Exhibit
3.1
 
 
 THIRD
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
 
 OF
 
 TSG
HOLDINGS CORP.
 
 TSG
Holdings Corp., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware,
 
 DOES
HEREBY CERTIFY:
 
 FIRST:  The
name of the corporation is TSG Holdings Corp., which is the name under which the
corporation originally was incorporated.  The date of filing of its
original Certificate of Incorporation with the Secretary of State of the State
of Delaware was July 30, 2003.
 
 SECOND:  That
this Third Amended and Restated Certificate of Incorporation restates and
integrates and amends in its entirety the Amended and Restated Certificate of
Incorporation as currently in effect of the corporation to read in full as set
forth on Exhibit
A attached hereto.
 
 THIRD:  This
Third Amended and Restated Certificate of Incorporation was duly adopted by
written consent of the stockholders of the corporation entitled to vote in
accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
 
 FOURTH:  This
Third Amended and Restated Certificate of Incorporation shall be effective upon
filing with the office of the Secretary of State of the State of
Delaware.
  IN
WITNESS WHEREOF, the Company has caused this Third Amended and Restated
Certificate of Incorporation to be executed this 15th day of May,
2007.
 
 
 TSG
      HOLDINGS CORP.By:
              /s/ John A.
      SaxtonName:
      John A. SaxtonTitle:   President
      and Chief Executive Officer
  
   THIRD
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
  OF
  TSG
HOLDINGS CORP.
  ARTICLE
I
  Name.  The
name of the Corporation is TSG Holdings Corp. (the “Corporation”).
  ARTICLE
II
  Registered Office and
Registered Agent.  The address of the Corporation’s registered
office in the State of Delaware is Corporation Trust Center, 1209 Orange Street,
in the City of Wilmington, County of New Castle, Delaware 19801.  The
name of the Corporation’s registered agent at such address is The Corporation
Trust Company.
  ARTICLE
III
  Purpose.  The
purposes for which the Corporation is formed are to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware and to possess and exercise all of the powers and privileges
granted by such law and any other law of Delaware.
  ARTICLE
IV
  Authorized
Capital.  The aggregate number of shares which the Corporation
is authorized to issue is one million two hundred thousand (1,200,000) shares,
divided into two (2) classes consisting of two hundred thousand (200,000) shares
of Preferred Stock, par value $.001 per share (“Preferred Stock”), of
which fifty thousand (50,000) shares are designated “Series A Preferred
Stock” and twenty thousand (20,000) shares are designated “Series B Preferred
Stock”; and one million (1,000,000) shares of Common Stock, par value
$.001 per share (“Common
Stock”).
  The
following is a statement of the designations, preferences, qualifications,
limitations, restrictions and the special or relative rights granted to or
imposed upon the shares of each such class.
  (1)           PREFERRED
STOCK
  (a)           Issue in
Series.  Preferred Stock may be issued from time to time in one
or more series, each such series to have the terms stated in this Third Amended
and Restated Certificate of Incorporation and/or the resolution of the Board of
Directors of the Corporation providing for its issue.  All shares of
any one series of Preferred Stock will be identical, but shares of different
series of Preferred Stock need not be identical or rank equally except insofar
as provided by law or in this Third Amended and Restated Certificate of
Incorporation.
  -1-
  (b)           Creation of
Series.  The Board of Directors will have authority by
resolution to cause to be created one or more series of Preferred Stock (in
addition to the Series A Preferred Stock and the Series B Preferred Stock whose
terms are set forth in paragraphs (2) and (3) below), and to determine and fix
with respect to each such series prior to the issuance of any shares of the
series to which such resolution relates:
  (i)           The
distinctive designation of the series and the number of shares which will
constitute the series, which number may be increased or decreased (but not below
the number of shares then outstanding) from time to time by action of the Board
of Directors;
  (ii)          The
dividend rate and the times of payment of dividends on the shares of the series,
whether dividends will be cumulative, and if so, from what date or
dates;
  (iii)         The
price or prices at which, and the terms and conditions on which, the shares of
the series may be redeemed at the option of the Corporation;
  (iv)        Whether
or not the shares of the series will be entitled to the benefit of a retirement
or sinking fund to be applied to the purchase or  redemption of such
shares and, if so entitled, the amount of such fund and the terms and provisions
relative to the operation thereof;
  (v)         Whether
or not the shares of the series will be convertible into, or exchangeable for,
any other shares of stock of the Corporation or other securities, and if so
convertible or exchangeable, the conversion price or prices, or the rates of
exchange, and any adjustments thereof, at which such conversion or exchange may
be made, and any other terms and conditions of such conversion or
exchange;
  (vi)        The
rights of the shares of the series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
  (vii)       Whether
or not the shares of the series will have priority over or be on a parity with
or be junior to the shares of any other series or class in any respect or will
be entitled to the benefit of limitations restricting the issuance of shares of
any other series or class having priority over or being on a parity with or
being junior to the shares of such series in any respect, or restricting the
payment of dividends on or the making of other distributions in respect of
shares of any other series or class ranking on a party with or junior to the
shares of the series as to dividends or assets, or restricting the purchase or
redemption of the shares of any such parity or junior series or class, and the
terms of any such restriction;
  -2-
  (viii)      Whether
the series will have voting rights, in addition to any voting rights provided by
law, and, if so, the terms of such voting rights; and
  (ix)         Any
other preferences, qualifications, privileges, options and other relative or
special rights and limitations of that series.
