**Exhibit 3.1**

** **

**THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATIONofNETSPEND HOLDINGS, INC.**

 

NETSPENDHOLDINGS, INC., a corporation organized and existing under the GeneralCorporation Law of the State of Delaware DOES HEREBY CERTIFY:

 

1.             The original Certificate ofIncorporation of NetSpend Holdings, Inc. was filed with the Secretary ofState of the State of Delaware on February 18, 2004.  An Amended and Restated Certificate ofIncorporation was filed with the Secretary of State of the State of Delaware onMay 6, 2004.  A Second Amended andRestated Certificate of Incorporation was filed with the Secretary of State ofthe State of Delaware on July 15, 2008.

 

2.             This Third Amended andRestated Certificate of Incorporation (“Certificate of Incorporation”) was dulyadopted in accordance with Section 245 of the General Corporation Law ofthe State of Delaware.  Pursuant toSections 242 and 228 of the General Corporation Law of the State of Delaware,the amendments and restatement herein set forth have been duly adopted by theBoard of Directors and duly adopted by the written consent of the stockholdersof the Corporation.

 

3.             Pursuant to Section 245of the General Corporation Law of the State of Delaware, the Second Amended andRestated Certificate of Incorporation, as heretofore amended, is hereby amendedand restated to read in its entirety as set forth on Exhibit Aattached hereto and, as so amended and restated, this Certificate ofIncorporation shall be the certificate of incorporation of the Corporationuntil such time as it may be amended or restated in accordance with applicablelaw and the provisions thereof.

 

4.             This Certificate ofIncorporation shall become effective at 5:00 p.m. Eastern time, on October 18,2010.

 

 

[*signature page follows*]

 

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INWITNESS WHEREOF, NetSpend Holdings, Inc. has caused this Certificate ofIncorporation to be executed by Daniel R. Henry, its Chief Executive Officer,this 18th day of October, 2010.

 
|   | /s/  Daniel R. Henry     |
|--------|--------------------------|
|   | Daniel  R. Henry         |
|   | Chief  Executive Officer |

 

 

*[SignaturePage to Third Amended and Restated Certificate of Incorporation]*

 

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**Exhibit A**

 

**THIRD AMENDED AND RESTATED**

**CERTIFICATE OF INCORPORATIONofNETSPEND HOLDINGS, INC.**

 

**ARTICLE 1**

**CORPORATE NAME**

 

The name of the corporation is NetSpend Holdings, Inc.(the “Corporation”).

 

**ARTICLE 2**

**PURPOSE**

 

The purpose of the Corporation is to engage in anylawful business, act or activity for which corporations may be organized underthe General Corporation Law of the State of Delaware or any successor statute(the “DGCL”).

 

**ARTICLE 3**

**REGISTERED ADDRESS AND AGENT**

 

The address of the registered office of theCorporation in the State of Delaware is 1209 Orange Street, in the City ofWilmington, County of New Castle.  Thename of its registered agent at such address is The Corporation Trust Company.

 

**ARTICLE 4**

**AUTHORIZED CAPITAL STOCK**

 

(a)           *AuthorizedShares*.* *Thetotal number of shares of all classes of capital stock which the Corporationshall have authority to issue is 250,000,000 shares, which shall consist of:

 

(i)            240,000,000shares of common stock, par value $0.001 per share, of which 225,000,000 sharesshall be designated Common Stock, par value $0.001 per share  (“Common Stock”), and 15,000,000 shares shallbe designated Class B Common Stock, par value $0.001 per share (“Class BCommon Stock”).

 

(ii)           10,000,000shares of preferred stock, par value $0.001 per share (the “Preferred Stock”).

 

Shares of any class of capital stock of theCorporation may be issued for such consideration and for such corporatepurposes as the Board of Directors of the Corporation (the “Board of Directors”)may from time to time determine.  Thenumber of authorized shares of any of the Preferred Stock or the Common Stockor the Class B Common Stock may be increased or decreased (but not belowthe number of shares thereof then outstanding) by the affirmative vote of theholders of a majority in voting power of the stock of the Corporation entitledto vote thereon irrespective of the provisions of Section 242(b)(2) ofthe DGCL (or any successor provision thereto), and no vote of the holders ofany of the Preferred Stock or the Common Stock or Class B Common Stockvoting separately as a class shall be required therefor.

 

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(b)           *PreferredStock*.

 

(i)         General.  The Preferred Stock may be divided into andissued from time to time in one or more series as may be fixed and determinedby the Board of Directors.

