**Exhibit 3(i)**

 

*THIS DOCUMENT CONSTITUTES AN INTEGRATED COPYOF THE REGISTRANT’S CERTIFICATE OF INCORPORATION AS AMENDED THROUGH THE DATE OFTHIS FILING.  THE DOCUMENTS SOINTEGRATED ARE ON FILE WITH THE DELAWARE SECRETARY OF STATE.*

 

RESTATED CERTIFICATE OF INCORPORATIONOFTHE IMMUNE RESPONSE CORPORATION

 

# ARTICLE I.

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The name of the corporation is The Immune Response Corporation.

 

# ARTICLE II.

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The address of the corporation’s registered office in the State ofDelaware is Corporation Trust Center, 1209 Orange Street in the City ofWilmington, County of New Castle, Delaware 19801.  The name of its registered agent at such address is TheCorporation Trust Company.

 

# ARTICLE III.

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The purpose of the corporation is to engage in any lawful act oractivity for which corporations may be organized under the General CorporationLaw of the State of Delaware.

 

# ARTICLE IV.

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## A.                                   Thetotal number of shares of all classes of capital stock which the corporationshall have authority to issue is One Hundred Eighty Million (180,000,000) ofwhich One Hundred Seventy Million (170,000,000) shares of the par value ofOne-Fourth of One Cent ($.0025) each shall be Common Stock (the “Common Stock”)and Ten Million (10,000,000) shares of the par value of One-Tenth of One Cent($.001) each shall be Preferred Stock (the “Preferred Stock”).

##  

The Preferred Stock may be issued in any number of series, asdetermined by the Board of Directors of this corporation (the “Board ofDirectors”).  Except as otherwiseprovided in this Restated Certificate of Incorporation, the Board of Directorsis expressly authorized to provide for the issue, in one or more series, of allor any of the shares of Preferred Stock and, in the resolution or resolutionsproviding for such issue, to establish for each such series the number of itsshares, the voting powers, full or limited, of the shares of such series, orthat such shares shall have no voting powers, and the designations, preferencesand relative,

 

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participating, optional orother special rights of the shares of such series, and the qualifications,limitations or restrictions thereof. The Board of Directors is also expressly authorized (unless forbidden inthe resolution or resolutions providing for such issue) to increase or decrease(but not below the number of shares of the series then outstanding) the numberof shares of any series subsequent to the issuance of shares of thatseries.  In case the number of shares ofany such series shall be so decreased, the shares constituting such decreaseshall resume the status that they had prior to the adoption of the resolutionoriginally fixing the number of shares of such series.

 

## B.                                     Thedesignation and amount of the initial series of Preferred Stock and the powers,preferences and relative, participating, optional and other special rights ofthe shares of such series, and the qualifications, limitations or restrictionsthereof are as follows:

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### 1.                                       Designationand Amount.  The shares of suchseries shall be designated as “Series E Participating Preferred Stock,” $0.001par value per share, and the number of shares constituting such series shall be20,000.  Such number of shares may beincreased or decreased by resolution of the Board of Directors; provided, thatno decrease shall reduce the number of shares of Series E ParticipatingPreferred Stock to a number less than that of the shares then outstanding plusthe number of shares issuable upon exercise of outstanding rights, options orwarrants or upon conversion of outstanding securities issued by the corporation.

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### 2.                                       Dividendsand Distributions.

