1

 
(a) Common Stock. The powers, preferences and relative participating, optional orother rights, and the qualifications, limitations and restrictions in respect of the Common Stockare as follows:Subject to the prior or equal rights of any holders of Preferred Stock, the holdersof Common Stock shall be entitled (i) to receive dividends when and as declared by the Boardof Directors out of any funds legally available therefor, (ii) in the event of any dissolution,liquidation or winding up of the Corporation, to receive the remaining assets of the Corporationavailable for distribution, ratably according to the number of shares of Common Stock held, and(iii) to one vote for each share of Common Stock held on all matters submitted to a vote ofstockholders. No holder of Common Stock shall have any preemptive right to purchase or subscribefor any part of any issue of stock or of securities of the Corporation convertible into stock ofany class whatsoever, whether now or hereafter authorized. Holders of Common Stock are notentitled to cumulate votes in the election of any directors.(b) Preferred Stock. Preferred Stock may be issued from time to time in one or moreseries, each of such series to have such terms as stated or expressed herein and in the resolutionor resolutions providing for the issue of such series adopted by the Board of Directors of theCorporation as hereinafter provided. Any shares of Preferred Stock that are redeemed, purchased oracquired by the Corporation may be reissued except as otherwise provided by law. Different seriesof Preferred Stock shall not be construed to constitute different classes of shares for thepurposes of voting by classes unless expressly provided.Authority is hereby expressly granted to the Board of Directors from time to time to issue thePreferred Stock in one or more series, and in connection with the creation of any such series, byresolution or resolutions providing for the issuance of the shares thereof, to determine and fixthe number of shares of such series and such designations, preferences and relative, participating,optional or other special rights, and qualifications, limitations or restrictions thereof,including without limitation thereof, voting rights, dividend rights, conversion rights, redemptionprivileges and liquidation preferences, as shall be stated and expressed in such resolutions, allto the full extent now or hereafter permitted by the General Corporation Law of the State ofDelaware. Without limiting the generality of the foregoing, the resolutions providing for issuanceof any series of Preferred Stock may provide that such series shall be superior or rank equally orbe junior to the Preferred Stock of any other series to the extent permitted by law.The number of authorized shares of Preferred Stock may be increased or decreased (but notbelow the number of shares then outstanding) by the affirmative vote of the holders of a majorityof the stock of the Corporation entitled to vote, irrespective of the provisions of Section242(b)(2) of the General Corporation Law of the State of Delaware.FIFTH: (a) Board of Directors. The business and affairs of the Corporation shall bemanaged by or under the direction of the Board of Directors. The number of directors, subject toany right of the holders of any class or series of Preferred Stock to elect additional directors,shall be fixed from time to time by the Board of Directors pursuant to the Amended and RestatedBy-Laws of the Corporation. No decrease in the number of directors constituting the Board ofDirectors shall shorten the term of any incumbent director. No director need be a stockholder.
 
2

 
(b) Classification. Immediately subsequent to the effective date of this Amended andRestated Certificate of Incorporation, the Board of Directors shall be divided into three classes,designated Class 1, Class 2 and Class 3, as nearly equal in number as the then totalnumber of directors constituting the whole board permits, with the term of office of one classexpiring each year. The term of the directors of Class 1 shall expire at the first election ofdirectors after the effective date of this Amended and Restated Certificate of Incorporation, theterm of the directors of Class 2 shall expire at the second election of directors after theeffective date of this Amended and Restated Certificate of Incorporation and the term of thedirectors of Class 3 shall expire at the third election of directors after the effective date ofthis Amended and Restated Certificate of Incorporation. Subject to the foregoing, at each annualmeeting of stockholders, the successors to the class of directors whose term shall then expireshall be elected to hold office for a term expiring at the third succeeding annual meeting and eachdirector so elected shall hold office until his successor is elected and qualified, or until hisearlier death, resignation or removal.If the number of directors is changed, any increase or decrease in the number of directorsshall be apportioned among the three classes so as to make all classes as nearly equal in number aspossible, and the Board of Directors shall decide which class shall contain an unequal number ofdirectors. Notwithstanding the foregoing, whenever holders of any shares of Preferred Stock, orany series thereof, shall be entitled, voting separately as a class, to elect any directors, alldirectors so elected shall be allocated, each time they are so elected, to the class whose termexpires at the next succeeding annual meeting of stockholders.(c) Vacancies. Subject to the rights of the holders of any series of Preferred Stock,newly created directorships resulting from (i) an increase in the authorized number of directorselected by the holders of a majority of the outstanding shares of all classes of capital stock ofthe Corporation entitled to vote in the election of directors, considered for this purpose as oneclass, (ii) death, (iii) resignation, (iv) retirement, (v) disqualification, (vi) removal fromoffice or (vii) any other cause, may be filled by a majority vote of the remaining directors thenin office, although less than a quorum, or by the sole remaining director, and each director sochosen shall hold office for a term expiring at the annual meeting of stockholders at which theterm of the class to which he or she has been elected expires and until such director’s successorshall have been duly elected and qualified. No decrease in the authorized number of directorsshall shorten the term of any incumbent director.(d) Removal. Subject to the rights of the holders of any series of Preferred Stock, adirector may be removed only for cause, and only by the holders of a majority of the outstandingshares of all classes of capital stock of the Corporation entitled to vote in the election ofdirectors, considered for this purpose as one class. For purposes of removal of a director of theCorporation, “cause” shall mean (i) a final conviction of a felony involving moral turpitude or(ii) willful misconduct that is materially and demonstrably injurious economically to theCorporation. For purposes of this definition of “cause,” no act, or failure to act, by a directorshall be considered “willful” unless committed in bad faith and without a reasonable belief thatthe act or failure to act was in the best interest of the Corporation or any wholly-ownedsubsidiary of the Corporation. “Cause” shall not exist unless and until the Corporation hasdelivered to the director a written notice of the act or failure to act that constitutes “cause”and, if cure is possible, such director shall not have cured such act or omission within 60 daysafter the delivery of such notice.
 