  (c)           Dividends.  Holders
of Preferred Stock shall be entitled to receive, when and as declared by the
Board of Directors, out of funds legally available for the payment thereof,
dividends at the rates fixed in this Third Amended and Restated Certificate of
Incorporation or by the Board of Directors for the respective series, and no
more, before any dividends shall be declared and paid, or set apart for payment,
on Common Stock with respect to the same dividend period.
  (d)         Preference on
Liquidation.  In the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, holders of each
series of Preferred Stock will be entitled to receive the amount fixed for such
series plus, in the case of any series on which dividends will have been
determined in this Third Amended and Restated Certificate of Incorporation or by
the Board of Directors to be cumulative, an amount equal to all dividends
accumulated and unpaid thereon to the date of final distribution whether or not
earned or declared before any distribution shall be paid, or set aside for
payment, to holders of Common Stock.  If the assets of the Corporation
are not sufficient to pay such amounts in full, holders of all shares of
Preferred Stock will participate in the distribution of assets ratably in
proportion to the full amounts to which they are entitled or in such order or
priority, if any, as will have been set forth in this Third Amended and Restated
Certificate of Incorporation or in the resolution or resolutions of the Board of
Directors providing for the creation of the series of Preferred
Stock.  Neither the merger nor consolidation of the Corporation into
or with any other corporation, nor a sale, transfer or lease of all or part of
its assets, will be deemed a liquidation, dissolution or winding up of the
Corporation within the meaning of this paragraph except to the extent
specifically provided for in this Third Amended and Restated Certificate of
Incorporation or in the resolution or resolutions of the Board of Directors
fixing the terms of such series of Preferred Stock.
  (e)           Redemption.  The
Corporation, at the option of the Board of Directors, may redeem all or part of
the shares of any series of Preferred Stock on the terms and conditions fixed
for such series.
  -3-
  (f)           Voting
Rights.  Except as otherwise required by law or as otherwise
provided in this Third Amended and Restated Certificate of Incorporation or in
the resolution or resolutions of the Board of Directors fixing the terms of such
series of Preferred Stock, the holders of Preferred Stock shall have no voting
rights and shall not be entitled to any notice of meeting of
stockholders.
  (2)           SERIES A PREFERRED
STOCK
  (a)           Designation of Series A and
Series B Preferred Stock.  The first series of Preferred Stock
of the Company shall be Series A 10% Cumulative Compounding Preferred Stock
(“Series A Preferred
Stock”), and the number of shares which shall constitute such series
shall be fifty  thousand (50,000).  The par value of the
Series A Preferred Stock shall be $.001 per share.
  (b)           Rank.  With
respect to dividend rights and rights on liquidation, winding up and dissolution
of the Corporation, Series A Preferred Stock shall rank (i) senior to (1) the
Common Stock of the Corporation and (2) each other class of capital stock or
class or series of Preferred Stock issued by the Corporation after the date
hereof the terms of which specifically provide that such class or series shall
rank junior to Series A Preferred Stock as to dividend distributions or
distributions upon the liquidation, winding up and dissolution of the
Corporation (each of the securities in clauses (1) and (2) collectively referred
to as “Series A Junior
Securities”), (ii) on a parity with each other class of capital stock or
class or series of Preferred Stock issued by the Corporation after the date
hereof the terms of which do not specifically provide that such class or series
shall rank junior to Series A Preferred Stock or senior to Series A Preferred
Stock as to dividend distributions or distributions upon liquidation, winding up
and dissolution of the Corporation, including the Series B Preferred Stock
(collectively referred to as “Series A Parity
Securities”), and (iii) junior to each other class of capital stock or
other class or series of Preferred Stock issued by the Corporation after the
date hereof the terms of which specifically provide that such class or series
shall rank senior to Series A Preferred Stock as to dividend distributions or
distributions upon the liquidation, winding up and dissolution of the
Corporation (collectively referred to as “Series A Senior
Securities”).  For the avoidance of doubt, the Series A
Preferred Stock shall rank on a parity with the Series B Preferred Stock and the
Series B Preferred Stock are Series A Parity Securities.
  (c)           Dividends.
  (i)           Each
Holder (as defined in paragraph (4)) of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
funds legally available therefor, cash dividends on each share of Series A
Preferred Stock at a rate per
annumequal to 10.0% of the Liquidation Preference (as defined in
paragraph (4)).  All dividends shall be cumulative, whether or not
earned or declared, and shall accrue on a share of Series A Preferred Stock on a
daily basis from the date of issuance of such share, and shall be payable
annually in arrears on each Dividend Payment Date (as defined in paragraph (4)),
commencing on the first Dividend Payment Date after the date of issuance of such
share.  Each dividend on Series A Preferred Stock shall be payable to
the Holders of record of Series A Preferred Stock as they appear on the stock
register of the Corporation on such record date as may be fixed by the Board of
Directors, which record date shall not be less than 10 nor more than 60 days
prior to the applicable Dividend Payment Date.  Dividends shall cease
to accrue in respect of shares of Series A Preferred Stock on the date of their
repurchase by the Corporation unless the Corporation shall have failed to pay
the relevant repurchase price on the date fixed for
repurchase.  Notwithstanding anything to the contrary set forth above,
unless and until such dividends are declared by the Board of Directors, there
shall be no obligation to pay such dividends in cash; provided, however, that such
dividends shall continue to cumulate and shall be paid at the time of repurchase
as provided herein if not earlier declared and paid.
