Exhibit 3.1
**RESTATED**
**CERTIFICATE OF INCORPORATION**
***of***
**MERCK & CO., INC.**
*October 1, 2004*

 

 

**RESTATED**
**CERTIFICATE OF INCORPORATION**
**of**
**MERCK & CO., INC.**
     Merck & Co., Inc., a corporation organized and existing under the laws ofthe State of New Jersey, restates and integrates its Restated Certificate ofIncorporation, as heretofore amended, to read in full as herein set forth:
**ARTICLE I: NAME**
     The name of the Corporation shall be Merck & Co., Inc.
**ARTICLE II: REGISTERED OFFICE AND AGENT**
     The address of the Corporation’s registered office shall be 820 BearTavern Road, City of West Trenton, County of Mercer, State of New Jersey, andthe name of its registered agent thereat shall be The Corporation TrustCompany.
**ARTICLE III: OBJECTS AND PURPOSES**
     The objects and purposes of the Corporation shall be:
          To carry on the business of exercising, performing, developing,manufacturing, producing, obtaining, promoting, selling and distributingrights, services, goods, wares, and merchandise of all kinds, including butnot by way of limitation, those in the chemical, mineral, pharmaceutical,biological, medicinal, agricultural, mechanical and electrical fields;
          To carry on such business alone, in, with or as agent for otherindividuals, partnerships, joint ventures, corporations, syndicates or otherforms of enterprise; and
          To borrow or lend money and to make guarantees insofar as such powersmay now or hereafter be lawfully exercised by a corporation subject to Title14A of the New Jersey statutes.
     The enumeration herein of the objects and purposes of the Corporationshall be construed as powers as well as objects and purposes and shall not bedeemed to exclude by inference any powers, objects or purposes which anycorporation subject to Title 14A of the New Jersey statutes may now orhereafter be empowered to exercise.
**ARTICLE IV: CAPITAL STOCK**
     The amount of the total authorized capital stock of the Corporation shallbe 5,410,000,000 shares, consisting of 5,400,000,000 shares of Common Stock,par value $.01 per share, and 10,000,000 shares of Preferred Stock, without parvalue, issuable in one or more series.
     The Board of Directors may from time to time offer for subscription orotherwise issue or sell any or all of the unissued stock of any class, or anyshares of stock of any class which may be held in the treasury of theCorporation, to such persons, firms or corporations and for such consideration(so far as may be permitted by the laws of the State of New Jersey) as it shallfrom time to time in its absolute discretion determine. No
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holder of capitalstock shall have any pre-emptive right as such holder to subscribe for,purchase or receive any part of any new or additional issue of stock of anyclass, including unissued and treasury stock, or obligations or othersecurities convertible into or exchangeable for stock of any class, or warrantsor other instruments evidencingrights or options to subscribe for, purchase or receive any stock of anyclass, whether now or hereafter authorized and whether issued for cash or otherconsideration or by way of dividend.
     The preferences, qualifications, limitations, voting rights andrestrictions with respect to the capital stock of the Corporation shall be asfollows (headings are for convenience only and are not to be taken as aids tointerpretation):
**(A) Preferred Stock**
     1. The Board of Directors of the Corporation is hereby expressly grantedauthority, subject to the provisions of this Restated Certificate ofIncorporation, to authorize in accordance with New Jersey law from time to timethe issue of one of more series of Preferred Stock and with respect to any suchseries to fix the numbers, designations, rights, preferences and limitations ofsuch series, including, but without limiting the generality of the foregoing,series of Preferred Stock:
          (a) entitling the holders thereof to cumulative, non-cumulative orpartial cumulative dividends, or to no dividends;
          (b) entitling the holders thereof to receive dividends payable on aparity with, or in preference to, the dividends payable on any other class orseries of capital stock of the Corporation;
          (c) entitling the holders thereof to preferential rights upon theliquidation of, or upon any distribution of the assets of, the Corporation;
          (d) convertible, at the option of the holder or of the Corporation orboth, into shares of any other class or classes of capital stock of theCorporation or of any series of the same or any other class or classes;
          (e) redeemable, in whole or in part, at the option of the Corporation,in cash, bonds or other property, at such price or prices, within such periodor periods, and under such conditions as the Board of Directors shall soprovide, including provision for the creation of a sinking fund for theredemption thereof; and
          (f) lacking voting rights or having limited voting rights or enjoyingspecial or multiple voting rights; provided, however, that no Preferred Stockthat is convertible into shares of Common Stock shall have voting rightsentitling a holder of a share of Preferred Stock to a greater number of votesthan those applicable to the number of Common Shares into which such share ofPreferred Stock is convertible, at the initial conversion rate set for suchPreferred Stock at the time of issuance thereof.