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#### (A)                              Subjectto the prior and superior rights of the holders of any shares of any series ofPreferred Stock ranking prior and superior to the shares of Series EParticipating Preferred Stock with respect to dividends, the holders of sharesof Series E Participating Preferred Stock in preference to the holders ofshares of Common Stock, par value $.0025 per share, of the corporation and anyother junior stock, shall be entitled to receive, when, as and if declared bythe Board of Directors out of funds legally available for the purpose,quarterly dividends payable in cash on the first day of March, June, Septemberand December in each year (each such date being referred to herein as a“Quarterly Dividend Payment Date”), commencing on the first Quarterly DividendPayment Date after the first issuance of a share or fraction of a share ofSeries E Participating Preferred Stock in an amount per share (rounded tothe nearest cent) equal to the greater of (a) $100, or (b) subject tothe provision for adjustment hereinafter set forth, 1,000 times the aggregateper share amount of all cash dividends, and 1,000 times the aggregate per shareamount (payable in kind) of all non-cash dividends or other distributions otherthan a dividend payable in shares of Common Stock or a subdivision of theoutstanding shares of Common Stock (by reclassification or otherwise), declaredon the Common Stock, since the immediately preceding Quarterly Dividend PaymentDate, or, with respect to the first Quarterly Dividend Payment Date, since thefirst issuance of any share or fraction of a share of Series EParticipating Preferred Stock.  In theevent the corporation shall at any time after the close of business onFebruary 26, 1992 (the “Rights Declaration Date”) (i) declare anydividend on Common Stock payable in shares of Common Stock, (ii) subdividethe outstanding Common Stock, or (iii) combine the outstanding CommonStock into a smaller number of shares, by reclassification or otherwise, thenin each such case the amount to which holders of shares of Series EParticipating Preferred Stock were entitled immediately prior to such eventunder clause (b) of the preceding sentence shall be adjusted bymultiplying such amount by a

 

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fraction the numerator of whichis the number of shares of Common Stock outstanding immediately after suchevent and the denominator of which is the number of shares of Common Stock thatwere outstanding immediately prior to such event.

####  

#### (B)                                Thecorporation shall declare a dividend or distribution on the Series EParticipating Preferred Stock as provided in paragraph (A) aboveimmediately after it declares a dividend or distribution on the Common Stock(other than a dividend payable in shares of Common Stock); provided that, inthe event no dividend or distribution shall have been declared on the CommonStock during the period between any Quarterly Dividend Payment Date and thenext subsequent Quarterly Dividend Payment Date, a dividend of $100 per shareon the Series E Participating Preferred Stock shall nevertheless bepayable on such subsequent Quarterly Dividend Payment Date.

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#### (C)                                Dividendsshall begin to accrue and be cumulative on outstanding shares of Series EParticipating Preferred Stock from the Quarterly Dividend Payment Date nextpreceding the date of issue of such shares of Series E ParticipatingPreferred Stock unless the date of issue of such shares is prior to the recorddate for the first Quarterly Dividend Payment Date, in which case dividends onsuch shares shall begin to accrue from the date of issue of such shares, orunless the date of issue is a Quarterly Dividend Payment Date or is a dateafter the record date for the determination of holders of shares of Series EParticipating Preferred Stock entitled to receive a quarterly dividend andbefore such Quarterly Dividend Payment Date in either of which events suchdividends shall begin to accrue and be cumulative from such Quarterly DividendPayment Date.  Accrued but unpaiddividends shall not bear interest. Dividends paid on the shares of Series E Participating PreferredStock in an amount less than the total amount of such dividends at the timeaccrued and payable on such shares shall be allocated pro rata on ashare-by-share basis among all such shares at the time outstanding.  The Board of Directors may fix a record datefor the determination of holders of shares of Series E ParticipatingPreferred Stock entitled to receive payment of a dividend or distributiondeclared thereon, which record date shall be no more than 30 days prior tothe date fixed for the payment thereof.

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### 3.                                       VotingRights.  The holders of shares ofSeries E Participating Preferred Stock shall have the following votingrights:

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##### (A)                              Subject to the provisionfor adjustment hereinafter set forth, each share of Series E ParticipatingPreferred Stock shall entitle the holder thereof to 1,000 votes on all matterssubmitted to a vote of the stockholders of the corporation.  In the event the corporation shall at anytime after the Rights Declaration Date (i) declare any dividend on CommonStock payable in shares of Common Stock, (ii) subdivide the outstandingCommon Stock into a greater number of shares, or (iii) combine theoutstanding Common Stock into a smaller number of shares, by reclassificationor otherwise, then in each such case the number of votes per share to whichholders of shares of Series E Participating Preferred Stock were entitledimmediately prior to such event shall be adjusted by multiplying such number bya fraction the numerator of which is the number of shares of Common Stockoutstanding immediately after such event and the denominator of which is thenumber of shares of Common Stock outstanding immediately prior to such event.