  -4-
  (ii)         All
dividends paid with respect to shares of Series A Preferred Stock pursuant to
paragraph (2)(c)(i) shall be paid pro rata to the Holders
entitled thereto.
  (iii)        Dividends
on account of arrears for any past Dividend Period may be declared and paid at
any time, without reference to any regular Dividend Payment Date, to the Holders
of record on any date as may be fixed by the Board of Directors, which date is
not more than 30 days prior to the payment of such dividends.
  (iv)        No
full dividends shall be declared by the Board of Directors or paid or funds set
apart for the payment of dividends or other distributions on any Series A Parity
Securities for any period, nor may funds be set apart for such payment, unless
(1) full Accumulated Dividends have been paid or set apart for such payment on
the Series A Preferred Stock and Series A Parity Securities for all Dividend
Periods (and dividend periods for Series A Parity Securities) terminating on or
prior to the date of payment of such full dividends or distributions on such
Series A Parity Securities (the “Series A Parity Payment
Date”) and (2) an amount equal to a prorated dividend on the Series A
Preferred Stock and Series A Parity Securities at the customary dividend rates
for such securities for the period from, in the case of Series A Preferred
Stock, the Dividend Payment Date and, in the case of Series A Parity Securities,
the dividend payment date immediately prior to the Series A Parity Payment Date
to the Series A Parity Payment Date, have been paid or set apart for
payment.  In the event that such dividends are not paid in full or set
apart for payment with respect to all outstanding shares of Series A Preferred
Stock and of any Series A Parity Securities and funds available for payment of
dividends shall be insufficient to permit payment in full to the holders of all
such stock or securities of the full preferential amounts to which they are then
entitled, then the entire amount available for payment of dividends shall be
distributed ratably among all such holders of Series A Preferred Stock and of
any Series A Parity Securities in proportion to the full amount to which they
would otherwise be respectively entitled.
  -5-
  (v)         The
Holders shall be entitled to receive the dividends provided for in paragraph
(2)(c)(i) hereof in preference to and in priority over any dividends or
distributions upon any of the Series A Junior Securities. Such dividends on the
Series A Preferred Stock shall be cumulative, whether or not earned or declared,
so that if at any time full Accumulated Dividends on all shares of Series A
Preferred Stock then outstanding have not been paid for all Dividend Periods
then elapsed and a prorated dividend on the Series A Preferred Stock at the rate
aforesaid from the Dividend Payment Date immediately preceding the Series A
Junior Payment Date (as defined below) to the Series A Junior Payment Date have
not been paid or set aside for payment, the amount of such unpaid dividends
shall be paid before any sum shall be set aside for or applied by the
Corporation to the purchase, redemption or other acquisition for value of any
Series A Junior Securities (either pursuant to any applicable sinking fund
requirement or otherwise) or any dividend or other distribution shall be paid or
declared and set apart for payment on any Series A Junior Securities (the date
of any such actions to be referred to as the “Series A Junior Payment
Date”); provided, however, that the
foregoing shall not (1) prohibit the Corporation from repurchasing Series A
Junior Securities, or options, warrants or other rights to purchase such Series
A Junior Securities, from a holder who is, or was, a director or employee of the
Corporation (or a direct or indirect subsidiary of the Corporation) or (2)
prohibit the Corporation from making dividends, other distributions,
redemptions, repurchases or acquisitions in respect of Series A Junior
Securities payable in Series A Junior Securities and cash in lieu of fractional
Series A Junior Securities.
  (vi)        No
payment in cash or otherwise on account of the purchase, redemption, retirement
or other acquisition of Series A Parity Securities shall be made, and no sum
shall be set aside for or applied by the Corporation to any Series A Parity
Securities (either pursuant to any applicable sinking fund requirement or
otherwise) at any time any shares of Series A Preferred Stock are outstanding
unless, prior to such payment or setting aside or applying such sum to the
purchase, redemption, retirement or other acquisition of any Series A Parity
Securities, all shares of Series A Preferred Stock shall have been purchased or
otherwise acquired by the Corporation for value (and the purchase price therefor
has been paid in cash); provided, however, that the
foregoing shall not (1) prohibit the Corporation from repurchasing Series A
Parity Securities, or options, warrants or other rights to purchase such Series
A Parity Securities, from a holder who is, or was, a director or employee of the
Corporation (or a direct or indirect subsidiary of the Corporation) or (2)
prohibit the Corporation from making any purchase, redemption, retirement or
other acquisition of Series A Parity Securities payable in Series A Parity
Securities and cash in lieu of fractional Series A Parity
Securities.
