**Exhibit 3.1**

 

AMENDED ANDRESTATED

 

CERTIFICATE OFINCORPORATION

 

OF

 

JACKSON HEWITTTAX SERVICE INC.

 

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Pursuant to Sections 242 and 245 of theDelaware General Corporation Law

 

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Jackson HewittTax Service Inc., a corporation organized and existing under the GeneralCorporation Law of the State of Delaware (the “DGCL”), does herebycertify as follows:

 

1.                                       Thename of the corporation is Jackson Hewitt Tax Service Inc. (the “Corporation”).  The Corporation was originally incorporatedunder the name JHTS Inc.  The originalCertificate of Incorporation of the Corporation was filed with the Secretary ofState of the State of Delaware on February 20, 2004 (the “Certificate ofIncorporation”).

 

2.                                       ThisRestated Certificate of Incorporation was duly adopted by the Board ofDirectors of the Corporation and by the stockholder of the Corporation inaccordance with Sections 228, 242 and 245 of the DGCL.

 

3.                                       Thetext of the Certificate of Incorporation, as amended or supplementedheretofore, is further amended hereby, and is hereby restated in its entirety,to read as follows:

 

ARTICLE I

 

The name of the Corporation is Jackson Hewitt Tax Service Inc.

 

ARTICLE II

 

The address of theregistered office of the Corporation in the State of Delaware is 2711Centerville Road, Suite 400, in the City of Wilmington, County of NewCastle.  The name of its registeredagent at that address is CORPORATION SERVICE COMPANY.

 

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ARTICLE III

 

The purpose ofthe Corporation is to engage in any lawful act or activity for which acorporation may be organized under the DGCL.

 

ARTICLE IV

 

(A)                              Authorized Capital Stock.  The total number of shares of stock whichthe Corporation shall have authority to issue is 210,000,000 shares of capitalstock, consisting of (i) 200,000,000 shares of common stock, par value $0.01per share (the “Common Stock”) and (ii) 10,000,000 shares of preferredstock, par value $0.01 per share (the “Preferred Stock”).

 

(B)                                Common Stock. The shares of Common Stock of the Corporation shall be of one and thesame class.  The holders of Common stockshall have one vote per share of Common Stock on all matters on which holdersof Common Stock are entitled to vote.

 

(C)                                Preferred Stock. Except as provided in Article IV(D), with respect to Series AJunior Participating Preferred Stock (as hereinafter defined), the Board ofDirectors is hereby expressly authorized to provide for the issuance of all orany shares of the Preferred Stock in one or more classes or series, and to fixfor each such class or series such voting powers, full or limited, or no votingpowers, and such designations, preferences and relative, participating,optional or other special rights and such qualifications, limitations orrestrictions thereof, as shall be stated and expressed in the resolution orresolutions adopted by the Board of Directors providing for the issuance ofsuch class or series, including, without limitation, the authority to providethat any such class or series may be (i) subject to redemption at such time ortimes and at such price or prices; (ii) entitled to receive dividends (whichmay be cumulative or non-cumulative) at such rates, on such conditions, and atsuch times, and payable in preference to, or in such relation to, the dividendspayable on any other class or classes or any other series; (iii) entitled tosuch rights upon the dissolution of, or upon any distribution of the assets of,the Corporation; or (iv) convertible into, or exchangeable for, shares of anyother class or classes of stock, or of any other series of the same or anyother class or classes of stock, of the Corporation at such price or prices orat such rates of exchange and with such adjustments; all as may be stated insuch resolution or resolutions.

 

(D)                               Series A Junior ParticipatingPreferred Stock.  There is hereby created a series ofPreferred Stock, designated Series A Junior Participating Preferred Stockhaving the terms, rights and privileges set forth in Exhibit A attachedhereto.

 

(E)                                 Power to Sell and Purchase Shares. Subject to the requirements of applicable law, the Corporation shallhave the power to issue and sell all or any part of any shares of any class ofstock herein or hereafter authorized to such persons, and for suchconsideration, as the Board of Directors shall from time to time, in its discretion,determine, whether or not greater consideration could be received upon theissue or sale

 

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ofthe same number of shares of another class, and as otherwise permitted bylaw.  Subject to the requirements ofapplicable law, the Corporation shall have the power to purchase any shares ofany class of stock herein or hereafter authorized from such persons, and forsuch consideration, as the Board of Directors shall from time to time, in itsdiscretion, determine, whether or not less consideration could be paid upon thepurchase of the same number of shares of another class, and as otherwisepermitted by law.