 

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##### (B)                                Except as otherwiseprovided herein or by law, the holders of shares of Series E ParticipatingPreferred Stock and the holders of shares of Common Stock shall vote togetheras one class on all matters submitted to a vote of stockholders of thecorporation.

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##### (C)                                (i)                                     If at any timedividends on any Series E Participating Preferred Stock shall be inarrears in an amount equal to six quarterly dividends thereon, the occurrenceof such contingency shall mark the beginning of a period (herein called a“default period”) which shall extend until such time when all accrued andunpaid dividends for all previous quarterly dividend periods and for thecurrent quarterly dividend period on all shares of Series E ParticipatingPreferred Stock then outstanding shall have been declared and paid or set apartfor payment.  During each defaultperiod, all holders of Preferred Stock (including holders of the Series EParticipating Preferred Stock) with dividends in arrears in an amount equal tosix quarterly dividends thereon, voting as a class, irrespective of series,shall have the right to elect two Directors.

#####  

###### (ii)                                  During any defaultperiod, such voting right of the holders of Series E ParticipatingPreferred Stock may be exercised initially at a special meeting called pursuantto subparagraph (iii) of this Section 3(C) or at any annualmeeting of stockholders, and thereafter at annual meetings of stockholders,provided that neither such voting right nor the right of the holders of anyother series of Preferred Stock, if any, to increase, in certain cases, theauthorized number of Directors shall be exercised unless the holders of tenpercent (10%) in number of shares of Preferred Stock outstanding shall bepresent in person or by proxy.  Theabsence of a quorum of the holders of Common Stock shall not affect theexercise by the holders of Preferred Stock of such voting right.  At any meeting at which the holders ofPreferred Stock shall exercise such voting right initially during an existingdefault period, they shall have the right, voting as a class, to electDirectors to fill such vacancies, if any, in the Board of Directors as may thenexist up to two Directors or, if such right is exercised at an annual meeting,to elect two Directors.  If the numberwhich may be so elected at any special meeting does not amount to the requirednumber, the holders of the Preferred Stock shall have the right to make suchincrease in the number of Directors as shall be necessary to permit theelection by them of the required number. After the holders of the Preferred Stock shall have exercised theirright to elect Directors in any default period and during the continuance ofsuch period, the number of Directors shall not be increased or decreased exceptby vote of the holders of Preferred Stock as herein provided or pursuant to therights of any equity securities ranking senior to or pari passu with theSeries E Participating Preferred Stock.

######  

###### (iii)                               Unless the holders ofPreferred Stock shall, during an existing default period, have previouslyexercised their right to elect Directors, the Board of Directors may order, orany stockholder or stockholders owning in the aggregate not less than tenpercent (10%) of the total number of shares of Preferred Stock outstanding,irrespective of series, may request, the calling of a special meeting of theholders of Preferred Stock in accordance with Article X.  Notice of such meeting and of any annualmeeting at which holders of Preferred Stock are entitled to vote pursuant tothis paragraph (C)(iii)

 

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shall be givento each holder of record of Preferred Stock by mailing a copy of such notice tohim at his last address as the same appears on the books of thecorporation.  Such meeting shall becalled for a time not earlier than ten days and not later than 60 days aftersuch order or request or in default of the calling of such meeting within 60days after such order or request, such meeting may be called on similar noticeby any stockholder or stockholders owning in the aggregate not less than tenpercent (10%) of the total number of shares of Preferred Stockoutstanding.  Notwithstanding theprovisions of this paragraph (C)(iii), no such special meeting shall be calledduring the period within 60 days immediately preceding the date fixed forthe next annual meeting of the stockholders.