 

(ii)        Rights andPreferences.  Therelative rights and preferences of the Preferred Stock of each series shall besuch as shall be stated in any resolution or resolutions adopted by the Boardof Directors setting forth the designation of the series and fixing anddetermining the relative rights and preferences thereof, any such resolution orresolutions being herein called a “Directors’ Resolution.”  The authority of the Board of Directors withrespect to each series of Preferred Stock shall include, but not be limited to,determination of the following: (i) the number of shares constituting thatseries and the distinctive designation of that series; (ii) the dividendrate, if any, or any method of computing the dividend on the shares of thatseries, whether dividends shall be cumulative, and, if so, from which date ordates, and the relative rights of priority, if any, of payment of dividends onshares of that series; (iii) whether that series shall have voting rights,in addition to the voting rights provided by law, and, if so, the terms of suchvoting rights; (iv) whether that series shall have conversion or exchangeprivileges, and, if so, the terms and conditions of such conversion orexchange, including provisions for adjustment of the conversion or exchangerate in such events as the Board of Directors shall determine; (v) whetheror not the shares of that series shall be redeemable, and, if so, the terms andconditions of such redemption, including the date or dates upon or after whichthey shall be redeemable, and the amount per share payable in case ofredemption, which amount may vary under different conditions and at differentredemption dates; (vi) whether that series shall have a sinking fund forthe redemption or purchase of shares of that series, and, if so, the terms andamount of such sinking fund; (vii) the rights of the shares of that seriesin the event of voluntary or involuntary liquidation, dissolution or winding upof the Corporation, and the relative rights of priority, if any, of payment ofshares of that series; and (viii) any other relative rights, preferencesand limitations of that series.  TheCommon Stock shall be subject to the express terms of any series of PreferredStock.

 

(c)           *CommonStock*.

 

(i)         General.  Except as otherwise provided in thisCertificate of Incorporation or as otherwise required by applicable law, allshares of Common Stock and Class B Common Stock shall be identical in allrespects and shall entitle the holders thereof to the same rights andprivileges, subject to the same qualifications, limitations and restrictions.

 

(ii)        Voting.

 

A             Common Stock.  Except as otherwise provided in this Article 4or required by law, each registered holder of Common Stock shall be entitled toone vote for each share of Common Stock held by such holder on each matterproperly submitted to the stockholders of the Corporation for their vote; *provided, however*, that, except as otherwise required bylaw, holders of Common Stock shall not be entitled to vote on any amendment tothis Third Amended and Restated Certificate of Incorporation (“Certificate ofIncorporation”) (including any certificate of designation with respect to aseries of Preferred Stock) that 

 

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relates solely to the terms of one or moreoutstanding series of Preferred Stock if the holders of such affected seriesare entitled, either separately or together as a class with the holders of oneor more other such series, to vote thereon by law or pursuant to thisCertificate of Incorporation (including any such certificate ofdesignation).  Except as otherwiseprovided in this Article 4 or required by law and subject to the rights ofthe holders of any series of Preferred Stock, (i) holders of Common Stockshall be entitled to elect directors of the Corporation; and (ii) holdersof Common Stock shall be entitled to vote on all other matters properlysubmitted to a vote of stockholders of the Corporation.  Cumulative voting of shares of Common Stockis prohibited.

 

B             Class BCommon Stock.  Except asotherwise required by applicable law (in which case the holders of Class BCommon Stock shall vote (at the rate of one vote per share of Class BCommon Stock held) as a single class), the holders of Class B Common Stockshall not have any voting rights.

 

(iii)       Dividends.  Subject to applicable law and subject to anypreferential dividend rights of outstanding Preferred Stock, the holders ofCommon Stock and Class B Common Stock shall be entitled to receivedividends in the same amount per share out of funds legally available thereforat such times and in such amounts as the Board of Directors may determine inits sole discretion.

 

(iv)       Liquidation.  Subject to the prior rights of holders of allclasses of stock at the time outstanding having prior rights as todistributions in the event of liquidation, dissolution or winding up of the Corporation,and after any and all distributions are made in accordance therewith, in suchevent, either voluntary or involuntary, the remaining assets and funds of theCorporation legally available for distribution shall be distributed ratablyamong the holders of the Common Stock and Class B Common Stock inproportion to the number of shares of such stock owned by each such holder.