 

ARTICLE V

 

The followingprovisions are inserted for the management of the business and the conduct ofthe affairs of the Corporation, and for further definition, limitation andregulation of the powers of the Corporation and of its directors andstockholders:

 

(A)                              The business and affairs of theCorporation shall be managed by or under the direction of the Board ofDirectors.

 

(B)                                The Board of Directors shall consistof not less than five or more than nine members, the exact number of whichshall be fixed by the Incorporator and thereafter from time to time by theBoard of Directors.

 

(C)                                The directors shall be divided intothree classes, designated Class I, Class II and Class III.  Each class shall consist, as nearly as maybe possible, of one-third of the total number of directors constituting theentire Board of Directors.  The initialdivision of the Board of Directors into classes shall be made by the decisionof the affirmative vote of a majority of the entire Board of Directors.  The term of the initial Class I directorsshall terminate on the date of the 2005 annual meeting; the term of the initialClass II directors shall terminate on the date of the 2006 annual meeting; andthe term of the initial Class III directors shall terminate on the date of the2007 annual meeting.  At each succeedingannual meeting of stockholders beginning in 2005, successors to the class ofdirectors whose term expires at that annual meeting shall be elected for athree-year term.  If the number ofdirectors is changed, any increase or decrease shall be apportioned among the classesso as to maintain the number of directors in each class as nearly equal aspossible, and any additional director of any class elected to fill a vacancyresulting from an increase in such class shall hold office for a term thatshall coincide with the remaining term of that class, but in no case will adecrease in the number of directors shorten the term of any incumbent director.

 

(D)                               A director shall hold office untilthe annual meeting for the year in which his or her term expires and until hisor her successor shall be elected and shall qualify, subject, however, to priordeath, resignation, retirement, disqualification or removal from office.

 

(E)                                 Subject to the terms of any one ormore classes or series of Preferred Stock, any vacancy on the Board ofDirectors that results from an increase in the number of directors may befilled by a majority of the Board of Directors then in office, provided that aquorum is present, and any other vacancy occurring on the Board

 

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ofDirectors may be filled by a majority of the Board of Directors then in office,even if less than a quorum, or by a sole remaining director.  Any director of any class elected to fill avacancy resulting from an increase in the number of directors of such classshall hold office for a term that shall coincide with the remaining term ofthat class.  Any director elected tofill a vacancy not resulting from an increase in the number of directors shallhave the same remaining term as that of his predecessor.  Subject to the rights, if any, of theholders of shares of Preferred Stock then outstanding, any or all of thedirectors of the Corporation may be removed from office at any time, but onlyfor cause and only by the affirmative vote of the holders of at least 60% ofthe voting power of the Corporation’s then issued and outstanding capital stockentitled to vote in the election of directors. Notwithstanding the foregoing, whenever the holders of any one or moreclasses or series of Preferred Stock issued by the Corporation shall have theright, voting separately by class or series, to elect directors at an annual orspecial meeting of stockholders, the election, term of office, filling ofvacancies and other features of such directorships shall be governed by theterms of this Certificate of Incorporation applicable thereto, and suchdirectors so elected shall not be divided into classes pursuant to this ArticleV unless expressly provided by such terms.

 

(F)                                 In addition to the powers andauthority hereinbefore or by statute expressly conferred upon them, thedirectors are hereby empowered to exercise all such powers and do all such actsand things as may be exercised or done by the Corporation, subject,nevertheless, to the provisions of the DGCL, this Certificate of Incorporation,and any By-Laws adopted by the stockholders; provided, however,that no By-Laws hereafter adopted by the stockholders shall invalidate anyprior act of the directors which would have been valid if such By-Laws had notbeen adopted.

 

ARTICLE VI

 

No director shall bepersonally liable to the Corporation or any of its stockholders for monetarydamages for breach of fiduciary duty as a director, except to the extent suchexemption from liability or limitation thereof is not permitted under the DGCLas the same exists or may hereafter be amended.  If the DGCL is amended hereafter to authorize the furtherelimination or limitation of the liability of directors, then the liability ofa director of the Corporation shall be eliminated or limited to the fullest extentauthorized by the DGCL, as so amended. Any repeal or modification of this Article VI shall not adverselyaffect any right or protection of a director of the Corporation existing at thetime of such repeal or modification with respect to acts or omissions occurringprior to such repeal or modification.