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###### (iv)                              In any default period,the holders of Common Stock, and other classes of stock of the corporation, ifapplicable, shall continue to be entitled to elect the whole number ofDirectors until the holders of Preferred Stock shall have exercised their rightto elect two Directors voting as a class, after the exercise of which right(x) the Directors so elected by the holders of Preferred Stock shallcontinue in office until their successors shall have been elected by suchholders or until the expiration of the default period, and (y) any vacancyin the Board of Directors may (except as provided in paragraph (C)(ii) of thisSection 3) be filled by vote of a majority of the remaining Directorstheretofore elected by the holders of the class of stock which elected theDirector whose office shall have become vacant.  References in this paragraph (C) to Directors elected by theholders of a particular class of stock shall include Directors elected by suchDirectors to fill vacancies as provided in clause (y) of the foregoingsentence.

######  

###### (v)                                 Immediately upon theexpiration of a default period, (x) the right of the holders of Preferred Stockas a class to elect Directors shall cease, (y) the term of any Directorselected by the holders of Preferred Stock as a class shall terminate, and(z) the number of Directors shall be such number as may be provided forin, or pursuant to, the Certificate of Incorporation or By-Laws irrespective ofany increase made pursuant to the provisions of paragraph (C)(ii) of thisSection 3 (such number being subject, however, to change thereafter in anymanner provided by law or in the Certificate of Incorporation or By-Laws).  Any vacancies in the Board of Directorseffected by the provisions of clauses (y) and (z) in the precedingsentence may be filled by a majority of the remaining Directors, even thoughless than a quorum.

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##### (D)                               Except as set forthherein, holders of Series E Participating Preferred Stock shall have nospecial voting rights and their consent shall not be required (except to theextent they are entitled to vote with holders of Common Stock as set forthherein) for taking any corporate action.

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### 4.                                       CertainRestrictions.

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#### (A)                              Wheneverquarterly dividends or other dividends or distributions payable on theSeries E Participating Preferred Stock as provided in Section 2 arein arrears, thereafter and until all accrued and unpaid dividends and distributions,whether or not declared, on shares of

 

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Series E ParticipatingPreferred Stock outstanding shall have been paid in full, the corporation shallnot

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###### (i)                                     declare or paydividends on, make any other distributions on, or redeem or purchase orotherwise acquire for consideration any shares of stock ranking junior (eitheras to dividends or upon liquidation, dissolution or winding up) to theSeries E Participating Preferred Stock;

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###### (ii)                                  declare or pay dividendson 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) withthe Series E Participating Preferred Stock except dividends paid ratablyon the Series E Participating Preferred Stock and all such parity stock onwhich dividends are payable or in arrears in proportion to the total amounts towhich the holders of all such shares are then entitled;

######  

###### (iii)                               redeem or purchase orotherwise acquire for consideration shares of any stock ranking on a parity(either as to dividends or upon liquidation, dissolution or winding up) withthe Series E Participating Preferred Stock provided that the corporationmay at any time redeem, purchase or otherwise acquire shares of any such paritystock in exchange for shares of any stock of the corporation ranking junior(either as to dividends or upon dissolution, liquidation or winding up) to theSeries E Participating Preferred Stock; or

######  

###### (iv)                              purchase or otherwiseacquire for consideration any shares of Series E Participating PreferredStock or any shares of stock ranking on a parity with the Series EParticipating Preferred Stock except in accordance with a purchase offer madein writing or by publication (as determined by the Board of Directors) to allholders of such shares upon such terms as the Board of Directors, afterconsideration of the respective annual dividend rates and other relative rightsand preferences of the respective series and classes, shall determine in good faithwill result in fair and equitable treatment among the respective series orclasses.

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

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### 5.                                       ReacquiredShares.  Any shares of Series EParticipating Preferred Stock purchased or otherwise acquired by the corporationin any manner whatsoever shall be retired and cancelled promptly after theacquisition thereof.  All such sharesshall upon their cancellation become authorized but unissued shares ofPreferred Stock and may be reissued as part of a new series of Preferred Stockto be created by resolution or resolutions of the Board of Directors, subjectto the conditions and restrictions on issuance set forth herein.

