exhibit1.htm


    Exhibit 4.1

    RESTATED CERTIFICATE OF
INCORPORATION
OF
CENTURY ALUMINUM COMPANY

    

       

      Century
Aluminum Company, a Delaware corporation, hereby certifies as
follows:

       

      1.           The
name of the corporation is Century Aluminum Company (the
“Corporation”).  The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
February 20, 1981.  The name of the Corporation when it was originally
incorporated was Richco Exploration, Inc.

       

      2.           The
Board of Directors of the Corporation duly adopted resolutions by unanimous
written consent on May 4, 2009 setting forth a proposed amendment to the
Restated Certificate of Incorporation of the Corporation (the “Restated
Certificate”), declaring said resolutions to be advisable and directing that
said amendment be considered at the next Annual Meeting of the stockholders of
the Corporation.  The proposed amendment deletes paragraph (1) of
Article Fourth of the Restated Certificate and replaces it with the
following:

       

      “(1)           The
total number of shares of stock which the Corporation shall have authority to
issue is One Hundred Five Million (200,000,000) shares divided into the
following classes:

       

      (a)           One
Hundred Million (195,000,000) shares of Common Stock with a par value of one
cent ($0.01) per share; and

       

      (b)           Five
Million (5,000,000) shares of Preferred Stock with a par value of one cent
($0.01) per share.”

       

      3.           That
thereafter, pursuant to resolution of the Board of Directors, the Annual Meeting
of stockholders of the Corporation was duly called and held on May 27, 2009,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware, at which meeting the requisite number of shares as required
by statute were voted in favor of the amendment.  The foregoing
amendment to the Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware.

       

      4.           The
text of the prior Restated Certificate of Incorporation of the Corporation, as
amended, is restated to read in its entirety as follows:

       

      FIRST.                                The
name of this corporation is Century Aluminum Company (the
“Corporation”).

       

      SECOND.                                The
address of the Corporation’s registered office in the State of Delaware is 2711
Centerville Road, Suite 400, in the City of Wilmington, County of New Castle,
19808.  The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      THIRD.                  The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.

       

      FOURTH.                                (1)           The
total number of shares of stock which the Corporation shall have authority to
issue is One Hundred Five Million (200,000,000) shares divided into the
following classes:

      (a)           One
Hundred Million (195,000,000) shares of Common Stock with a par value of one
cent ($0.01) per share; and

       

      (b)           Five
Million (5,000,000) shares of Preferred Stock with a par value of one cent
($0.01) per share.

       

      (2)           The
Board of Directors is authorized, subject to limitations prescribed by law, to
provide for the issuance of Preferred Stock from time to time in one or more
series with such distinctive serial designations, rights, preferences, and
limitations of the shares of each such series as the Board of Directors shall
establish, by adopting a resolution and by filing a certificate of designations
pursuant to the General Corporation Law of the State of Delaware.  The
authority of the Board of Directors with respect to each series shall, to the
extent allowed by such law, include the authority to establish and fix the
following:

       

      (a)           The
number of shares initially constituting the series and the distinctive
designation of that series;

       

      (b)           The
extent, if any, to which the shares of that series shall have voting rights,
whether none, full, fractional or otherwise limited;

       

      (c)           Whether
the shares of that series shall be entitled to receive dividends (which may be
cumulative or noncumulative) and, if so, the rate or rates, the conditions, and
the times payable and whether payable in preference to, or in some other
relation to, the dividends payable on any other class or classes or any other
series of the same or any other class or classes of stock of the
Corporation;

       

      (d)           The
rights of the shares of that series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, or upon any
distribution of its assets;

       

      (e)           Whether
the shares of that series shall have conversion privileges and, if so, the terms
and conditions of such conversion privileges, including provision, if any, for
adjustment of the conversion rate and for payment of additional amounts by
holders of Preferred Stock of that series upon exercise of such conversion
privileges;

       

      (f)           Whether
or not the shares of that series shall be redeemable, and, if so, the price at
and the terms and conditions upon which such shares shall be redeemable, and
whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund; and


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (g)           Such
other preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof.