 

ARTICLE VII

 

The Corporation shallindemnify its directors and officers to the fullest extent authorized orpermitted by law, as now or hereafter in effect, and such right toindemnification shall continue as to a person who has ceased to be a directoror officer of the Corporation and shall inure to the benefit of his or herheirs, executors and personal and legal representatives; provided, however,that, except for proceedings to enforce rights to indemnification, theCorporation shall not be obligated to indemnify any director

 

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orofficer (or his or her heirs, executors or personal or legal representatives)in connection with a proceeding (or part thereof) initiated by such personunless such proceeding (or part thereof) was authorized or consented to by theBoard of Directors.  The right toindemnification conferred by this Article VII shall include the right tobe paid by the Corporation the expenses incurred in defending or otherwiseparticipating in any proceeding in advance of its final disposition uponreceipt by the Corporation of an undertaking by or on behalf of the director orofficer receiving advancement to repay the amount advanced if it shallultimately be determined that such person is not entitled to be indemnified bythe Corporation under this Article VII.

 

TheCorporation may, to the extent authorized from time to time by the Board ofDirectors, provide rights to indemnification and to the advancement of expensesto employees and agents of the Corporation similar to those conferred in this ArticleVII to directors and officers of the Corporation.

 

The rights toindemnification and to the advancement of expenses conferred in this ArticleVII shall not be exclusive of any other right which any person may have orhereafter acquire under this Certificate of Incorporation, the By-Laws of theCorporation, any statute, agreement, vote of stockholders or disinteresteddirectors or otherwise.

 

Any repeal ormodification of this Article VII shall not adversely affect any rightsto indemnification and to the advancement of expenses of a director or officerof the Corporation existing at the time of such repeal or modification withrespect to any acts or omissions occurring prior to such repeal ormodification.

 

ARTICLE VIII

 

Any action requiredor permitted to be taken by the stockholders of the Corporation must beeffected at a duly called annual or special meeting of stockholders of theCorporation, and the ability of the stockholders to consent in writing to thetaking of any action is hereby specifically denied.

 

ARTICLE IX

 

(A)                              Meetings of stockholders may be heldwithin or without the State of Delaware, as the By-Laws may provide.  The books of the Corporation may be kept(subject to any provision contained in the DGCL) outside the State of Delawareat such place or places as may be designated from time to time by the Board ofDirectors or in the By-Laws of the Corporation.

 

(B)                                Unless otherwise required by law,Special Meetings of Stockholders, for any purpose or purposes, may be called byeither (i) the Chairman of the Board of Directors, if there be one, (ii) thePresident or (iii) the Board of Directors. The ability of the stockholders to call a Special Meeting ofStockholders is hereby specifically denied.

 

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ARTICLE X

 

In furtherance andnot in limitation of the powers conferred upon it by the laws of the State ofDelaware, the Board of Directors shall have the power to adopt, amend, alter orrepeal the Corporation’s By-Laws.  Theaffirmative vote of at least a majority of the entire Board of Directors shallbe required to adopt, amend, alter, change or repeal the Corporation’sBy-Laws.  The Corporation’s By-Laws alsomay be adopted, amended, altered, changed or repealed by the affirmative voteof the holders of at least 60% of the voting power of the shares entitled tovote at an election of directors.

 

ARTICLE XI

 

The Corporationreserves the right to amend, alter, change or repeal any provision contained inthis Certificate of Incorporation in the manner now or hereafter prescribed inthis Certificate of Incorporation, the Corporation’s By-Laws or the DGCL, andall rights herein conferred upon stockholders are granted subject to suchreservation; provided, however, that, notwithstanding any otherprovision of this Certificate of Incorporation (and in addition to any othervote that may be required by law), the affirmative vote of the holders of atleast 60% of the voting power of the shares entitled to vote at an election ofdirectors shall be required to amend, alter, change or repeal, or to adopt anyprovision as part of this Certificate of Incorporation inconsistent with thepurpose and intent of Articles V, VII, IX and X ofthis Certificate of Incorporation or this Article XI.