The Board of Directors may change the designation, rights, preferences,limitations, description and terms of, and number of shares in, any series asto which no shares have theretofore been issued.
     All shares of any one series shall be identical in all respects with allthe other shares of such series, except that shares of any one series issued atdifferent times may differ as to the dates from which dividends thereon shallbe cumulative.
     2. Shares of any series of Preferred Stock which have been redeemed(whether through the operation of a sinking fund or otherwise) or purchased bythe Corporation, or which, if convertible, have been converted into shares ofthe Corporation of any other class or classes, shall have the status ofauthorized and unissued shares of Preferred Stock which are not classified intoany series.
**(B) Common Stock**
     Subject to the preferences, qualifications, limitations, voting rights andrestrictions with respect to each class of the capital stock of the Corporationhaving any preference or priority over the Common Stock, the holders of theCommon Stock shall have and possess all rights appertaining to capital stock ofthe Corporation.
     At all elections of directors, each holder of Common Stock entitled tovote thereat shall be entitled to as many votes as shall equal the number ofhis shares of Common Stock multiplied by the number of directors to
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be electedby vote of stockholders without regard to class, and he may cast all of suchvotes for a single director or may distribute them among the number ofdirectors to be voted for or any two or more of them as he shall see fit. Atall times each holder of Common Stock of the Corporation who at any timepossesses voting power for anypurpose other than for the election of directors shall be entitled to onevote for each share of such stock standing in his name on the books of theCorporation.
     Subject to any limitations or restrictions set forth herein with respectto any class of stock other than the Common Stock, any action which, at anymeeting of stockholders, requires the vote, assent or consent of two-thirds ininterest of all the stockholders, or of two-thirds in interest of each class ofstockholders, having voting powers, or which requires such assent or consent inwriting to be filed, may be taken upon the assent of and the assent given andfiled by, as the case may be, two-thirds in interest of the stockholderspresent and voting at such meeting in person or by proxy, but where assent byclasses is required such assent shall be given by two-thirds in interest ofeach class so present and voting.
     Optional rights to purchase shares of Common Stock may be granted, on suchterms, at such price, in such manner and at such time or times as may beexpressed in a resolution or resolutions adopted by the Board of Directors, andwarrants or other evidence of such optional rights may be issued.
     The Corporation shall not be required to issue any fraction of a share ofCommon Stock of the Corporation.
**ARTICLE V: BY-LAWS**
     The Board of Directors shall have power to make, alter and repeal By-Laws;but By-Laws made by the directors may be altered or repealed by thestockholders. Notwithstanding anything contained in this Restated Certificateof Incorporation or the By-Laws of the Corporation to the contrary (andnotwithstanding that a lesser percentage may be specified by law or theBy-Laws), Article II of the By-Laws shall not be altered, amended or repealedand no provision inconsistent therewith shall be adopted without theaffirmative vote of a majority of the entire Board of Directors or of theholders of at least 80% of the combined voting power of the then outstandingshares of stock of the Corporation entitled to vote generally in the electionof directors, voting together as a single class. Notwithstanding anythingcontained in this Restated Certificate of Incorporation to the contrary, theaffirmative vote of the holders of at least 80% of the combined voting power ofthe then outstanding shares of stock of the Corporation entitled to votegenerally in the election of directors, voting together as a single class,shall be required to alter, amend, adopt any provision inconsistent with orrepeal this Article V.
**ARTICLE VI: DIRECTORS**
     The number of directors of the Corporation shall be such number, not lessthan three, as may, from time to time, be determined in accordance with theBy-Laws. The By-Laws shall prescribe the manner in which the number ofdirectors necessary to constitute a quorum of the Board of Directors shall bedetermined, which number may be less than a majority of the whole Board ofDirectors. The By-Laws shall also prescribe the manner in which the retirementage of and other restrictions and qualifications for directors of theCorporation shall be determined. Advance notice of nomination by a stockholderfor the election of directors shall be made in the manner provided in theBy-Laws.