 

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### 6.                                       Liquidation,Dissolution or Winding Up.

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#### (A)                              Uponany liquidation (voluntary or otherwise), dissolution or winding up of thecorporation, no distribution shall be made to the holders of shares of stockranking junior (either as to dividends or upon liquidation, dissolution orwinding up) to the Series E Participating Preferred Stock unless, priorthereto, the holders of shares of Series E Participating Preferred Stockshall have received per share, the greater of 1,000 times $1.00 or 1,000 timesthe payment made per share of Common Stock, plus an amount equal to accrued andunpaid dividends and distributions thereon, whether or not declared, to thedate of such payment (the “Series E Liquidation Preference”).  Following the payment of the full amount ofthe Series E Liquidation Preference, no additional distributions shall bemade to the holders of shares of Series E Participating Preferred Stockunless, prior thereto, the holders of shares of Common Stock shall havereceived an amount per share (the “Common Adjustment”) equal to the quotientobtained by dividing (i) the Series E Liquidation Preference by(ii) 1,000 (as appropriately adjusted as set forth in subparagraph(C) below to reflect such events as stock splits, stock dividends andrecapitalization with respect to the Common Stock) (such number inclause (ii), the “Adjustment Number”). Following the payment of the full amount of the Series ELiquidation Preference and the Common Adjustment in respect of all outstandingshares of Series E Participating Preferred Stock and Common Stock, respectively,holders of Series E Participating Preferred Stock and holders of shares ofCommon Stock shall receive their ratable and proportionate share of theremaining assets to be distributed in the ratio of the Adjustment Number to 1with respect to such Preferred Stock and Common Stock, on a per share basis,respectively.

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#### (B)                                Inthe event there are not sufficient assets available to permit payment in fullof the Series E Liquidation Preference and the liquidation preferences ofall other series of Preferred Stock, if any, which rank on a parity with theSeries E Participating Preferred Stock then such remaining assets shall bedistributed ratably to the holders of such parity shares in proportion to theirrespective liquidation preferences.  Inthe event there are not sufficient assets available to permit payment in fullof the Common Adjustment, then such remaining assets shall be distributedratably to the holders of Common Stock.

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#### (C)                                Inthe event the corporation shall at any time after the Rights Declaration Date(i) declare any dividend on Common Stock payable in shares of CommonStock, (ii) subdivide the outstanding Common Stock, or (iii) combinethe outstanding Common Stock into a smaller number of shares, byreclassification or otherwise, then in each such case the Adjustment Number ineffect immediately prior to such event shall be adjusted by multiplying suchAdjustment Number by a fraction the numerator of which is the number of sharesof Common Stock outstanding immediately after such event and the denominator ofwhich is the number of shares of Common Stock that were outstanding immediatelyprior to such event.

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### 7.                                       Consolidation,Merger, etc.  In case thecorporation shall enter into any consolidation, merger, combination or othertransaction in which the shares of Common Stock are exchanged for or changedinto other stock or securities, cash and/or any other property, then in anysuch case the shares of Series E Participating Preferred Stock shall atthe same time be similarly exchanged or changed in an amount per share (subjectto the provision for adjustment hereinafter set forth) equal to 1,000 times theaggregate amount of stock, securities, cash and/or

 

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any other property (payable inkind), as the case may be, into which or for which each share of Common Stockis changed or exchanged.  In the eventthe corporation shall at any time after the Rights Declaration Date(i) declare any dividend on Common Stock payable in shares of CommonStock, (ii) subdivide the outstanding Common Stock, or (iii) combinethe outstanding Common Stock into a smaller number of shares, then in each suchcase the amount set forth in the preceding sentence with respect to theexchange or change of shares of Series E Participating Preferred Stockshall be adjusted by multiplying such amount by a fraction the numerator ofwhich is the number of shares of Common Stock outstanding immediately aftersuch event and the denominator of which is the number of shares of Common Stockthat are outstanding immediately prior to such event.