 

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IN WITNESSWHEREOF, the Corporation has caused this Certificate of Incorporation to beexecuted on its behalf this 21st day of June, 2004.

 
|   | JACKSON HEWITT TAX SERVICE INC. |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             | /s/  Michael D. Lister |   |
|   |                            | Name: | Michael D. Lister |
|   |                            | Title:  President and Chief  Executive |
|   |                            | Officer |
|        |                                 |  |  |  |  |

 

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**EXHIBIT A**

**TO**

**CERTIFICATE OF INCORPORATION**

 

JACKSON HEWITT TAX SERVICE INC.

SERIES A JUNIOR PARTICIPATING PREFERRED STOCK

 

Section1.  Designation and Amount.  The shares of such series shall bedesignated as “Series A Junior Participating Preferred Stock” and the number ofshares constituting such series shall be 200,000.

 

Section2.  Dividends and Distributions.

 

(A)  The holders of shares of Series A JuniorParticipating Preferred Stock shall be entitled to receive, when, as and ifdeclared by the Board of Directors out of funds legally available for thepurpose, quarterly dividends payable in cash on the 15th day of May,August, November and February in each year (each such date being referred toherein as a “Quarterly Dividend Payment Date”), commencing on the firstQuarterly Dividend Payment Date after the first issuance of a share or fractionof a share of Series A Junior Participating Preferred Stock, in an amount pershare (rounded to the nearest cent) equal to the greater of (a) $0.01 or (b)subject to the provision for adjustment hereinafter set forth, 1,000 times theaggregate per share amount of all cash dividends, and 1,000 times the aggregateper share amount (payable in kind) of all non-cash dividends or otherdistributions other than a dividend payable in shares of Common Stock or asubdivision of the outstanding shares of Common Stock (by reclassification orotherwise), declared on the Common Stock, par value $0.01 per share, of theCorporation (the “Common Stock”) since the immediately preceding QuarterlyDividend Payment Date, or, with respect to the first Quarterly Dividend PaymentDate, since the first issuance of any share or fraction of a share of Series AJunior Participating Preferred Stock. In the event the Corporation shall at any time after June 25, 2004 (the“Rights Declaration Date”) (i) declare any dividend on Common Stock payable inshares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)combine the outstanding Common Stock into a smaller number of shares, then ineach such case the amount to which holders of shares of Series A JuniorParticipating Preferred Stock were entitled immediately prior to such eventunder clause (b) of the preceding sentence shall be adjusted by multiplyingsuch amount by a fraction the numerator of which is the number of shares ofCommon 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.

 

(B)  The Corporation shall declare a dividend ordistribution on the Series A Junior Participating Preferred Stock as providedin Paragraph (A) above immediately after it declares a dividend or distributionon the Common Stock (other than a dividend payable in shares of Common Stock);provided that, in the event no dividend or distribution shall have beendeclared on the Common Stock during the period between any Quarterly DividendPayment Date and the next subsequent Quarterly Dividend

 

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Payment Date, a dividend of$0.01 per share on the Series A Junior Participating Preferred Stock shallnevertheless be payable on such subsequent Quarterly Dividend Payment Date.

 

(C)  Dividends shall begin to accrue and becumulative on outstanding shares of Series A Junior Participating PreferredStock from the Quarterly Dividend Payment Date next preceding the date of issueof such shares of Series A Junior Participating Preferred Stock, unless thedate of issue of such shares is prior to the record date for the firstQuarterly Dividend Payment Date, in which case dividends on such shares shallbegin to accrue from the date of issue of such shares, or unless the date ofissue is a Quarterly Dividend Payment Date or is a date after the record datefor the determination of holders of shares of Series A Junior Participating PreferredStock entitled to receive a quarterly dividend and before such QuarterlyDividend Payment Date, in either of which events such dividends shall begin toaccrue and be cumulative from such Quarterly Dividend Payment Date.  Accrued but unpaid dividends shall not bearinterest.  Dividends paid on the sharesof Series A Junior Participating Preferred Stock in an amount less than thetotal amount of such dividends at the time accrued and payable on such sharesshall be allocated pro rata on a share-by-share basis among all such shares atthe time outstanding.  The Board ofDirectors may fix a record date for the determination of holders of shares ofSeries A Junior Participating Preferred Stock entitled to receive payment of adividend or distribution declared thereon, which record date shall be no morethan 30 days prior to the date fixed for the payment thereof.