     At the 2004 annual meeting of stockholders, the successors of thedirectors whose terms expire at that meeting shall be elected for a termexpiring at the 2005 annual meeting of stockholders; at the 2005 annual meetingof stockholders, the successors of the directors whose terms expire at thatmeeting shall be elected for a term expiring at the 2006 annual meeting ofstockholders; and at each annual meeting of stockholders thereafter, thedirectors shall be elected for terms expiring at the next annual meeting ofstockholders. Any vacancies in the Board of Directors, by reason of anincrease in the number of directors or otherwise, shall be filled solely by theBoard of Directors, by majority vote of the directors then in office, thoughless than a
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quorum, but any such director so elected shall hold office onlyuntil the next succeeding annual meeting of stockholders. At such annualmeeting, such director or a successor to such director shall be elected andqualified. No decrease in the number of directors shall shorten the term ofany incumbent director.
     Any director may be removed from office as a director but only for causeby the affirmative vote of the holders of 80% of the combined voting power ofthe then outstanding shares of stock of the Corporation entitled to votegenerally in the election of directors, voting together as a single class.
     The Board of Directors, by vote of a majority of the whole Board, mayappoint from the directors an executive committee and such other committees asthey may deem judicious; and to such extent as shall be provided in theresolution of the Board or in the By-Laws, may delegate to such committees allor any of the authority of the Board of Directors which may be lawfullydelegated, and such committees shall have and thereupon may exercise all or anyof the authority so delegated to them. The Board of Directors of theCorporation or the By-Laws may provide the number of members necessary toconstitute a quorum of any committee and the number of affirmative votesnecessary for action by any committee.
     Any officer and any employee elected or appointed by the Board ofDirectors may be removed (except from the office of director) at any time by avote of a majority of the whole Board of Directors. Any other employee of theCorporation may be removed at any time by vote of the Board of Directors or byany committee or officer or employee upon whom such power of removal may beconferred by the By-Laws or by vote of the Board of Directors.
     The Board of Directors shall from time to time determine whether and towhat extent and at what times and places and under what conditions andregulations the accounts, books and records of the Corporation or any of themshall be open to the inspection of the stockholders; and no stockholder shallhave any right of inspecting any account or book or document or record of theCorporation except as conferred by statute or authorized by the Board ofDirectors or by a resolution of the stockholders.
     No contract or other transaction of the Corporation shall be affected bythe fact that any of the directors of the Corporation are in any way interestedin or connected with any other party to such contract or transaction, or arethemselves parties to such contract or transaction, provided that at themeeting of the Board of Directors or of the committee thereof authorizing orconfirming such contract or transaction there shall be present a quorum ofdirectors not so interested or connected, and such contract or transactionshall be approved by a majority of such quorum, which majority shall consist ofdirectors not so interested or connected.
     Notwithstanding the foregoing, whenever the holders of any one or moreseries of Preferred Stock issued by the Corporation, pursuant to Article IVhereof, shall have the right, voting separately as a class or by series, toelect directors at an annual or special meeting of stockholders, the election,term of office, filling of vacancies and other features of such directorshipsshall be governed by the terms of the series of Preferred Stock applicablethereto, and such directors so elected shall not be divided into classespursuant to this Article VI unless expressly provided by the terms of theapplicable series.
     Notwithstanding anything contained in this Restated Certificate ofIncorporation to the contrary, the affirmative vote of the holders of at least80% of the combined voting power of the then outstanding shares of the stock ofthe Corporation entitled to vote generally in the election of directors, votingtogether as a single class, shall be required to alter, amend, adopt anyprovision inconsistent with or repeal this Article VI.
**ARTICLE VII: DURATION**
     The duration of the Corporation shall be perpetual.
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**ARTICLE VIII: AMENDMENTS**
     The Corporation reserves the right to amend, alter, change or repeal anyof the provisions contained in this Restated Certificate of Incorporation inthe manner now or hereafter prescribed by law, and all rights conferred onofficers, directors and/or stockholders herein are granted subject to thisreservation.
**ARTICLE IX: STOCKHOLDER ACTION**
     Any action required or permitted to be taken by the stockholders of theCorporation must be effected at a duly called annual or special meeting of suchstockholders and may not be effected by any consent in writing by suchstockholders.