       

      Notwithstanding
the fixing of the number of shares constituting a particular series upon the
issuance thereof, the Board of Directors may at any time thereafter authorize
the issuance of additional shares of the same series or may reduce the number of
shares constituting such series (but not below the number of shares thereof then
outstanding).

       

      An
existing Certificate of Designation designating a series of preferred stock is
annexed hereto.

       

      FIFTH.                      (1)           The
business and affairs of the Corporation shall be managed under the direction of
the Board of Directors consisting of not less than three (3) nor more than
eleven (11) directors.  The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed and determined from time to time by resolution adopted by the vote of a
majority of the total number of directors.

       

      (2)           The
Board of Directors shall be divided into three classes:  Class I,
Class II and Class III, which shall be as nearly equal in number as
possible.  Each director shall serve for a term ending on the date of
the third annual meeting of stockholders following the annual meeting at which
such director was elected; provided, however, that each
initial director in Class I shall hold office until the annual meeting of
stockholders in 1997; each initial director in Class II shall hold office
until the annual meeting of stockholders in 1998; and each initial director in
Class III shall hold office until the annual meeting of stockholders in
1999.

       

      (3)           In
the event of any increase or decrease in the authorized number of directors, (a)
each director than serving as such shall nevertheless continue as a director of
the class of which he is a member until the expiration of his current term, or
his earlier resignation, retirement, removal from office, disqualification or
death, and (b) the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible.

       

      (4)           Notwithstanding
any of the foregoing provisions of this Article FIFTH, each director shall
serve until his successor is elected and qualified or until his earlier
resignation, retirement, removal from office, disqualification or
death.

       

      (5)           Should
a vacancy occur or be created, whether arising through resignation, retirement,
removal from office, disqualification or death or through an increase in the
number of directors, such vacancy shall be filled by the affirmative vote of at
least a majority of the directors remaining in office, though they constitute
less than a quorum of the Board of Directors and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of the class to which they have been elected expires.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (6)           Any
director or the entire Board of Directors may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at
least 66-2/3% of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors.

       

      (7)           Notwithstanding
any other provision of this Restated Certificate of Incorporation or any other
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of the capital stock of the Corporation required by law, this Restated
Certificate of Incorporation or any designation of Preferred Stock, the
affirmative vote of the holders of at least 66-2/3% of the combined voting power
of the Corporation’s outstanding voting securities, voting together as a single
class, shall be required to alter, amend or repeal this
Article FIFTH.

       

      SIXTH.                  In
furtherance and not in limitation of the powers conferred by law, the Board of
Directors is expressly authorized to make, alter, amend and repeal the By-laws
of the Corporation, subject to the power of the holders of the capital stock of
the Corporation to alter, amend or repeal the By-laws; provided, however, that with
respect to the power of the holders of the capital stock of the Corporation to
alter, amend or repeal the By-laws of the Corporation, notwithstanding any other
provision of this Restated Certificate of Incorporation or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of the capital
stock of the Corporation required by law, this Restated Certificate of
Corporation or any designation of Preferred Stock, the affirmative vote of the
holders of at least 66-2/3% of the combined voting power of the Corporation’s
outstanding voting securities, voting together as a single class, shall be
required to (i) alter, amend or repeal any provision of the By-laws, or (ii)
alter, amend or repeal any provision of this Article SIXTH.

       

      SEVENTH.            Subject
to the rights of the holders of any series of Preferred Stock with respect to
such series of Preferred Stock, (A) any action required or permitted to be taken
by the stockholders of the Corporation must be effected at an annual or special
meeting of stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders and (B) special meetings of stockholders
of the Corporation may be called only by the Board of Directors of the
Corporation or the Executive Committee of the Board of Directors.  The
stockholders of the Corporation may not call a special meeting of stockholders
of the Corporation or require the Board of Directors or Executive Committee of
the Board of Directors to call a special meeting of the stockholders of the
Corporation.  The Board of Directors or the Executive Committee of the
Board of Directors may call a special meeting of stockholders of the Corporation
only by giving written notice to the stockholders of the
Corporation.  Such notice must specify the purpose or purposes for
which the meeting is called.  The stockholders of the Corporation may
not submit any matters or proposals for consideration at any special
meeting.  Notwithstanding any other provision of this Restated
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the capital stock of the
Corporation required by law, this Restated Certificate of Incorporation or any
designation of Preferred Stock, the affirmative vote of the holders of at least
66-2/3% of the combined voting power of the Corporation’s outstanding voting
securities, voting together as a single class, shall be required to alter, amend
or repeal this Article SEVENTH.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      EIGHTH.               Notwithstanding
any other provisions of this Restated Certificate of Incorporation, the vote of
stockholders of the Corporation required to approve any Business Combination (as
hereinafter defined) shall be as set forth in this
Article EIGHTH.