  -6-
  (vii)       No
payment in cash or otherwise on account of the purchase, redemption, retirement
or other acquisition of Series A Junior Securities shall be made, and no sum
shall be set aside for or applied by the Corporation to any Series A Junior
Securities (either pursuant to any applicable sinking fund requirement or
otherwise) at any time any shares of Series A Preferred Stock are outstanding
unless, prior to such payment or setting aside or applying such sum to the
purchase, redemption, retirement or other acquisition of any Series A Junior
Securities, all shares of Series A Preferred Stock shall have been purchased or
otherwise acquired by the Corporation for value (and the purchase price therefor
has been paid or set aside for payment); provided, however, that the
foregoing shall not (1) prohibit the Corporation from repurchasing Series A
Junior Securities, or options, warrants or other rights to purchase such Series
A Junior Securities from a holder who is, or was, a director or employee of the
Corporation (or a direct or indirect subsidiary of the Corporation) or (2)
prohibit the Corporation from making any purchase, redemption, retirement or
other acquisition of Series A Junior Securities payable in Series A Junior
Securities and cash in lieu of fractional Series A Junior
Securities.
  (viii)      Dividends
payable on Series A Preferred Stock for any period less than one year shall be
computed on the basis of a 365-day year (or in the case of a leap year, on the
basis of a 366-day year) and the actual number of days elapsed in the period for
which such dividends are payable.
  (d)           Liquidation
Preference.
  (i)          Upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the Holders of all shares of Series A Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders an amount in cash equal to the
Liquidation Preference per share, plus an amount equal to a prorated dividend
from the last Dividend Payment Date to the date fixed for liquidation,
dissolution or winding up, before any distribution is made on any Series A
Junior Securities.  If upon any  voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the application of
all amounts available for payments with respect to Series A Preferred Stock and
all other Series A Parity Securities would not result in payment in full of
Series A Preferred Stock and such other Series A Parity Securities, the Holders
of Series A Preferred Stock and holders of Series A Parity Securities shall
share equally and ratably in any distribution of assets of the Corporation in
proportion to the full liquidation preference to which each is
entitled.  After payment in full pursuant to this paragraph (2)(d)(i),
the Holders of Series A Preferred Stock shall not be entitled to any further
participation in any distribution in the event of liquidation, dissolution or
winding up of the affairs of the Corporation on account of shares of Series A
Preferred Stock.
  -7-
  (ii)          For
the purposes of this paragraph (2)(d), neither the voluntary sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
Corporation nor the consolidation, merger or other business combination of the
Corporation with one or more corporations shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, unless
such sale, conveyance, exchange or transfer is in connection with a dissolution
or winding up of the business of the Corporation; provided, however, that any
consolidation or merger of the Corporation in which the Corporation is not the
surviving entity shall be deemed to be a liquidation, dissolution or winding up
of the Corporation within the meaning of this paragraph (2)(d) if, (1) in
connection therewith, the holders of Common Stock of the Corporation receive as
consideration, whether in whole or in part, for such Common Stock (A) cash, (B)
notes, debentures or other evidences of indebtedness or obligations to pay cash
or (C) preferred stock of the surviving entity (whether or not the surviving
entity is the Corporation) which ranks on a parity with or senior to the
preferred stock received by Holders of Series A Preferred Stock with respect to
liquidation or dividends or (2) the Holders of Series A Preferred Stock do not
receive preferred stock of the surviving entity with rights, powers and
preferences equal to (or more favorable to the holders than) the rights, powers
and preferences of the Series A Preferred Stock.
  (e)           Voting
Rights.
  (i)           The
Holders of Series A Preferred Stock shall not be entitled or permitted to vote
on any matter required or permitted to be voted upon by the stockholders of the
Corporation, except as otherwise required by law or this Certificate of
Incorporation.
  (ii)          In
any case in which the Holders of Series A Preferred Stock shall be entitled to
vote, each Holder shall be entitled to one vote for each share of Series A
Preferred Stock held except as otherwise required by applicable
law.  The holders of Series A Preferred Stock and Series B Preferred
Stock shall vote together as a single class and not as separate
classes.
  -8-
  (f)           Conversion or
Exchange.  The Holders of Series A Preferred Stock shall not
have any rights hereunder to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
  (g)           Reissuance of Series A
Preferred Stock.  Shares of Series A Preferred Stock which have
been issued and reacquired in any manner, including shares purchased, redeemed
or exchanged, shall have the status of authorized and unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors or as part
of any other series of Preferred Stock, all subject to the conditions or
restrictions on issuance set forth in this Certificate of Incorporation or in
any resolution or resolutions adopted by the Board of Directors providing for
the issuance of any series of Preferred Stock, it being understood that the
Corporation may reissue shares of Series A Preferred Stock which are reacquired
by the Corporation from a Holder who is, or was, an employee or director of the
Corporation (or a direct or indirect subsidiary of the Corporation) so long as
such reissued shares of Series A Preferred Stock are reissued to a person who is
an employee or director of the Corporation (or a direct or indirect subsidiary
of the Corporation) at the time of such reissue.
  (h)           Business
Day.  If any payment shall be required by the terms hereof to
be made on a day that is not a Business Day, such payment shall be made on the
immediately succeeding Business Day.
  (i)           Certain Additional
Provisions.
  (i)           The
Corporation shall have neither the right nor the power to, and the Holders of
the Series A Preferred Stock shall not have the right to require the Corporation
to, redeem any shares of the Series A Preferred
Stock.  Notwithstanding the foregoing, this subparagraph (i)(i) shall
not prohibit the Corporation from acquiring from any Holder, with such Holder’s
consent, any shares of the Series A Preferred Stock held by such
Holder.