     Notwithstanding anything contained in this Restated Certificate ofIncorporation to the contrary, the affirmative vote of the holders of at least80% of the combined voting power of the then outstanding shares of stock of thecorporation entitled to vote generally in the election of directors, votingtogether as a single class, shall be required to alter, amend, adopt anyprovision inconsistent with or repeal this Article IX.
**ARTICLE X: CERTAIN BUSINESS COMBINATIONS**
     (A) In addition to any affirmative vote required by law or this RestatedCertificate of Incorporation, and except as otherwise expressly provided inparagraph (B) of this Article X,
          1. any merger or consolidation of the Corporation or any Subsidiary (ashereinafter defined) with (a) an Interested Stockholder (as hereinafterdefined) or (b) any other corporation (whether or not itself an InterestedStockholder) which is, or after such merger or consolidation would be, anAffiliate or Associate (as such terms are hereinafter defined) of anInterested Stockholder, or
          2. any sale, lease, exchange, mortgage, pledge, grant of a securityinterest, transfer or other disposition (in one transaction or a series oftransactions) to or with (a) an Interested Stockholder or (b) any otherperson (whether or not itself an Interested Stockholder) which is, or aftersuch sale, lease, exchange, mortgage, pledge, grant of a security interest,transfer or other disposition would be, an Affiliate or Associate of anInterested Stockholder, directly or indirectly, of assets of the Corporation(including, without limitation, any voting securities of a Subsidiary) or anySubsidiary, or both, having an aggregate Fair Market Value (as hereinafterdefined) of $50,000,000 or more, or
          3. the issuance or transfer by the Corporation or any Subsidiary (inone transaction or a series of transactions) of any securities of theCorporation or any Subsidiary, or both, to (a) an Interested Stockholder or(b) any other person (whether or not itself an Interested Stockholder) whichis, or after such issuance or transfer would be, an Affiliate or Associate ofan Interested Stockholder in exchange for cash, securities or other property(or a combination thereof) having an aggregate Fair Market Value of$50,000,000 or more, other than the issuance of securities upon theconversion of convertible securities of the Corporation or any Subsidiarywhich were not acquired by such Interested Stockholder (or such Affiliate orAssociate) from the Corporation or a Subsidiary, or
          4. the adoption of any plan or proposal for the liquidation ordissolution of the Corporation proposed by or on behalf of an InterestedStockholder or any Affiliate or Associate of an Interested Stockholder, or
          5. any reclassification of securities (including any reverse stocksplit), or recapitalization of the Corporation, or any merger orconsolidation of the Corporation with any of its Subsidiaries or any othertransaction (whether or not with or into or otherwise involving an InterestedStockholder) which has the effect, directly or indirectly, of increasing theproportionate share of the outstanding shares of any class of equity orconvertible securities of the Corporation or any Subsidiary directly orindirectly beneficially owned by (a) an Interested Stockholder or (b) anyother person (whether or not itself an Interested Stockholder) which is, orafter such reclassification, recapitalization, merger or consolidation orother transaction would be, an Affiliate or Associate of an InterestedStockholder, shall not be consummated unless such consummation shall havebeen approved by the affirmative vote of the holders of at least 80%
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of thecombined voting power of the then outstanding shares of Voting Stock (ashereinafter defined), voting together as a single class. Such affirmativevote shall be required notwithstanding the fact that no vote may be required,or that a lesser percentage may be specified, by law, in this RestatedCertificate of Incorporation or in any agreement with any national securitiesexchange or otherwise.