3

 
SIXTH: Stockholder Action. Subject to the rights of the holders of any series ofPreferred Stock, any action required or permitted to be taken by stockholders pursuant to thisAmended and Restated Certificate of Incorporation or under applicable law may be effected only at aduly called annual or special meeting of stockholders and with a vote thereat, and may not beeffected by consent in writing. Except as otherwise required by law and subject to the rights ofany series of Preferred Stock, special meetings of the stockholders of the Corporation may becalled by the Board of Directors pursuant to a resolution approved by a majority of the members ofthe Board of Directors, the Chairman of the Board of Directors or the Chief Executive Officer.Subject to applicable law and the rights of holders of any series of Preferred Stock, stockholdersare not permitted to call an annual or special meeting or to require that the Board of Directorscall an annual or special meeting.SEVENTH: Powers of Directors. In furtherance and not in limitation of the powersconferred by statute, the Board of Directors is expressly authorized:(i) to allot and authorize the issuance of the authorized but unissued shares of theCorporation, including the declaration of dividends payable in shares of any class to stockholdersof any class;(ii) to exercise all of the powers of the Corporation, insofar as the same may lawfully bevested by this certificate in the Board of Directors; and(iii) the Board of Directors shall have the power to make, amend or repeal the By-Laws of theCorporation. Any By-Laws made by the Board of Directors under the powers conferred hereby may beamended or repealed by the Board of Directors or by the stockholders of the Corporation.EIGHTH: Directors’ Liability. No director shall be personally liable to theCorporation or its stockholders for monetary damages for breach of a fiduciary duty as a director;provided, however, that to the extent required by the provisions of Section 102(b)(7) of theGeneral Corporation Law of the State of Delaware or any successor statute, or any other laws of theState of Delaware, this provision shall not eliminate or limit the liability of a director (i) forany breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for actsor omissions not in good faith or which involve intentional misconduct or a knowing violation oflaw, (iii) under Section 174 of the General Corporation Law of the State of Delaware or (iv) forany transaction from which the director derived an improper personal benefit. If the GeneralCorporation Law of the State of Delaware hereafter is amended to authorize the further eliminationor limitation of the liability of directors, then the liability of a director of the Corporation,in addition to the limitation on personal liability provided herein, shall be limited to thefullest extent permitted by the amended General Corporation Law of the State of Delaware. Anyrepeal or modification of this Article Eighth by the stockholders of the Corporation shall beprospective only, and shall not adversely affect any limitation on the personal liability of adirector of the Corporation existing as of the time of such repeal or modification.
 
4

 
NINTH: (a) Indemnification. Each person who was or is made a party or is threatenedto be made a party to or is involved in any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative (hereinafter a“proceeding”), by reason of the fact that he or she, or a person for whom he or she is thelegal representative, is or was a director, officer or employee of the Corporation or is or wasserving at the request of the Corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or other enterprise, including service with respectto employee benefit plans, shall be indemnified by the Corporation to the fullest extent permittedby the General Corporation Law of the State of Delaware, as the same exists or may hereafter beamended (but in the case of any such amendment, only to the extent that such amendment permits theCorporation to provide broader indemnification rights than said law permitted the Corporation toprovide prior to such amendment), against all expense, liability and loss (including attorney’sfees, judgments, fines, excise tax or penalties pursuant to the Employee Retirement Income SecurityAct of 1974 and amounts paid or to be paid in settlement) reasonably incurred by such person inconnection with such proceeding, and such indemnification shall continue as to a person who hasceased to be a director, officer, employee or agent and shall inure to the benefit of his or herheirs, executors and administrators; provided, however, that the Corporation shall indemnify anysuch person seeking indemnification in connection with a proceeding initiated by him or her only ifsuch proceeding was authorized by the Board of Directors, either generally or in the specificinstance. The right to indemnification shall include the advancement of expenses incurred indefending any such proceeding in advance of its final disposition in accordance with proceduresestablished from time to time by the Board of Directors; provided, however, that if the GeneralCorporation Law of the State of Delaware so requires, the director, officer or employee shalldeliver an undertaking to repay all amounts so advanced if it shall ultimately be determined thathe or she is not entitled to be indemnified under this Article Ninth or otherwise.(b) Nonexclusivity. The rights of indemnification provided in this Article Ninthshall be in addition to any rights to which any person may otherwise be entitled by law or underany By-Law, agreement, vote of stockholders or disinterested directors, or otherwise. Such rightsshall continue as to any person who has ceased to be a director, officer or employee and shallinure to the benefit of his heirs, executors and administrators, and shall be applied toproceedings commenced after the adoption hereof, whether arising from acts or omissions occurringbefore or after the adoption hereof.(c) Insurance. The Corporation may purchase and maintain insurance to protect anypersons against any liability or expense asserted against or incurred by such person in connectionwith any proceeding, whether or not the Corporation would have the power to indemnify such personagainst such liability or expense by law or under this Article Ninth or otherwise. The Corporationmay create a trust fund, grant a security interest or use other means (including, withoutlimitation, a letter of credit) to insure the payment of such sums as may become necessary toeffect indemnification as provided herein.(d) Amendment. No amendment to or repeal of this Article Ninth shall diminish or haveany adverse effect on the rights of any individual referred to in this Article Ninth for or withrespect to acts or omissions of such individual occurring prior to such amendment or repeal.
 
5