 

Section3.  Voting Rights.  The holders of shares of Series A JuniorParticipating Preferred Stock shall have the following voting rights:

 

(A)  Subject to the provision for adjustmenthereinafter set forth, each share of Series A Junior Participating PreferredStock shall entitle the holder thereof to 1,000 votes on all matters submittedto a vote of the stockholders of the Corporation.  In the event the Corporation shall at any time after the RightsDeclaration Date (i) declare any dividend on Common Stock payable in shares ofCommon Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine theoutstanding Common Stock into a smaller number of shares, then in each suchcase the number of votes per share to which holders of shares of Series AJunior Participating Preferred Stock were entitled immediately prior to suchevent shall be adjusted by multiplying such number by a fraction the numeratorof which 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 were outstanding immediately prior to such event.

 

(B)  Except as otherwise provided herein or bylaw, the holders of shares of Series A Junior Participating Preferred Stock andthe holders of shares of Common Stock shall vote together as one class on allmatters submitted to a vote of stockholders of the Corporation.

 

(C)  (i) If at any time dividends on any Series A Junior Participating PreferredStock shall be in arrears in an amount equal to six (6) quarterly dividendsthereon, the occurrence of such contingency shall mark the beginning of aperiod (herein

 

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called a “default period”)which shall extend until such time when all accrued and unpaid dividends forall previous quarterly dividend periods and for the current quarterly dividendperiod on all shares of Series A Junior Participating Preferred Stock thenoutstanding shall have been declared and paid or set apart for payment.  During each default period, all holders ofPreferred Stock (including holders of the Series A Junior ParticipatingPreferred Stock) with dividends in arrears in an amount equal to six (6)quarterly dividends thereon, voting as a class, irrespective of series, shallhave the right to elect two (2) directors.

 

(ii)  During any default period,such voting right of the holders of Series A Junior Participating PreferredStock may be exercised initially at a special meeting called pursuant tosubparagraph (iii) of this Section 3(C) or at any annual meeting ofstockholders, and thereafter at annual meetings of stockholders, provided thatneither such voting right nor the right of the holders of any other series ofPreferred Stock, if any, to increase, in certain cases, the authorized numberof directors shall be exercised unless the holders of ten percent (10%) innumber of shares of Preferred Stock outstanding shall be present in person orby proxy.  The absence of a quorum ofthe holders of Common Stock shall not affect the exercise by the holders ofPreferred Stock of such voting right. At any meeting at which the holders of Preferred Stock shall exercisesuch voting right initially during an existing default period, they shall havethe right, voting as a class, to elect directors to fill such vacancies, ifany, in the Board of Directors as may then exist up to two (2) directors or, ifsuch right is exercised at an annual meeting, to elect two (2) directors.  If the number which may be so elected at anyspecial meeting does not amount to the required number, the holders of thePreferred Stock shall have the right to make such increase in the number ofdirectors as shall be necessary to permit the election by them of the requirednumber.  After the holders of thePreferred Stock shall have exercised their right to elect directors in anydefault period and during the continuance of such period, the number of directorsshall not be increased or decreased except by vote of the holders of PreferredStock as herein provided or pursuant to the rights of any equity securitiesranking senior to or pari passu with the Series A Junior ParticipatingPreferred 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, which meeting shall thereupon be called by thePresident, a Vice-President or the Secretary of the Corporation.  Notice of such meeting and of any annualmeeting at which holders of Preferred Stock are entitled to vote pursuant tothis Paragraph (C)(iii) shall be given to each holder of record of PreferredStock by mailing a copy of such notice to him at his last address as the sameappears on the books of the Corporation. Such meeting shall be called for a time not earlier than 20 days and notlater than 60 days after such order, such meeting may be called on similarnotice by any stockholder or stockholders owning in the aggregate not less thanten percent (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

 

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period within 60 daysimmediately preceding the date fixed for the next annual meeting of thestockholders.