       

      (1)           In
addition to any affirmative vote required by law or by this Restated Certificate
of Incorporation, and except as otherwise expressly provided in clause (3)
of this Article EIGHTH:

       

      (a)           any
merger or consolidation of the Corporation or any Subsidiary with or into (i)
any Interested Stockholder or (ii) any other entity (whether or not itself an
Interested Stockholder) that is, or after such merger or consolidation would be,
an Affiliate or Associate of an Interested Stockholder; or

       

      (b)           any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to, by or with any Interested
Stockholder of any assets of or to the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more; or

       

      (c)           the
issuance or transfer by the Corporation or any Subsidiary (in one transaction or
a series of transactions) of any securities of the Corporation or any Subsidiary
to any Interested Stockholder in exchange for cash, securities or other property
(or a combination thereof); or

       

      (d)           the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or

       

      (e)           any
reclassification of securities (including any reverse stock split), or
recapitalization or reorganization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries, or any other
transaction (whether or not with or into or otherwise involving any Interested
Stockholder), that in any such case has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class or
series of stock or securities convertible into stock of the Corporation or any
Subsidiary that is directly or indirectly beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder;
or

       

      (f)           any
agreement, contract or other arrangement providing directly or indirectly for
any of the foregoing;

       

      shall not
be consummated without the affirmative vote of the holders of at least 66-2/3%
of the combined voting power of the Corporation’s voting securities (“Voting
Stock”) then outstanding voting together as a single class.  Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

                      (2)           The
term “Business Combination” as used in this Article EIGHTH shall mean any
transaction that is referred to in any one or more of paragraphs (a) through (f)
of clause (1) of this Article EIGHTH.

       

      (3)           The
provisions of clause (1) of this Article EIGHTH shall not be applicable to
any particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by law and any other provision of this
Restated Certificate of Incorporation, if all the conditions specified in either
of the following paragraphs (a) or (b) are met:

       

      (a)           such
Business Combination shall have been approved by a majority of the Disinterested
Directors; or

       

      (b)           all
of the six conditions specified in the following clauses (i) through (vi) shall
have been met:

       

      (i)           the
transaction constituting the Business Combination shall provide for a
consideration to be received by holders of Common Stock in exchange for all
their shares of Common Stock, and the aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the Business Combination of
any consideration other than cash to be received per share by holders of Common
Stock in such Business Combination shall be at least equal to the higher of the
following:

       

      (A)           (if
applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers’ fees) paid in order to acquire any shares of Common Stock beneficially owned by the
Interested Stockholder that were acquired (I) within the two-year period
immediately prior to the Announcement Date or (II) in the transaction in which
it became an Interested Stockholder, whichever is higher; and

       

      (B)           the
Fair Market Value per share of Common Stock on the Announcement Date or on the
Determination Date, whichever is higher, multiplied by the ratio of (I) the
highest per share price (including brokerage commissions, transfer taxes and
soliciting dealers’ fees) paid in order to acquire any share of Common Stock
already beneficially owned by the Interested Stockholder to (II) the Fair Market
Value per share of Common Stock immediately prior to the time when such
Interested Stockholder first became a beneficial owner of any shares of Common
Stock;

       

      provided, however, that, as
used in the foregoing calculations, all prices per share shall be adjusted to
reflect any subsequent stock splits, stock dividends or other similar corporate
actions;


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (ii)           the
transaction constituting the Business Combination shall provide for a
consideration to be received by holders of any class or series of outstanding
Voting Stock other than Common Stock in exchange for all their shares of such
Voting Stock, and the aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of any consideration
other than cash to be received per share by holders of shares of such Voting
Stock in such Business Combination shall be at least equal to the highest of the
following (it being intended that the requirements of this paragraph (b)(ii)
shall be required to be met with respect to every class and series of such
outstanding Voting Stock, whether or not the Interested Stockholder beneficially
owns any shares of a particular class or series of Voting Stock):