  (ii)          Method of
Payment.  Series A Preferred Stock shall be payable as to
liquidation preference, dividends, redemption payments, cash in lieu of
fractional shares or other payments at the office of the Corporation maintained
for such purpose or, at the option of the Corporation, payment of dividends may
be made by check mailed to the Holders at their addresses set forth in the stock
register of the Corporation.
  -9-
  (j)           Reservation of
Right.  The Board of Directors of the Corporation reserves the
right by subsequent amendment of this Certificate of Incorporation to increase
or decrease the number of shares constituting Series A Preferred Stock (but not
below the number of shares then outstanding) and in other respects to amend this
Certificate of Incorporation within the limits provided by law, this Certificate
of Incorporation and any applicable contract or instrument binding on the
Corporation.
  (3)           SERIES B PREFERRED
STOCK
  (a)           Designation of Second Series
of Preferred Stock.  The second series of Preferred Stock shall
be Series B 10% Cumulative Compounding Preferred Stock (“Series B Preferred
Stock”), and the number of shares which shall constitute such series
shall be twenty thousand (20,000).  The par value of Series B
Preferred Stock shall be $.001 per share.
  (b)           Rank.  With
respect to dividend rights and rights on liquidation, winding up and dissolution
of the Corporation, Series B Preferred Stock shall rank (i) senior to (1) the
Common Stock of the Corporation, and (2) each other class of capital stock or
class or series of Preferred Stock issued by the Corporation after the date
hereof the terms of which specifically provide that such class or series shall
rank junior to Series B Preferred Stock as to dividend distributions or
distributions upon the liquidation, winding up and dissolution of the
Corporation (each of the securities in clauses (1) and (2) collectively referred
to as “Series B Junior
Securities”), (ii) on a parity with each other class of capital stock or
class or series of Preferred Stock issued by the Corporation after the date
hereof the terms of which do not specifically provide that such class or series
shall rank junior to Series B Preferred Stock or senior to Series B Preferred
Stock as to dividend distributions or distributions upon liquidation, winding up
and dissolution of the Corporation, including the Series A Preferred Stock
(collectively referred to as “Series B Parity
Securities”), and (iii) junior to each other class of capital stock or
other class or series of Preferred Stock issued by the Corporation after the
date hereof the terms of which specifically provide that such class or series
shall rank senior to Series B Preferred Stock as to dividend distributions or
distributions upon the liquidation, winding up and dissolution of the
Corporation (collectively referred to as “Series B Senior
Securities”).  For the avoidance of doubt, the Series B
Preferred Stock shall rank on a parity with the Series A Preferred Stock and the
Series A Preferred Stock are Series B Parity Securities.
  -10-
  (c)           Dividends.
  (i)           Each
Holder (as defined in paragraph (4)) of Series B Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
funds legally available therefor, cash dividends on each share of Series B
Preferred Stock at a rate per
annumequal to 10% of the Liquidation Preference (as defined in paragraph
(4)).  All dividends shall be cumulative, whether or not earned or
declared, and shall accrue on a share of Series B Preferred Stock on a daily
basis from the date of issuance of such share, and shall be payable annually in
arrears on each Dividend Payment Date (as defined in paragraph (4)), commencing
on the first Dividend Payment Date after the date of issuance of such
share.  Each dividend on Series B Preferred Stock shall be payable to
the Holders of record of Series B Preferred Stock as they appear on the stock
register of the Corporation on such record date as may be fixed by the Board of
Directors, which record date shall not be less than 10 nor more than 60 days
prior to the applicable Dividend Payment Date.  Dividends shall cease
to accrue in respect of shares of Series B Preferred Stock on the date of their
repurchase by the Corporation unless the Corporation shall have failed to pay
the relevant repurchase price on the date fixed for
repurchase.  Notwithstanding anything to the contrary set forth above,
unless and until such dividends are declared by the Board of Directors, there
shall be no obligation to pay such dividends in cash; provided, however, that such
dividends shall continue to cumulate and shall be paid at the time of repurchase
as provided herein if not earlier declared and paid.
  (ii)          All
dividends paid with respect to shares of Series B Preferred Stock pursuant to
paragraph (3)(c)(i) shall be paid pro rata to the Holders
entitled thereto.
  (iii)        Dividends
on account of arrears for any past Dividend Period may be declared and paid at
any time, without reference to any regular Dividend Payment Date, to the Holders
of record on any date as may be fixed by the Board of Directors, which date is
not more than 30 days prior to the payment of such dividends.
  (iv)        No
full dividends shall be declared by the Board of Directors or paid or funds set
apart for the payment of dividends or other distributions on any Series B Parity
Securities for any period, nor may funds be set apart for such payment, unless
(1) full Accumulated Dividends have been paid or set apart for such payment on
the Series B Preferred Stock and Series B Parity Securities for all Dividend
Periods (and dividend periods for Series B Parity Securities) terminating on or
prior to the date of payment of such full dividends or distributions on such
Series B Parity Securities (the “Series B Parity Payment
Date”) and (2) an amount equal to a prorated dividend on the Series B
Preferred Stock and Series B Parity Securities at the customary dividend rates
for such securities for the period from, in the case of Series B Preferred
Stock, the Dividend Payment Date and, in the case of Series B Parity Securities,
the dividend payment date immediately prior to the Series B Parity Payment Date
to the Series B Parity Payment Date, have been paid or set apart for
payment.  In the event that such dividends are not paid in full or set
apart for payment with respect to all outstanding shares of Series B Preferred
Stock and of any Series B Parity Securities and funds available for payment of
dividends shall be insufficient to permit payment in full to the holders of all
such stock or securities of the full preferential amounts to which they are then
entitled, then the entire amount available for payment of dividends shall be
distributed ratably among all such holders of Series B Preferred Stock and of
any Series B Parity Securities in proportion to the full amount to which they
would otherwise be respectively entitled.