 

(v)        No Pre-Emptiveor Preferential Rights.  Noholder of Common Stock or Class B Common Stock shall have a preemptive orpreferential right to acquire or subscribe for any shares or securities of anyclass, whether now or hereafter authorized, which may at any time be issued,sold or offered for sale by the Corporation. Common Stock is not convertible, redeemable or assessable, or entitledto the benefits of any sinking fund. Except as otherwise provided in this Certificate of Incorporation, Class BCommon Stock is not convertible, redeemable or assessable, or entitled to thebenefits of any sinking fund.

 

(vi)       Conversion of Class BCommon Stock.

 

A             Upon theearlier of (i) the receipt of the approvals of the change of controlapplications from each of the Florida Office of Financial Regulation, the OhioDivision of Financial Institutions and the Virginia Bureau of Financial Institutionsor (ii) a Skylight Disposition Event (as defined below), each and everyshare of outstanding Class B Common Stock held by the holders thereofshall automatically be converted into one share of Common Stock.  Any such conversion shall be automatic, withoutneed for any further action by the 

 

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holders of shares of Class B Common Stock andregardless of whether the certificates representing such shares are surrenderedto the Corporation or its transfer agent; provided, however*,* that the corporation shall not be obligated to issuecertificates evidencing the shares of Common Stock issuable upon suchconversion unless certificates evidencing such shares of Class B CommonStock so converted are surrendered to the corporation in accordance with theprocedures described in Section 4(c)(vi)C below.  As used herein, a “Skylight Disposition Event”shall be deemed to have occurred upon (1) the sale, transfer ordisposition by Skylight Holdings I, LLC of Class B Common Stock issued toit pursuant to the Agreement and Plan of Merger, dated as of June 2, 2008,by and among the corporation, Aurora Acquisition Sub, Inc., SkylightAcquisition I, Inc. and the other parties thereto, to a person or persons(other than an affiliate of JLL Partners Fund IV, L.P., a Delaware limitedpartnership, or JLL Partners Fund V, L.P., a Delaware limited partnership), asa result of which (a) no such person, together with such person’saffiliates, would own or control Class B Common Stock which represents onan as-converted basis 25% or more of the voting securities of the corporationand (b) Skylight Holdings I, LLC, JLL Partners Fund IV, L.P., JLL PartnersFund V, L.P. and their affiliates would cease to own or control Common Stockand Class B Common Stock which together represents on an as-convertedbasis 25% or more of the voting securities of the corporation,  or (2) the issuance by the Corporationof additional shares of Common Stock as a result of which Skylight Holdings I,LLC, JLL Partners Fund IV, L.P., JLL Partners Fund V, L.P. and their affiliateswould cease to own or control Common Stock and Class B Common Stock whichtogether represents on an as-converted basis 25% or more of the votingsecurities of the corporation.

 

B             Upon any sale,transfer or disposition by Skylight Holdings I, LLC of Class B CommonStock issued to it pursuant to the Agreement and Plan of Merger, dated as of June 2,2008, by and among the corporation, Aurora Acquisition Sub, Inc., SkylightAcquisition I, Inc. and the other parties thereto, to a person or persons(other than an affiliate of JLL Partners Fund IV, L.P., a Delaware limitedpartnership, or JLL Partners Fund V, L.P., a Delaware limited partnership),which does not result in an automatic conversion of all shares pursuant to Section 4(c)(vi)Aabove, each share of Class B Common Stock so sold, transferred or disposedshall automatically be converted into one share of Common Stock.  Such conversion shall be automatic, withoutneed for any further action by the holder of such shares of Class B CommonStock and regardless of whether the certificates representing such shares aresurrendered to the corporation or its transfer agent; provided, however*,* that the corporation shall not be obligated to issue certificatesevidencing the shares of Common Stock issuable upon such conversion unlesscertificates evidencing such shares of Class B Common Stock so convertedare surrendered to the corporation in accordance with the procedures describedin Section 4(c)(vi)C below.