     (B) The provisions of paragraph (A) of this Article X shall not beapplicable to any particular Business Combination (as hereinafter defined) andsuch Business Combination shall require only such affirmative vote as isrequired by law and any other provision of this Restated Certificate ofIncorporation, if the Business Combination shall have been approved by amajority of the Continuing Directors (as hereinafter defined) or all of thefollowing conditions shall have been met:
          1. The transaction constituting the Business Combination shall providefor a consideration to be received by all holders of Common Stock in exchangefor all their shares of Common Stock, and the aggregate amount of the cashand the Fair Market Value as of the date of the consummation of the BusinessCombination of consideration other than cash to be received per share byholders of Common Stock in such Business Combination shall be at least equalto the higher of the following:
          (a) (if applicable) the highest per-share price (including anybrokerage commissions, transfer taxes and soliciting dealers’ fees) paidin order to acquire any shares of Common Stock beneficially owned by anInterested Stockholder (i) within the two-year period immediately priorto the Announcement Date (as hereinafter defined), (ii) within the two-year period immediately prior to the Determination Date (as hereinafterdefined) or (iii) in the transaction in which it became an InterestedStockholder, whichever is highest; or
          (b) the Fair Market Value per share of Common Stock on theAnnouncement Date or on the Determination Date, whichever is higher;
          2. If the transaction constituting the Business Combination shallprovide for a consideration to be received by holders of any class or seriesof outstanding Voting Stock other than Common Stock, the aggregate amount ofthe cash and the Fair Market Value as of the date of the consummation of theBusiness Combination of consideration other than cash to be received pershare by holders of shares of such class or series of Voting Stock shall beat least equal to the highest of the following (it being intended that therequirements of this subparagraph 2 shall be required to be met with respectto every class and series of outstanding Voting Stock, whether or not anInterested Stockholder has previously acquired any shares of a particularclass of Voting Stock):
          (a) (if applicable) the highest per-share price (including anybrokerage commissions, transfer taxes and soliciting dealers’ fees) paidin order to acquire any shares of such class or series of Voting Stockbeneficially owned by an Interested Stockholder (i) within the two-yearperiod immediately prior to the Announcement Date, (ii) within thetwo-year period immediately prior to the Determination Date or (iii) inthe transaction in which it became an Interested Stockholder, whicheveris highest; or
          (b) the Fair Market Value per share of such class or series ofVoting Stock on the Announcement Date or the Determination Date,whichever is higher; or
          (c) (if applicable) the highest preferential amount per share towhich the holders of shares of such class or series of Voting Stock areentitled in the event of any voluntary or involuntary liquidation,dissolution or winding up of the Corporation;
          3. The consideration to be received by holders of a particular class orseries of outstanding Voting Stock (including Common Stock) shall be in cashor in the same form as was previously paid in order to acquire shares of suchclass or series of Voting Stock which are beneficially owned by an InterestedStockholder and, if an Interested Stockholder beneficially owns shares of anyclass or series of Voting Stock which were acquired with varying forms ofconsideration, the form of consideration for such class or series of VotingStock shall be either cash or the form used to acquire the largest number ofshares of such class or series of Voting Stock beneficially owned by it. Theprice determined in accordance with subparagraphs 1 and 2 of this paragraphshall be subject to appropriate adjustment in the event of anyrecapitalization, stock dividend, stock split, combination of shares orsimilar event;
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          4. After such Interested Stockholder has become an InterestedStockholder and prior to the consummation of such Business Combination:
          (a) except as approved by a majority of the Continuing Directors,there shall have been no failure to declare and pay at the regular datetherefor the full amount of any dividends (whether or not cumulative)payable on any outstanding Preferred Stock;
          (b) there shall have been (i) no reduction in the annual rate ofdividends paid on the Common Stock (except as necessary to reflect anysubdivision of the Common Stock) other than as approved by a majority ofthe Continuing Directors and (ii) an increase in such annual rate ofdividends as necessary to prevent any such reduction in the event of anyreclassification (including any reverse stock split), recapitalization,reorganization or any similar transaction which has the effect ofreducing the number of outstanding shares of the Common Stock, unless thefailure so to increase such annual rate is approved by a majority of theContinuing Directors; and
          (c) such Interested Stockholder shall not have become the beneficialowner of any additional shares of Voting Stock except as part of thetransaction in which it became an Interested Stockholder;
          5. After such Interested Stockholder has become an InterestedStockholder, such Interested Stockholder shall not have received the benefit,directly or indirectly (except proportionately as a stockholder), of anyloans, advances, guarantees, pledges or other financial assistance or any taxcredits or other tax advantages provided by the Corporation, whether inanticipation of or in connection with such Business Combination or otherwise;and
          6. A proxy or information statement describing the proposed BusinessCombination and complying with the requirements of the Securities ExchangeAct of 1934 and the rules and regulations thereunder (or any subsequentprovisions replacing such Act, rules or regulations) shall be mailed to thestockholders of the Corporation, no later than the earlier of (a) 30 daysprior to any vote on the proposed Business Combination or (b) if no vote onsuch Business Combination is required, 60 days prior to the consummation ofsuch Business Combination (whether or not such proxy or information statementis required to be mailed pursuant to such Act or subsequent provisions). Suchproxy statement shall contain at the front thereof, in a prominent place, anyrecommendations as to the advisability (or inadvisability) of the BusinessCombination which the Continuing Directors, or any of them, may havefurnished in writing and, if deemed advisable by a majority of the ContinuingDirectors, an opinion of a reputable investment banking firm as to thefairness (or lack of fairness) of the terms of such Business Combination,from the point of view of the holders of Voting Stock other than anInterested Stockholder (such investment banking firm to be selected by amajority of the Continuing Directors, to be furnished with all information itreasonably requests and to be paid a reasonable fee for its services uponreceipt by the Corporation of such opinion).