 

### 8.                                       Redemption.  The shares of Series E ParticipatingPreferred Stock shall not be redeemable.

 

### 9.                                       Ranking.  The Series E Participating PreferredStock shall rank junior to all other series of the corporation’s PreferredStock as to the payment of dividends and the distribution of assets, unless theterms of any such series shall provide otherwise.

 

### 10.                                 Amendment.  The Certificate of Incorporation and theBy-Laws of the corporation shall not be further amended in any manner whichwould materially alter or change the powers, preferences or special rights ofthe Series E Participating Preferred Stock so as to affect them adverselywithout the affirmative vote of the holders of at least 66-2/3% of the outstandingshares of Series E Participating Preferred Stock voting separately as aclass.

 

### 11.                                 FractionalShares.  Series E ParticipatingPreferred Stock may be issued in fractions of a share which shall entitle theholder, in proportion to such holder’s fractional shares, to exercise votingrights, receive dividends, participate in distributions and to have the benefitof all other rights of holders of Series E Participating Preferred Stock.

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# ARTICLE V.

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Election of Directors need not be by written ballot.

 

# ARTICLE VI.

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The Board of Directors is expressly empowered to adopt, amend or repealBy-Laws of the corporation; provided, however, that any adoption, amendment orrepeal of By-Laws of the corporation by the Board of Directors shall requirethe approval of at least sixty-six and two-thirds percent (66 2/3%) of thetotal number of authorized Directors (whether or not there exist any vacanciesin previously authorized directorships at the time any resolution providing foradoption, amendment or repeal is presented to the Board of Directors).  The stockholders shall also have power toadopt, amend or repeal By-Laws of the corporation, provided, however, that inaddition to any vote of the holders of any class or series of stock of thecorporation required by law or by this Restated Certificate of Incorporationthe affirmative vote of the holders of at least sixty-six and two-thirdspercent (66 2/3%) of the voting power of

 

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all of the then outstandingshares of the stock of the corporation entitled to vote generally in theelection of Directors, voting together as a single class, shall be required forsuch adoption, amendment or repeal by the stockholders of any provisions of theBy-Laws of the corporation.

 

# ARTICLE VII.

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Any person who was or is a party or is threatened to be made a party toany threatened, pending or completed action, suit or proceeding, whether civil,criminal, administrative or investigative (whether or not by or in the right ofthe corporation) by reason of the fact that he is or was a Director, officer,incorporator, employee or agent of the corporation, or is or was serving at therequest of the corporation as a Director, officer, incorporator, employee,partner, trustee or agent of another corporation, partnership, joint venture,trust or other enterprise (including an employee benefit plan), shall beentitled to be indemnified by the corporation to the full extent then permittedby law against expenses (including attorneys’ fees), judgments, fines(including excise taxes assessed on a person with respect to an employeebenefit plan) and amounts paid in settlement incurred by him in connection withsuch action, suit or proceeding.  Suchright of indemnification shall inure whether or not the claim asserted is basedon matters which antedate the adoption of this Article VII.  Such right of indemnification shall continueas to a person who has ceased to be a Director, officer, incorporator,employee, partner, trustee or agent and shall inure to the benefit of the heirsand personal representatives of such a person. The indemnification provided by this Article VII shall not bedeemed exclusive of any other rights which may be provided now or in the futureunder any provision currently in effect or hereafter adopted by the By-Laws, byany agreement, by vote of stockholders, by resolution of disinterestedDirectors, by provision of law or otherwise.

 

# ARTICLE VIII.

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No Director of the corporation shall be liable to the corporation orany of its stockholders for monetary damages for breach of fiduciary duty as aDirector, except for liability (i) for any breach of the Director’s dutyof loyalty to the corporation or its stockholders; (ii) for acts oromissions not in good faith or which involve intentional misconduct or aknowing violation of law; (iii) under section 174 of the DelawareGeneral Corporation Law; or (iv) for any transaction from which theDirector derived an improper personal benefit.