 

C             Upon theautomatic conversion of any Class B Common Stock pursuant to Section 4(c)(vi)Aor Section 4(c)(vi)B above, the corporation shall 

 

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promptly send written notice thereof, by registered orcertified mail return receipt requested and postage prepaid, by hand deliveryor by overnight delivery, to each holder of record of Class B Common Stockwhose shares have been converted at his, her or its address then shown on therecords of the corporation, which notice shall state that certificatesevidencing shares of Class B Common Stock must be surrendered at theoffice of the corporation (or of its transfer agent for the Common Stock, ifapplicable) in the manner described in this Section 4(c)(vi)C.  Before any holder of Class B CommonStock shall be entitled to receive certificates representing the shares ofCommon Stock into which shares of Class B Common Stock are converted inaccordance with Section 4(c)(vi)A or Section 4(c)(vi)Babove, such holder shall surrender the certificate or certificates for suchshares of Class B Common Stock duly endorsed, at the office of thecorporation or of any transfer agent for the Class B Common Stock andshall give written notice to the corporation at such office of the name ornames in which such holder wishes the certificate or certificates for shares ofCommon Stock to be issued, if different from the name shown on the books andrecords of the corporation.  Saidconversion notice shall also contain such representations as may reasonably berequired by the corporation to the effect that the shares to be received uponconversion are not being acquired and will not be transferred in any way thatmight violate the then applicable securities laws.  The Corporation shall, as soon as practicablethereafter and in no event later than thirty (30) days after the delivery ofsaid certificates, issue and deliver at such office to such holder of Class BCommon Stock or to the nominee or nominees of such holder as provided in suchnotice, a certificate or certificates for the number of shares of Common Stockto which such holder shall be entitled as aforesaid.  The person or persons entitled to receive theshares of Common Stock issuable upon a conversion pursuant to Section 4(c)(vi)Aor Section 4(c)(vi)B above shall be treated for all purposes as therecord holder or holders of such shares of Common Stock as of the effectivedate of conversion specified in such section. All certificates issued upon the exercise or occurrence of theconversion shall contain a legend governing restrictions upon such sharesimposed by law or agreement of the holder or his or its predecessors.

 

D             Notwithstandinganything to the contrary contained herein, if the corporation shall in anymanner subdivide (by stock split, stock dividend or otherwise) or combine (byreverse stock split or otherwise) the outstanding shares of Common Stock or Class BCommon Stock, the outstanding shares of the other class of common stock shallbe proportionately subdivided or combined, as the case may be, and effectiveprovision shall be made by the Board of Directors of the corporation (whosedetermination with respect thereto will be final and binding) for theprotection of all conversion and exchange rights hereunder; provided, however,that the Board of Directors may determine, in lieu of the foregoing, to make anappropriate change to the number of shares issuable upon exchange orconversion.

 

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E             In case of anyreorganization, reclassification or change of outstanding shares of CommonStock or Class B Common Stock (other than a change in par value, or frompar to no par value), or in case of any consolidation of the corporation withone or more other corporations or a merger of the corporation with anothercorporation (other than a consolidation or merger which does not result in anyreclassification or change of outstanding shares of Common Stock or Class BCommon Stock), each holder of a share of Class B Common Stock shall havethe right at any time thereafter to convert such shares solely into the kindand amount of shares of stock and/or other securities and/or property(including cash) receivable upon such reorganization, reclassification, change,consolidation or merger by a holder of a share of Common Stock into which orfor which such share of Class B Common Stock might have been converted orexchanged immediately prior to such reclassification, change, consolidation ormerger.  Any such right to convert orexchange shares of Class B Common Stock shall generally also be subject tothe other terms and conditions as are otherwise specified in this Section 4(c)(vi)D.  In the event of such a reorganization,reclassification, change, consolidation or merger, effective provision shall bemade in the certificate of incorporation of the resulting or survivingcorporation or otherwise for the protection, as nearly as may reasonably beprovided, of the applicable rights to convert or exchange the shares of Class BCommon Stock to or for any such other shares of stock, other securities orproperty.  In case securities or propertyother than Common Stock shall be issuable or deliverable upon conversion orexchange as aforesaid, then all references in this Section 4(c)(vi)Dshall be deemed to apply, so far as appropriate and as nearly as may be, tosuch other securities or property.  Anydetermination by the Board of Directors of the corporation in regard to thematters set forth in this Section 4(c)(vi)D shall be final.

 

F              The corporationshall at all times reserve and keep available out of its authorized butunissued shares of Common Stock or its treasury shares solely for the purposeof issuance upon the conversion or exchange of the Class B Common Stock asprovided in this Section 4(c)(vi), such number of shares of CommonStock as may then be issuable upon the conversion or exchange of alloutstanding shares of Class B Common Stock.  Shares of Class B Common Stock that areconverted into or exchanged for shares of Common Stock may not be reissued.