  -11-
  (v)         The
Holders shall be entitled to receive the dividends provided for in paragraph
(3)(c)(i) hereof in preference to and in priority over any dividends or
distributions upon any of the Series B Junior Securities. Such dividends on the
Series B Preferred Stock shall be cumulative, whether or not earned or declared,
so that if at any time full Accumulated Dividends on all shares of Series B
Preferred Stock then outstanding have not been paid for all Dividend Periods
then elapsed and a prorated dividend on the Series B Preferred Stock at the rate
aforesaid from the Dividend Payment Date immediately preceding the Series B
Junior Payment Date (as defined below) to the Series B Junior Payment Date have
not been paid or set aside for payment, the amount of such unpaid dividends
shall be paid before any sum shall be set aside for or applied by the
Corporation to the purchase, redemption or other acquisition for value of any
Series B Junior Securities (either pursuant to any applicable sinking fund
requirement or otherwise) or any dividend or other distribution shall be paid or
declared and set apart for payment on any Series B Junior Securities (the date
of any such actions to be referred to as the “Series B Junior Payment
Date”); provided, however, that the
foregoing shall not (1) prohibit the Corporation from repurchasing Series B
Junior Securities, or options, warrants or other rights to purchase such Series
B Junior Securities, from a holder who is, or was, a director or employee of the
Corporation (or a direct or indirect subsidiary of the Corporation) or (2)
prohibit the Corporation from making dividends, other distributions,
redemptions, repurchases or acquisitions in respect of Series B Junior
Securities payable in Series B Junior Securities and cash in lieu of fractional
Series B Junior Securities.
  (vi)        No
payment in cash or otherwise on account of the purchase, redemption, retirement
or other acquisition of Series B Parity Securities shall be made, and no sum
shall be set aside for or applied by the Corporation to any Series B Parity
Securities (either pursuant to any applicable sinking fund requirement or
otherwise) at any time any shares of Series B Preferred Stock are outstanding
unless, prior to such payment or setting aside or applying such sum to the
purchase, redemption, retirement or other acquisition of any Series B Parity
Securities, all shares of Series B Preferred Stock shall have been purchased or
otherwise acquired by the Corporation for value (and the purchase price therefor
has been paid in cash); provided, however, that the
foregoing shall not (1) prohibit the Corporation from repurchasing Series B
Parity Securities, or options, warrants or other rights to purchase such Series
B Parity Securities, from a holder who is, or was, a director or employee of the
Corporation (or a direct or indirect subsidiary of the Corporation) or (2)
prohibit the Corporation from making any purchase, redemption, retirement or
other acquisition of Series B Parity Securities payable in Series B Parity
Securities and cash in lieu of fractional Series B Parity
Securities.
  -12-
  (vii)       No
payment in cash or otherwise on account of the purchase, redemption, retirement
or other acquisition of Series B Junior Securities shall be made, and no sum
shall be set aside for or applied by the Corporation to any Series B Junior
Securities (either pursuant to any applicable sinking fund requirement or
otherwise) at any time any shares of Series B Preferred Stock are outstanding
unless, prior to such payment or setting aside or applying such sum to the
purchase, redemption, retirement or other acquisition of any Series B Junior
Securities, all shares of Series B Preferred Stock shall have been purchased or
otherwise acquired by the Corporation for value (and the purchase price therefor
has been paid or set aside for payment); provided, however, that the
foregoing shall not (1) prohibit the Corporation from repurchasing Series B
Junior Securities, or options, warrants or other rights to purchase such Series
B Junior Securities from a holder who is, or was, a director or employee of the
Corporation (or a direct or indirect subsidiary of the Corporation) or (2)
prohibit the Corporation from making any purchase, redemption, retirement or
other acquisition of Series B Junior Securities payable in Series B Junior
Securities and cash in lieu of fractional Series B Junior
Securities.
  (viii)      Dividends
payable on Series B Preferred Stock for any period less than one year shall be
computed on the basis of a 365-day year (or in the case of a leap year, on the
basis of a 366-day year) and the actual number of days elapsed in the period for
which such dividends are payable.
  (d)           Liquidation
Preference.
  (i)           Upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the Holders of all shares of Series B Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders an amount in cash equal to the
Liquidation Preference per share, plus an amount equal to a prorated dividend
from the last Dividend Payment Date to the date fixed for liquidation,
dissolution or winding up, before any distribution is made on any Series B
Junior Securities.  If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the application of all amounts
available for payments with respect to Series B Preferred Stock and all other
Series B Parity Securities would not result in payment in full of Series B
Preferred Stock and such other Series B Parity Securities, the Holders of Series
B Preferred Stock and holders of Series B Parity Securities shall share equally
and ratably in any distribution of assets of the Corporation in proportion to
the full liquidation preference to which each is entitled.  After
payment in full pursuant to this paragraph (3)(d)(i), the Holders of Series B
Preferred Stock shall not be entitled to any further participation in any
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation on account of shares of Series B Preferred
Stock.
