Restrictions.  


        (A) Whenever quarterly dividends or other dividends or distributions payable on the Junior
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Company shall not: 



            (i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock; 


            (ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock, except dividends paid ratably on the Junior Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; 



            (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Company ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Junior Preferred Stock; or 


            (iv) redeem or purchase or otherwise acquire for consideration any shares of Junior Preferred Stock, or any shares of
stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. 


        (B) The Company shall not permit any subsidiary of the Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 


    Section 5. Reacquired Shares.  Any shares of Junior Preferred Stock purchased or otherwise acquired by the
Company in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Amended and Restated Certificate of
Incorporation, or in any other Certificate of Designation creating a series of Preferred Stock or any similar stock or as otherwise required by law. 



    Section 6. Liquidation, Dissolution or Winding Up.  Upon any liquidation, dissolution or winding up of the
Company, no distribution shall be made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior Preferred Stock
unless, prior thereto, the holders of shares of Junior Preferred Stock shall have received $100 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, provided that the holders of shares of Junior Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be distributed per share to holders of 


3





 


shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior Preferred Stock,
except distributions made ratably on the Junior Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Company shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which holders of shares of Junior Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 


    Section 7. Consolidation, Merger, Etc.  In case the Company shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of
Junior Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event
the Company shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares of Junior Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 


    Section 8. No Redemption.  The shares of Junior Preferred Stock shall not be redeemable. 


    Section 9. Rank.  The Junior Preferred Stock shall rank, with respect to the payment of dividends and the
distribution of assets, junior to all series of any other class of the Company's Preferred Stock. 


    Section 10. Amendment.  The Amended and Restated Certificate of Incorporation of the Company shall not be amended
in any manner which would materially alter or change the powers, preferences or special rights of the Junior Preferred Stock so as to affect them adversely without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Junior Preferred Stock, voting together as a single class. 


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    IN WITNESS WHEREOF, the undersigned have executed this certificate as of June 5, 2001. 



	 	 	/s/ Jane E. Shaw
Jane E. Shaw

Chief Executive Officer
	

 	
 	
/s/ Carol A. Gamble
Carol A. Gamble

Secretary




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