       

      (A)           (if
applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers’ fees) paid in order to acquire any share
of such class or series of Voting Stock beneficially owned by the Interested
Stockholder that were acquired (I) within the two-year period immediately
prior to the Announcement Date or (II) in the transaction in which it
became an Interested Stockholder, whichever is higher;

       

      (B)           (if
applicable) the highest preferential amount per share to which the holders of
shares of such class or series of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation regardless of whether the Business Combination to be consummated
constitutes such an event; and

       

      (C)           the
Fair Market Value per share of such class or series of Voting Stock on the
Announcement Date or on the Determination Date, whichever is higher, multiplied
by the ratio of (I) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers’ fees) paid in order to
acquire any share of such class or series of Voting Stock already beneficially
owned by the Interested Stockholder to (II) the Fair Market Value per share of
such class or series of Voting Stock immediately prior to the time when such
Interested Stockholder first became a beneficial owner of any shares of such
class or series of Voting Stock;

       

      provided, however, that, as
used in the foregoing calculations, all prices per share shall be adjusted to
reflect any subsequent stock splits, stock dividends or other similar corporate
actions;

       

      (iii)           the
consideration to be received by holders of a particular class or series of
outstanding Voting Stock (including Common


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      Stock)
shall be in cash or in the same form as was previously paid in order to acquire
shares of such class or series of Voting Stock that are beneficially owned by
the Interested Stockholder, and if the Interested Stockholder beneficially owns
shares of any class or series of Voting Stock that were acquired with varying
forms of consideration, the form of consideration to be received by holders of
such class or series of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class or series of Voting Stock
beneficially owned by it;

       

      (iv)           after
such Interested Stockholder has become an Interested Stockholder and prior to
the consummation of such Business Combination:

       

      (A)           the
Interested Stockholder shall have taken steps to ensure that the Board of
Directors has included at all times representation by Disinterested Director(s)
proportionate to the ratio that the shares of Voting Stock which from time to
time are owned by holders of Voting Stock who are not Interested Stockholders
bear to all shares of Voting Stock outstanding at such respective times (with a
Disinterested Director to occupy any resulting fractional Board
position);

       

      (B)           within
the two years prior to the Announcement Date except as approved by a majority of
the Disinterested Directors, there shall have been no failure to declare and pay
at the regular dates therefor the full amount of any dividends (whether or not
cumulative) payable on the outstanding Preferred Stock or class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation;

       

      (C)           within
the two years prior to the Announcement Date there shall have been (I) no
reduction in the annual rate of dividends paid on the Common Stock (except as
necessary to reflect any subdivision of the Common Stock), except as approved by
a majority of the Disinterested Directors, and (II) an increase in such
annual rate of dividends (as necessary to prevent any such reduction) in the
event of any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that has the effect
of reducing the number of outstanding shares of the Common Stock, unless the
failure so to increase such annual rate is approved by a majority of the
Disinterested Directors; and

       

      (D)           such
Interested Stockholder shall not have become the beneficial owner of any
additional shares of Voting Stock or securities convertible into or exchangeable
for Voting Stock,
except as part of the transaction that resulted in such Interested Stockholder
becoming an Interested Stockholder;


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (v)           after
such Interested Stockholder has become an Interested Stockholder, such
Interested Stockholder shall not have (A) received the benefit, directly or
indirectly (except proportionately as a stockholder and except in the ordinary
course of business or as part of a supplier/customer relationship), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise,
(B) made any major change in the Corporation’s business or equity capital
structure without the unanimous approval of the Disinterested Directors, or
(C) used any asset of the Corporation as collateral, or compensating
balances, directly or indirectly, for any obligation of such Interested
Stockholder; and

       

      (vi)           a
proxy or information statement describing the proposed Business Combination and
complying with the requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to public stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent provisions). Such proxy statement
shall contain:

       

      (A)           at
the front thereof, in a prominent place, any recommendations as to the
advisability (or inadvisability) of the Business Combination which the
Disinterested Directors, or any of them, may have furnished in writing;
and