 

# ARTICLE IX.

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Whenever a compromise or arrangement is proposed between thecorporation and its creditors or any class of them and/or between thecorporation and its stockholders or any class of them, any court of equitablejurisdiction within the State of Delaware may, on the application in a summaryway of the corporation or of any creditor or stockholder thereof or on theapplication of any receiver or receivers appointed for the corporation underthe provisions of section 291 of Title 8 of the Delaware Code or onthe application of trustees in dissolution or

 

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of any receiver or receiversappointed for the corporation under the provisions of section 279 ofTitle 8 of the Delaware Code order a meeting of the creditors or class ofcreditors, and/or of the stockholders or class of stockholders of thecorporation, as the case may be, to be summoned in such manner as the saidcourt directs.  If a majority in numberrepresenting three-fourths in value of the creditors or class of creditors,and/or of the stockholders or class of stockholders of the corporation, as thecase may be, agree to any compromise or arrangement and to any reorganizationof the corporation as consequence of such compromise or arrangement, the saidcompromise or arrangement and the said reorganization shall if sanctioned bythe court to which the said application has been made, be binding on all thecreditors or class of creditors, and/or on all the stockholders or class ofstockholders, of the corporation, as the case may be, and also on the corporation.

 

# ARTICLE X.

 

No action required or permitted to be taken at any annual or specialmeeting of the stockholders may be taken without a meeting and the power ofstockholders to consent in writing, without a meeting, to the taking of anyaction is specifically denied.  Specialmeetings of the stockholders of the corporation may be called only by theChairman of the Board or the Chief Executive Officer of the corporation or by aresolution adopted by the affirmative vote of a majority of the Board of Directors.

 

# ARTICLE XI.

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The Board of Directors shall be divided into three classes, designatedClass I, Class II and Class III, as nearly equal in number aspossible, and the term of office of Directors of one class shall expire at eachannual meeting of stockholders, and in all cases as to each Director until suchDirector’s successor shall be elected and shall qualify or until suchDirector’s earlier resignation, removal from office, death or incapacity.  Additional directorships resulting from anincrease in number of Directors shall be apportioned among the classes asequally as possible.  The initial termof office of Directors of Class I shall expire at the annual meeting ofstockholders in 1993; that of Class II shall expire at the annual meetingin 1994; and that of Class III shall expire at the annual meeting in 1995;and in all cases as to each Director until such Director’s successor shall beelected and shall qualify or until such Director’s earlier resignation, removalfrom office, death or incapacity.  Ateach annual meeting of stockholders the number of Directors equal to the numberof Directors of the class whose term expires at the time of such meeting (or,if less, the number of Directors properly nominated and qualified for election)shall be elected to hold office until the third succeeding annual meeting ofstockholders after their election.

 

# ARTICLE XII.

#  

Notwithstanding any other provision of this Restated Certificate ofIncorporation, the affirmative vote of the holders of at least sixty-six andtwo-thirds percent (66-2/3%) of the voting power of all of the then outstandingshares of the stock of the

 

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corporation entitled to votegenerally in the election of Directors, voting together as a single class,shall be required to amend in any respect or repeal this Article XII, orArticles VI, VII, VIII, X and XI.

 

ARTICLE XIII.

 

Each four (4)shares of the Common Stock, par value $0.0025 per share, of the Corporationissued and outstanding or held in treasury as of 5:00 p.m. Eastern StandardTime on October 8, 2002 (the “Effective Time”) shall be reclassified as andchanged into one (1) share of Common Stock, par value $0.0025 per share, of theCorporation, without any action by the holders thereof. Each stockholder who,immediately prior to the Effective Time, owns a number of shares of CommonStock which is not evenly divisible by four shall, with respect to suchfractional interest, be entitled to receive from the Corporation cash in an amountequal to such fractional interest multiplied by the closing price of the CommonStock as last reported on The Nasdaq SmallCap Market immediately prior to theEffective Time.

 

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