     (C) For the purposes of this Article X:
          1. “Business Combination” shall mean any transaction which is referredto in any one or more of subparagraphs 1 through 5 of paragraph (A) of thisArticle X.
          2. “Voting Stock” shall mean stock of all classes and series of theCorporation entitled to vote generally in the election of directors.
          3. “Person” shall mean any individual, firm, trust, partnership,association, corporation or other entity.
          4. “Interested Stockholder” shall mean any person (other than theCorporation or any Subsidiary) who or which:
          (a) is the beneficial owner, directly or indirectly, of more than 5%of the combined voting power of the then outstanding Voting Stock; or
          (b) is an Affiliate of the Corporation and at any time within thetwo-year period immediately prior to the date in question was thebeneficial owner, directly or indirectly, of more than 5% of the combinedvoting power of the then outstanding Voting Stock; or
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          (c) is an assignee of or has otherwise succeeded to the beneficialownership of any shares of Voting Stock which were at any time within thetwo-year period immediately prior to the date in questionbeneficially owned by an Interested Stockholder, unless suchassignment or succession shall have occurred pursuant to a PublicTransaction (as hereinafter defined) or any series of transactionsinvolving a Public Transaction.
          For the purposes of determining whether a person is an InterestedStockholder, the number of shares of Voting Stock deemed to be outstandingshall include shares deemed owned through application of subparagraph 6 belowbut shall not include any other shares of Voting Stock which may be issuablepursuant to any agreement, arrangement or understanding, or upon exercise ofconversion rights, warrants or options, or otherwise.
          5. “Public Transaction” shall mean any (a) purchase of shares offeredpursuant to an effective registration statement under the Securities Act of1933 or (b) open-market purchase of shares on a national securities exchangeif, in either such case, the price and other terms of sale are not negotiatedby the purchaser and the seller of the beneficial interest in the shares.
          6. A person shall be a “beneficial owner” of any Voting Stock:
          (a) which such person or any of its Affiliates or Associatesbeneficially owns, directly or indirectly; or
          (b) which such person or any of its Affiliates or Associates has (i)the right to acquire (whether such right is exercisable immediately or onlyafter the passage of time) pursuant to any agreement, arrangement orunderstanding or upon the exercise of conversion rights, exchange rights,warrants or options, or otherwise or (ii) the right to vote or to directthe voting thereof pursuant to any agreement, arrangement or understanding;or
          (c) which is beneficially owned, directly or indirectly, by any otherperson with which such person or any of its Affiliates or Associates hasany agreement, arrangement or understanding for the purpose of acquiring,holding, voting or disposing of any shares of Voting Stock.
          7. “Affiliate” and “Associate” shall have the respective meaningsascribed to such terms in Rule 12b-2 of the General Rules and Regulationsunder the Securities Exchange Act of 1934, as in effect on January 1, 1985.
          8. “Subsidiary” shall mean any corporation of which a majority of anyclass of equity security (as defined in Rule 3a11-1 of the General Rules andRegulations under the Securities Exchange Act of 1934, as in effect onJanuary 1, 1985) is owned, directly or indirectly, by the Corporation;provided, however, that, for purposes of the definition of InterestedStockholder set forth in subparagraph 4, the term “Subsidiary” shall meanonly a corporation of which a majority of each class of equity security isowned, directly or indirectly, by the Corporation.