  -13-
  (ii)         For
the purposes of this paragraph (3)(d), neither the voluntary sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
Corporation nor the consolidation, merger or other business combination of the
Corporation with one or more corporations shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, unless
such sale, conveyance, exchange or transfer is in connection with a dissolution
or winding up of the business of the Corporation; provided, however, that any
consolidation or merger of the Corporation in which the Corporation is not the
surviving entity shall be deemed to be a liquidation, dissolution or winding up
of the Corporation within the meaning of this paragraph (3)(d) if, (1) in
connection therewith, the holders of Common Stock of the Corporation receive as
consideration, whether in whole or in part, for such Common Stock (A) cash, (B)
notes, debentures or other evidences of indebtedness or obligations to pay cash
or (C) preferred stock of the surviving entity (whether or not the surviving
entity is the Corporation) which ranks on a parity with or senior to the
preferred stock received by Holders of Series B Preferred Stock with respect to
liquidation or dividends or (2) the Holders of Series B Preferred Stock do not
receive preferred stock of the surviving entity with rights, powers and
preferences equal to (or more favorable to the holders than) the rights, powers
and preferences of the Series B Preferred Stock.
  (e)           Voting
Rights.
  (i)          The
Holders of Series B Preferred Stock shall not be entitled or permitted to vote
on any matter required or permitted to be voted upon by the stockholders of the
Corporation, except as otherwise required by law or this Certificate of
Incorporation.  The holders of Series
  -14-
  A
Preferred Stock and Series B Preferred Stock shall vote together as a single
class and not as separate classes.
  (ii)         
In any case in which the Holders of Series B Preferred Stock shall be entitled
to vote, each Holder shall be entitled to one vote for each share of Series B
Preferred Stock held except as otherwise required by applicable
law.  The holders of Preferred Stock shall vote together and not as
separate classes.
  (f)        
   Conversion or
Exchange.  The Holders of Series B Preferred Stock shall not
have any rights hereunder to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
  (g)           Reissuance of Series B
Preferred Stock.  Shares of Series B Preferred Stock which have
been issued and reacquired in any manner, including shares purchased, redeemed
or exchanged, shall have the status of authorized and unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors or as part
of any other series of Preferred Stock, all subject to the conditions or
restrictions on issuance set forth in this Certificate of Incorporation or in
any resolution or resolutions adopted by the Board of Directors providing for
the issuance of any series of Preferred Stock, it being understood that the
Corporation may reissue shares of Series B Preferred Stock which are reacquired
by the Corporation from a Holder who is, or was, an employee or director of the
Corporation (or a direct or indirect subsidiary of the Corporation) so long as
such reissued shares of Series B Preferred Stock are reissued to a person who is
an employee or director of the Corporation (or a direct or indirect subsidiary
of the Corporation) at the time of such reissue.
  (h)           Business
Day.  If any payment shall be required by the terms hereof to
be made on a day that is not a Business Day, such payment shall be made on the
immediately succeeding Business Day.
  (i)        
    Certain Additional
Provisions.
  (i)           Redemption.  The
Corporation shall have neither the right nor the power to, and the Holders of
Series B Preferred Stock shall not have the right to require the Corporation to,
redeem any shares of Series B Preferred Stock.  Notwithstanding the
foregoing, this subparagraph (i)(i) shall not prohibit the Corporation from
acquiring from any Holder, with such Holder’s consent, any shares of Series B
Preferred Stock held by such Holder.
  (ii)          Method of
Payment.  Series B Preferred Stock shall be payable as to
liquidation preference, dividends, redemption payments, cash in lieu of
fractional shares or other payments at the office of the Corporation maintained
for such purpose or, at the option of the Corporation, payment of dividends may
be made by check mailed to the Holders at their addresses set forth in the stock
register of the Corporation.
  -15-
  (j)           Reservation of
Right.  The Board of Directors of the Corporation reserves the
right by subsequent amendment of this Certificate of Incorporation to increase
or decrease the number of shares constituting Series B Preferred Stock (but not
below the number of shares then outstanding) and in other respects to amend this
Certificate of Incorporation within the limits provided by law, this Certificate
of Incorporation and any applicable contract or instrument binding on the
Corporation.
  (4)           DEFINITIONS.  As
used in paragraphs (2) and (3) of Article IV, the following terms shall have the
following meanings (with terms defined in the singular having comparable
meanings when used in the plural and vice versa), unless the
context otherwise requires:
  “Accumulated
Dividends” means (i) with respect to any share of Series A Preferred
Stock or Series B Preferred Stock, as applicable, the dividends that have
accrued on such share as of such specific date for Dividend Periods ending on or
prior to such date and that have not previously been paid in cash, and (ii) with
respect to any Series A Parity Security or Series B Parity Security, as
applicable, the dividends that have accrued and are due on such security as of
such specific date.
  “Annual Dividend
Period” means the annual period commencing on each August 1 and ending on
the following Dividend Payment Date; provided that from and after May 15, 2006
the Annual Dividend Period means the annual period commencing on each May 16,
and ending on the following Dividend Payment Date.