 

(iv)  In any default period, theholders 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 (2) directors voting as a class, after the exercise of which right(x) the directors so elected by the holders of Preferred Stock shall continuein office until their successors shall have been elected by such holders oruntil the expiration of the default period, and (y) any vacancy in the Board ofDirectors may (except as provided in Paragraph (C)(ii) of this Section 3) befilled by vote of a majority of the remaining directors theretofore elected bythe holders of the class of stock which elected the director whose office shallhave become vacant.  References in thisParagraph (C) to directors elected by the holders of a particular class ofstock shall include directors elected by such directors to fill vacancies asprovided in clause (y) of the foregoing sentence.

 

(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 for in thecertificate of incorporation or by-laws irrespective of any increase madepursuant to the provisions of Paragraph (C)(ii) of this Section 3 (such numberbeing subject, however, to change thereafter in any manner provided by law orin the certificate of incorporation or by-laws).  Any vacancies in the Board of Directors effected by theprovisions of clauses (y) and (z) in the preceding sentence may be filled by amajority of the remaining directors.

 

(D)  Except as set forth herein, holders ofSeries A Junior Participating Preferred Stock shall have no special votingrights and their consent shall not be required (except to the extent they areentitled to vote with holders of Common Stock as set forth herein) for takingany corporate action.

 

Section 4.  Certain Restrictions.

 

(A)  Whenever quarterly dividends or otherdividends or distributions payable on the Series A Junior ParticipatingPreferred Stock as provided in Section 2 are in arrears, thereafter and untilall accrued and unpaid dividends and distributions, whether or not declared, onshares of Series A Junior Participating Preferred Stock outstanding shall havebeen paid in full, the Corporation shall not

 

(i)  declare or pay dividends on, make any otherdistributions on, or redeem or purchase or otherwise acquire for considerationany shares of stock ranking junior (either as to dividends or upon liquidation,dissolution or winding up) to the Series A Junior Participating PreferredStock;

 

(ii)  declare or pay dividends on or make anyother distributions on any shares of stock ranking on a parity (either as todividends or upon liquidation, dissolution or winding up) with the Series AJunior Participating Preferred Stock,

 

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except dividends paid ratably on the Series A Junior ParticipatingPreferred Stock and all such parity stock on which dividends are payable or inarrears in proportion to the total amounts to which the holders of all suchshares are then entitled;

 

(iii)  redeem or purchase or otherwise acquire forconsideration shares of any stock ranking on a parity (either as to dividendsor upon liquidation, dissolution or winding up) with the Series A JuniorParticipating Preferred Stock, provided that the Corporation may at any time redeem,purchase or otherwise acquire shares of any such parity stock in exchange forshares of any stock of the Corporation ranking junior (either as to dividendsor upon dissolution, liquidation or winding up) to the Series A JuniorParticipating Preferred Stock; or

 

(iv)  purchase or otherwise acquire forconsideration any shares of Series A Junior Participating Preferred Stock, orany shares of stock ranking on a parity with the Series A Junior ParticipatingPreferred Stock, except in accordance with a purchase offer made in writing orby publication (as determined by the Board of Directors) to all holders of suchshares upon such terms as the Board of Directors, after consideration of therespective annual dividend rates and other relative rights and preferences ofthe respective series and classes, shall determine in good faith will result infair and equitable treatment among the respective series or classes.

 

(B)  The Corporation shall not permit anysubsidiary of the Corporation to purchase or otherwise acquire forconsideration any shares of stock of the Corporation unless the Corporationcould, under Paragraph (A) of this Section 4, purchase or otherwise acquiresuch shares at such time and in such manner.

 

Section5.  Reacquired Shares.  Any shares of Series A Junior ParticipatingPreferred Stock purchased or otherwise acquired by the Corporation in anymanner whatsoever shall be retired and cancelled promptly after the acquisitionthereof.  All such shares shall upontheir cancellation become authorized but unissued shares of Preferred Stock andmay be reissued as part of a new series of Preferred Stock to be created byresolution or resolutions of the Board of Directors, subject to the conditionsand restrictions on issuance set forth herein.