 

**ARTICLE 5**

**BOARD OF DIRECTORS**

 

(a)           *General*.  The business and affairs of the Corporationshall be managed by or under the direction of the Board of Directors.  In addition to the authority and powersconferred upon the Board of Directors by the DGCL or by the other provisions ofthis Certificate of Incorporation, the Board of Directors is hereby authorizedand empowered to exercise all such powers and do all such acts and things asmay be exercised or done by the Corporation, subject to the provisions of theDGCL, this Certificate of Incorporation and the Bylaws of the Corporation.

 

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(b)           *Numberof Directors*.  The numberof directors of the Corporation that shall constitute the Board of Directorsshall be fixed from time to time exclusively by, and may be increased ordecreased from time to time exclusively by, the affirmative vote of a majorityof the Board of Directors, subject to such rights of holders of shares of anoutstanding series of Preferred Stock to elect one or more directors pursuantto any provisions contained in a Directors’ Resolution with respect to suchseries.

 

(c)           *ClassifiedBoard of Directors*. * *Effective upon the filing of thisCertificate of Incorporation with the Secretary of State of the State ofDelaware (such date hereinafter referred to as the “Trigger Date”), thedirectors, other than those who may be elected by the holders of any series ofPreferred Stock, shall be divided into three classes: Class I, Class IIand Class III. Such classes shall be as nearly equal in number ofdirectors as possible. Each such director shall serve for a term ending on thethird annual meeting of stockholders following the annual meeting ofstockholders at which that director was elected; *provided*,*however*, that the directors first designated as Class Idirectors shall serve for a term expiring at the annual meeting of stockholdersnext following the date of their designation as Class I directors, thedirectors first designated as Class II directors shall serve for a termexpiring at the second annual meeting of stockholders next following the dateof their designation as Class II directors and the directors firstdesignated as Class III directors shall serve for a term expiring at thethird annual meeting of stockholders next following the date of theirdesignation as Class III directors. Upon the Trigger Date, if thenpermitted by applicable law, the Board of Directors shall have the authority todesignate the members of the Board of Directors then in office as Class Idirectors, Class II directors and Class III directors, respectively.Each director shall hold office until the annual meeting of stockholders atwhich that director’s term expires and, the foregoing notwithstanding, shall serveuntil his successor shall have been duly elected and qualified or until hisearlier death, resignation, retirement, disqualification or removal.  At each annual election, the directors chosento succeed those whose terms then expired shall be of the same class as thedirectors they succeed, unless, by reason of any intervening changes in theauthorized number of directors, the Board of Directors shall have designatedone or more directorships whose term then expires as directorships of anotherclass in order to more nearly achieve equality of number of directors among theclasses.  In the event of any change inthe authorized number of directors, each director then continuing to serve assuch shall nevertheless continue as a director of the class of which he is amember until the expiration of his current term, or his prior death,resignation, retirement, disqualification or removal. The Board of Directorsshall specify the class to which a newly created directorship shall beallocated.

 

(d)           *WrittenBallots Not Required*.  Election ofdirectors need not be by written ballot unless the Bylaws of the Corporationshall so provide.

 

(e)           *Removalof Directors*.  A directorof the Corporation may be removed from office as a director with or withoutcause, by the affirmative vote of the holders of at least seventy-five percent(75%) of the voting power of the then issued and outstanding shares of capitalstock of the Corporation entitled to vote generally in the election ofdirectors, voting together as a single class.

 

Notwithstanding the foregoing, whenever holders of outstanding sharesof one or more series of Preferred Stock are entitled to elect directors of theCorporation pursuant to the 

 

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provisionsapplicable in the case of arrearages in the payment of dividends or otherdefaults contained in the Directors’ Resolution with respect to such series,any such director of the Corporation so elected may be removed in accordancewith the provisions of such Directors’ Resolution.

 

(f)            *Vacancieson Board of Directors*. Except as provided in any provisions contained in a Directors’Resolution with respect to a series of Preferred Stock, newly createddirectorships resulting from any increase in the authorized number of directorsand any vacancies on the Board of Directors resulting from death, resignation,removal or other cause may be filled by the affirmative vote of a majority ofthe remaining directors then in office, even if such remaining directorsconstitute less than a quorum of the Board of Directors, or, if there are nodirectors remaining, by the stockholders. Any director elected in accordance with the preceding sentence shallserve for a term ending on the next annual meeting of stockholders at which theclass to which such director has been elected is up for election and until suchdirector’s successor shall have been duly elected and qualified or until his orher earlier death, resignation or removal. No decrease in the number of directors constituting the Board ofDirectors shall shorten the term of any incumbent director.