          9. “Continuing Director” shall mean any member of the Board ofDirectors of the Corporation who is unaffiliated with, and not a nominee of,an Interested Stockholder and was a member of the Board prior to the timethat such Interested Stockholder became an Interested Stockholder, and anysuccessor of a Continuing Director who is unaffiliated with, and not anominee of, an Interested Stockholder and is recommended to succeed aContinuing Director by a majority of Continuing Directors then on the Board.
          10. “Announcement Date” shall mean the date of the first publicannouncement of the proposed Business Combination.
          11. “Determination Date” shall mean the date on which an InterestedStockholder became an Interested Stockholder.
          12. “Fair Market Value” shall mean: (a) in the case of stock, thehighest closing sale price during the 30-day period immediately preceding thedate in question of a share of such stock on the Composite Tape for New YorkStock Exchange-Listed Stocks, or, if such stock is not quoted on theComposite Tape, on the New York Stock Exchange, or, if such stock is notlisted on such Exchange, on the principal United
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States securities exchangeregistered under the Securities Exchange Act of 1934 on which such stock islisted, or, if such stock is not listed on any such exchange, the highestclosing bid quotation with respect to a share of such stock during the 30-dayperiod preceding the date in question on the National Association ofSecurities Dealers, Inc. Automated Quotations System or any system then inuse, or, if no such quotations are available,the fair market value on the date in question of a share of such stockas determined by a majority of the Continuing Directors in good faith; and(b) in the case of property other than cash or stock, the fair market valueof such property on the date in question as determined by a majority of theContinuing Directors in good faith.
     (D) A majority of the Continuing Directors shall have the power and dutyto determine for the purposes of this Article X, on the basis of informationknown to them after reasonable inquiry, all facts necessary to determinecompliance with this Article X, including, without limitation, (1) whether aperson is an Interested Stockholder, (2) the number of shares of Voting Stockbeneficially owned by any person, (3) whether a person is an Affiliate orAssociate of another, (4) whether the assets which are the subject of anyBusiness Combination have, or the consideration to be received for the issuanceor transfer of securities by the Corporation or any Subsidiary in any BusinessCombination has, an aggregate Fair Market Value of $50,000,000 or more, (5)whether the requirements of paragraph (B) of this Article X have been met and(6) such other matters with respect to which a determination is required underthis Article X. The good faith determination of a majority of the ContinuingDirectors on such matters shall be conclusive and binding for all purposes ofthis Article X.
     (E) Nothing contained in this Article X shall be construed to relieve anInterested Stockholder from any fiduciary obligation imposed by law.
     (F) Notwithstanding any other provisions of this Restated Certificate ofIncorporation or the By-Laws of the Corporation or the fact that a lesserpercentage may be specified by law, this Restated Certificate of Incorporationor the By-Laws of the Corporation, the affirmative vote of the holders of atleast 80% of the combined voting power of the then outstanding Voting Stock,voting together as a single class, shall be required to amend, alter, adopt anyprovision inconsistent with or repeal this Article X.
**ARTICLE XI: PURCHASES OF STOCK OF THE CORPORATION**
     (A) Except as otherwise expressly provided in this Article XI, theCorporation may not purchase any shares of Common Stock at a per-share price inexcess of the Fair Market Price (as hereinafter defined) as of the time of suchpurchase from a person known by the Corporation to be a Substantial Stockholder(as hereinafter defined), unless such purchase has been approved by theaffirmative vote of the holders of at least two-thirds of the shares of CommonStock voted thereon held by Disinterested Stockholders (as hereinafterdefined). Such affirmative vote shall be required notwithstanding the fact thatno vote may be required or that a lesser percentage may be specified by law, inthis Restated Certificate of Incorporation or in any agreement with anynational securities exchange or otherwise.
     (B) The provisions of this Article XI shall not apply to (1) any purchasepursuant to an offer to purchase which is made on the same terms and conditionsto the holders of all of the outstanding shares of Common Stock or (2) any openmarket purchase that constitutes a Public Transaction (as hereinafter defined).
     (C) For the purposes of this Article XI:
          1. “Person” shall mean any individual, firm, trust, partnership,association, corporation or other entity.