 

Section6.  Liquidation, Dissolution orWinding Up.  (A)  Upon any liquidation (voluntary orotherwise), dissolution or winding up of the Corporation, no distribution shallbe made to the holders of shares of stock ranking junior (either as todividends or upon liquidation, dissolution or winding up) to the Series AJunior Participating Preferred Stock unless, prior thereto, the holders ofshares of Series A Junior Participating Preferred Stock shall have received anamount equal to $1,000 per share of Series A Participating Preferred Stock,plus an amount equal to accrued and unpaid dividends and distributions thereon,whether or not declared, to the date of such payment (the “Series A LiquidationPreference”).  Following the payment ofthe full amount of the Series A Liquidation Preference, no additionaldistributions shall be made to the holders of shares of Series A JuniorParticipating Preferred Stock unless, prior

 

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thereto, the holders of sharesof Common Stock shall have received an amount per share (the “CommonAdjustment”) equal to the quotient obtained by dividing (i) the Series ALiquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth insubparagraph (C) below to reflect such events as stock splits, stock dividendsand recapitalizations with respect to the Common Stock) (such number in clause(ii), the “Adjustment Number”). Following the payment of the full amount of the Series A Liquidation Preferenceand the Common Adjustment in respect of all outstanding shares of Series AJunior Participating Preferred Stock and Common Stock, respectively, holders ofSeries A Junior Participating Preferred Stock and holders of shares of CommonStock shall receive their ratable and proportionate share of the remainingassets to be distributed in the ratio of the Adjustment Number to 1 withrespect to such Preferred Stock and Common Stock, on a per share basis,respectively.

 

(B)  In the event, however, that there are notsufficient assets available to permit payment in full of the Series ALiquidation Preference and the liquidation preferences of all other series ofpreferred stock, if any, which rank on a parity with the Series A JuniorParticipating Preferred Stock, then such remaining assets shall be distributedratably to the holders of such parity shares in proportion to their respectiveliquidation preferences.  In the event,however, that 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.

 

(C)  In the event the Corporation shall at anytime after the Rights Declaration Date (i) declare any dividend on Common Stockpayable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,or (iii) combine the outstanding Common Stock into a smaller number of shares,then in each such case the Adjustment Number in effect immediately prior tosuch event shall be adjusted by multiplying such Adjustment Number by a fractionthe numerator of which is the number of shares of Common Stock outstandingimmediately after such event and the denominator of which is the number ofshares of Common Stock that were outstanding immediately prior to such event.

 

Section7.  Consolidation, Merger, etc.  In case the Corporation shall enter into anyconsolidation, merger, combination or other transaction in which the shares ofCommon Stock are exchanged for or changed into other stock or securities, cashand/or any other property, then in any such case the shares of Series A JuniorParticipating Preferred Stock shall at the same time be similarly exchanged orchanged in an amount per share (subject to the provision for adjustmenthereinafter set forth) equal to 1,000 times the aggregate amount of stock,securities, cash and/or any other property (payable in kind), as the case maybe, into which or for which each share of Common Stock is changed orexchanged.  In the event the Corporationshall at any time after the Rights Declaration Date (i) declare any dividend onCommon Stock payable in shares of Common Stock, (ii) subdivide the outstandingCommon Stock, or (iii) combine the outstanding Common Stock into a smallernumber of shares, then in each such case the amount set forth in the precedingsentence with respect to the exchange or change of shares of Series A JuniorParticipating Preferred Stock shall be adjusted by multiplying such amount by afraction the numerator of which is the number of shares of Common

 

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Stock outstanding immediatelyafter such event and the denominator of which is the number of shares of CommonStock that were outstanding immediately prior to such event.

 

Section8.  No Redemption.  The shares of Series A Junior ParticipatingPreferred Stock shall not be redeemable.

 

Section9.  Ranking.  The Series A Junior 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.

 

Section10.  Amendment.  At any time when any shares of Series AJunior Participating Preferred Stock are outstanding, neither the Amended andRestated Certificate of Incorporation of the Corporation nor this Certificateof Designation shall be amended in any manner which would materially alter orchange the powers, preferences or special rights of the Series A JuniorParticipating Preferred Stock so as to affect them adversely without theaffirmative vote of the holders of a majority or more of the outstanding sharesof Series A Junior Participating Preferred Stock, voting separately as a class.

 

Section11.  Fractional Shares.  Series A Junior Participating PreferredStock may be issued in fractions of a share which shall entitle the holder, inproportion to such holder’s fractional shares, to exercise voting rights,receive dividends, participate in distributions and to have the benefit of allother rights of holders of Series A Junior Participating Preferred Stock.

 

A-7

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