 

**ARTICLE 6**

**BYLAWS**

 

(a)           *Boardof Directors’ Power*.  The Boardof Directors shall have the power to adopt, amend or repeal the Bylaws of theCorporation.  Any adoption, amendment orrepeal of the Bylaws of the Corporation by the Board of Directors shall requirethe approval of a majority of the Board of Directors.

 

(b)           *Stockholders’Power*.  The stockholders shall alsohave the power to adopt, amend or repeal the Bylaws of the Corporation at anymeeting before which such matter has been properly brought in accordance withthe Bylaws of the Corporation by the affirmative vote of the holders of amajority of the voting power of the then issued and outstanding shares of thecapital stock of the Corporation entitled to vote generally in the election ofdirectors, voting together as a single class.

 

(c)           *PriorActs*. * *NoBylaws hereafter adopted, or any amendments thereto, shall invalidate any prioract of the Board of Directors that was valid at the time it was taken.

 

**ARTICLE 7**

**STOCKHOLDER MEETINGS; STOCKHOLDER ACTION**

 

(a)           *Meetingsof Stockholders*.

 

(i)         General.  Meetings of stockholders may be held withinor without the State of Delaware, as the Bylaws of the Corporation mayprovide.  Advance notice of stockholdernominations for the election of directors and of business to be brought bystockholders before any meeting of the stockholders of the Corporation shall begiven in the manner provided in the Bylaws of the Corporation. The books of theCorporation may be kept (subject to any provision contained in the statues)outside the State of Delaware at such place or 

 

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places as may be designated from time to time by theBoard of Directors or in the Bylaws of the Corporation.

 

(ii)        SpecialMeetings.  Except asotherwise required by law, or as may be prescribed in any provisions containedin a Directors’ Resolution with respect to a series of Preferred Stock, specialmeetings of stockholders of the Corporation may be called only (i) by the Chairman of the Board ofDirectors of the Corporation, if there is one, (ii) by the Chief ExecutiveOfficer of the Corporation, if there is one or (iii) by the Boardof Directors, and no such special meeting may be called by any other person orpersons.  Business transacted at specialmeetings of stockholders shall be confined to the purpose or purposes stated inthe notice of meeting.

 

(b)           *StockholderAction*.  Any action required orpermitted to be taken by the stockholders of the Corporation must be effectedat an annual or special meeting of stockholders of the Corporation and may notbe effected by any consent in writing by such stockholders, and the power ofthe stockholders of the Corporation to consent in writing, without a meeting,to the taking of any action is specifically denied.  Notwithstanding anything in this Certificateof Incorporation or the Bylaws of the Corporation to the contrary, theaffirmative vote of the holders of at least eighty percent (80%) of the votingpower of the then issued and outstanding shares of capital stock of theCorporation entitled to vote generally in the election of directors, votingtogether as a single class, shall be required to alter, amend or adopt anyprovision inconsistent with, or to repeal, this Section 7(b).

 

**ARTICLE 8**

**LIABILITY OF DIRECTORS**

 

No director of the Corporation shall be personallyliable to the Corporation or any of its stockholders for monetary damages forbreach of fiduciary duty as a director to the fullest extent permitted by theDGCL as it now exists or as it may hereafter be amended.  Any repeal or modification of this Article 8by the stockholders of the Corporation shall be prospective only, and shall notadversely affect any limitation on the personal liability of a director of theCorporation existing at the time of such repeal or modification.

 

**ARTICLE 9**

**AMENDMENT OF CERTIFICATE OF INCORPORATION**

 

TheCorporation reserves the right to amend, alter, change or repeal any provisioncontained in this Certificate of Incorporation in the manner now or hereafterprescribed by law, and all rights and powers conferred herein on stockholders,directors and officers are subject to this reserved power; *providedthat*, notwithstanding the fact that a lesser percentage may bespecified by the DGCL, subject to any greater percentage provided in thisCertificate of Incorporation, the affirmative vote of the holders of record ofoutstanding shares representing at least seventy-five percent (75%) of thevoting power of the then issued and outstanding shares of capital stock of theCorporation entitled to vote generally in the election of directors, votingtogether as a single class, shall be required to amend, alter, change, repeal,or adopt any provision or provisions inconsistent with, Article 4, Article 5,Article 6, Article 7, Article 8 and this Article 9 of thisCertificate of Incorporation unless such amendment, alteration, change, 

 

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repealor adoption of any inconsistent provision or provisions is adopted orauthorized by the Board of Directors by the affirmative vote of at leastseventy-five percent (75%) of the Board of Directors.

 

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