          2. “Substantial Stockholder” shall mean any person (other than anyemployee benefit plan or trust of the Corporation or any similar entity) whoor which:
          (a) is the beneficial owner of more than 5% of the combined votingpower of the then outstanding Common Stock, the acquisition of any sharesof which has occurred within the two-year period immediately prior to thedate on which the Corporation purchases any such shares; or
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          (b) is an assignee of or has otherwise succeeded to the beneficialownership of any shares of Common Stock beneficially owned by a SubstantialStockholder, unless such assignment or succession shall have occurredpursuant to a Public Transaction or any series of transactions involving aPublic Transaction and, with respect to all shares of Common Stock owned bysuch person, has been the beneficial owner of any such shares for a periodof less than two years (including, for these purposes, the holding periodof the Substantial Stockholder from whom such person acquired shares).
          For the purposes of determining whether a person is a SubstantialStockholder, the number of shares of Common Stock deemed to be outstandingshall include shares deemed owned through application of subparagraph 4 belowbut shall not include any other shares of Common Stock which may be issuablepursuant to any agreement, arrangement or understanding, or upon exercise ofconversion rights, warrants or options, or otherwise.
          3. “Public Transaction” shall mean any (a) purchase of shares offeredpursuant to an effective registration statement under the Securities Act of1933 or (b) open market purchase of shares on a national securities exchangeif, in either such case, the price and other terms of sale are not negotiatedby the purchaser and the seller of the beneficial interest in the shares.
          4. A person shall be a “beneficial owner” of any Common Stock:
          (a) which such person or any of its Affiliates or Associatesbeneficially owns, directly or indirectly; or
          (b) which such person or any of its Affiliates or Associates has (i)the right to acquire (whether such right is exercisable immediately or onlyafter the passage of time) pursuant to any agreement, arrangement orunderstanding or upon the exercise of conversion rights, exchange rights,warrants or options, or otherwise, or (ii) the right to vote or to directthe voting thereof pursuant to any agreement, arrangement or understanding;or
          (c) which is beneficially owned, directly or indirectly, by any otherperson with which such person or any of its Affiliates or Associates hasany agreement, arrangement or understanding for the purpose of acquiring,holding, voting or disposing of any shares of Common Stock.
          5. “Affiliate” and “Associate” shall have the respective meaningsascribed to such terms in Rule 12b-2 of the General Rules and Regulationsunder the Securities Exchange Act of 1934, as in effect on January 1, 1985.
          6. “Disinterested Stockholders” shall mean those holders of CommonStock who are not Substantial Stockholders.
          7. “Fair Market Price” shall mean the highest closing sale price on theComposite Tape for New York Stock Exchange-Listed Stocks during the 30-dayperiod immediately preceding the date in question of a share of Common Stockor, if such stock is not quoted on the Composite Tape, on the New York StockExchange or, if such stock is not listed on such Exchange, the fair marketvalue on the date in question of a share of such stock as determined by amajority of the Board of Directors in good faith.
     (D) A majority of the Board of Directors shall have the power and duty todetermine for the purposes of this Article XI, on the basis of informationknown to them after reasonable inquiry, all facts necessary to determinecompliance with this Article XI, including without limitation, (1) whether aperson is a Substantial Stockholder, (2) the number of shares of Common Stockbeneficially owned by any person, (3) whether a person is an Affiliate orAssociate of another, (4) whether a price is in excess of the Fair MarketPrice, (5) whether a purchase constitutes a Public Transaction and (6) suchother matters with respect to which a determination is required under thisArticle XI. The good faith determination of a majority of the Board ofDirectors on such matters shall be conclusive and binding for all purposes ofthis Article XI.
     (E) Nothing contained in this Article XI shall be construed to relieve aSubstantial Stockholder from any fiduciary obligation imposed by law.
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**ARTICLE XII: DIRECTOR AND OFFICER LIABILITY**
     To the fullest extent permitted by the laws of the State of New Jersey, asthey exist or may hereafter be amended, directors and officers of theCorporation shall not be personally liable to the Corporation or itsstockholders for damages for breach of any duty owed to the Corporation or itsstockholders, except that the provisions of this Article XII shall not relievea director or officer from liability for any breach of duty based upon an actor omission (a) in breach of such person’s duty of loyalty to the Corporationor its stockholders, (b) not in good faith or involving a knowing violation oflaw or (c) resulting in receipt by such person of an improper personal benefit.
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**ARTICLE XIII: DIRECTORS**
     The number of directors constituting the current Board of Directors of theCorporation is eleven. The names and addresses of said directors are asfollows:   Lawrence A. Bossidy 104 West Mountain Road