  “Business Day” means
any day except a Saturday, Sunday or other day on which commercial banking
institutions in New York City are authorized by law or executive order to
close.
  “Dividend Payment
Date” means July 31 of each year; provided that from and after August 2,
2006, the Dividend Payment Date means May 15 of each year.
  “Dividend Period”
means the Initial Dividend Period and, thereafter, each Annual Dividend
Period.
  “Holder” means a
holder of shares of Series A Preferred Stock or Series B Preferred Stock, as
applicable.
  “Initial Dividend
Period” means the dividend period commencing on the Issue Date and ending
on the first Dividend Payment Date to occur thereafter.
  -16-
  “Issue Date” means the
date of issuance of the applicable share or shares of Series A Preferred Stock
or Series B Preferred Stock, as applicable.
  “Liquidation
Preference” means, on any specific date, (i) with respect to any share of
Series A Preferred Stock, the sum of (i) $1,000.00 plus (ii) the Accumulated
Dividends with respect to such share and (ii) with respect to any share of
Series B Preferred Stock, the sum of (i) $1,428.89 plus (ii) the Accumulated
Dividends with respect to such share.
  “Person” means any
individual, corporation, limited liability company, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or any other entity of any kind.
  “Series A Junior Payment
Date” has the meaning given to such term in (2)(c)(v).
  “Series B Junior Payment
Date” has the meaning given to such term in (3)(c)(v).
  “Series A Junior
Securities” has the meaning given to such term in paragraph
(2)(b).
  “Series B Junior
Securities” has the meaning given to such term in paragraph
(3)(b).
  “Series A Parity Payment
Date” has the meaning given to such term in (2)(c)(iv).
  "Series B Parity Payment Date” has
the meaning given to such term in (3)(c)(iv).
  “Series A Parity
Securities” has the meaning given to such term in paragraph
(2)(b).
  “Series B Parity
Securities” has the meaning given to such term in paragraph
(3)(b).
  “Series A Preferred
Stock” has the meaning given to such term in paragraph
(2)(a).
  “Series B Preferred
Stock” has the meaning given to such term in paragraph
(3)(a).
  “Series A Redemption
Date” has the meaning given to such term in paragraph
(3)(i)(ii).
  “Series A Senior
Securities” has the meaning given to such term in paragraph
(2)(b).
  “Series B Senior
Securities” has the meaning given to such term in paragraph
(3)(b).
  -17-
  (5)     
      COMMON
STOCK
  All
shares of Common Stock will be identical and will entitle the holders thereof to
the same rights and privileges.
  (a)     
      Dividends.  Holders
of Common Stock will be entitled to receive such dividends as may be declared by
the Board of Directors;
  (b)     
      Distribution of
Assets.  In the event of the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, holders of Common
Stock will be entitled to receive all of the remaining assets of the Corporation
available for distribution to its stockholders after all amounts to which the
holders of any Preferred Stock are entitled have been paid or set aside in cash
for payment.
  (c)   
        Voting
Rights.  The holders of Common Stock shall have the general
right to vote for all purposes, including the election of directors, as provided
by law; provided, however, that holders
of Common Stock shall not be entitled to vote on any amendment to this Third
Amended and Restated Certificate of Incorporation that relates solely to the
terms of any class or series of Preferred Stock and does not adversely affect or
alter or change the rights, preferences or privileges of the holders of Common
Stock if the holder or holders of such affected series are entitled, either
separately or together with one or more such series, to vote thereon pursuant to
this Third Amended and Restated Certificate of Incorporation or pursuant to the
General Corporation Law of the State of Delaware.  Each holder of
Common Stock shall be entitled to one vote for each share thereof
held.
  ARTICLE
V
  Bylaws.  In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors of the Corporation is authorized to adopt, amend or repeal the
Bylaws of the Corporation, except as otherwise specifically provided
herein.
  ARTICLE
VI
  Board of
Directors.  Election of directors need not be by written ballot
unless the Bylaws of the Corporation so provide.
  ARTICLE
VII
  Right to
Amend.  The Corporation reserves the right to amend any
provision contained in this Third Amended and Restated Certificate of
Incorporation as the same may from time to time be in effect in the manner now
or hereafter prescribed by law, and all rights conferred on stockholders or
others hereunder are subject to such reservation.
  -18-
  ARTICLE
VIII
  Consent of Stockholders in
Lieu of Meeting.  Any action required to be taken, or which may
be taken, at any meeting of stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of shares of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares of
stock entitled to vote thereon were present and voted and shall be delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded; provided, however, that prompt
notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given, to the extent required by law, to
those stockholders who have not consented in writing.
  ARTICLE
IX
  Limitation on
Liability.  The Directors of the Corporation shall be entitled
to the benefits of all limitations on the liability of directors generally that
are now or hereafter become available under the General Corporation Law of
Delaware.  Without limiting the generality of the foregoing, no
Director of the Corporation shall be 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 or its stockholders, (2) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (3) under
Section 174 of the Delaware Corporation Law, or (4) for any transaction from
which the director derived an improper personal benefit.  Any repeal
or modification of this Article IX shall be prospective only, and shall not
affect, to the detriment of any Director, any limitation on the personal
liability of a Director of the Corporation existing at the time of such repeal
or modification.
  -19-