       

      (B)           if
deemed advisable by a majority of the Disinterested Directors, an opinion of a
reputable investment banking or appraisal firm as to the fairness (or lack of
fairness) of the terms of such Business Combination, from the point of view of
holders of shares of Voting Stock who are not Interested Shareholders (such
investment banking or appraisal firm to be selected by a majority of the
Disinterested Directors, to be a firm which has not previously been associated
with or rendered services to or acted as manager of an underwriting or as agent
for an Interested Stockholder, to be furnished with all information it
reasonably requests and to be paid a reasonable fee for its services upon
receipt by the Corporation of such opinion).

       

      (4)           For
purposes of this Article EIGHTH:

          

      
            (a)           A
“person” shall mean any individual, firm, corporation, partnership, trust or
other entity.

         

      


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (b)           “Interested
Stockholder” shall mean any person (other than the Corporation or any
Subsidiary; and other than any profit sharing, employee stock ownership, or any
other employee benefit plan of the Corporation or any Subsidiary, or any trustee
of or fiduciary with respect to any such plan when acting in such capacity) who
or that:

       

      (i)           is
the beneficial owner, directly or indirectly, of 10% or more of the combined
voting power of the then outstanding Voting Stock; or

       

      (ii)           is
an Affiliate of the Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial owner, directly or
indirectly, of 10% or more of the combined voting power of the then outstanding
Voting Stock; or

       

      (iii)           is
an assignee of or has otherwise succeeded to the beneficial ownership of any
shares of Voting Stock that were at any time within the two-year period
immediately prior to the date in question beneficially owned by an Interested
Stockholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.

       

      (c)           A
person shall be a “beneficial owner” of any Voting Stock:

       

      (i)           that
such person or any of its Affiliates or Associates beneficially owns, directly
or indirectly; or

       

      (ii)           that
such person or any of its Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately or only after the passage
of time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (B) the right to vote or to direct the vote pursuant to any
agreement, arrangement or understanding; or

       

      (iii)           that
is beneficially owned, directly or indirectly, by any other person with which
such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purposes of acquiring, holding, voting or
disposing of any shares of Voting Stock.

       

      (d)           For
the purposes of determining whether a person is an Interested Stockholder
pursuant to paragraph (b) of this clause (4), the number of shares of Voting
Stock deemed to be outstanding shall include all shares deemed owned by such
person through application of paragraph (c) of this clause (4) but shall not
include any other shares of Voting Stock that may be issuable to other persons
upon exercise of conversion rights, exchange rights, warrants or options, or
otherwise.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (e)           “Affiliate”
and “Associate” shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on the date hereof.

       

      (f)           “Subsidiary”
shall mean any corporation a majority of whose outstanding stock having ordinary
voting power in the election of directors is owned by the Corporation, by a
Subsidiary or by the Corporation and one or more Subsidiaries; provided, however, that for the
purposes of the definition of Interested Stockholder set forth in
paragraph (b) of this clause (4), the term “Subsidiary” shall mean
only a corporation of which a majority of each class of equity security is owned
by the Corporation, by a Subsidiary or by the Corporation and one or more
Subsidiaries.

       

      (g)           “Disinterested
Director” means any member of the Board of Directors of the Corporation who (1)
is unaffiliated with, and not a nominee of, the Interested Stockholder proposing
to engage in the Business Combination, and any successor of a Disinterested
Director who is unaffiliated with, and not a nominee of, such Interested
Stockholder and is recommended to succeed a Disinterested Director by a majority
of Disinterested Directors then on the Board of Directors and (2) is not an
employee of the Corporation.

       

      (h)           “Fair
Market Value” means:  (1) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date in question
of a share of such stock on the New York Stock Exchange Composite Tape, or, if
such stock is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal United States
national securities exchange registered under the Securities Exchange Act of
1934 on which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sale price or bid quotation with respect to a
share of such stock during the 30-day period immediately preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or, if no such prices or quotations
are available, the fair market value on the date in question of a share of such
stock as determined by a majority of the Disinterested Directors in good faith;
and (2) in the case of property other than cash or stock, the fair market value
of such property on the date in question as determined by a majority of the
Disinterested Directors in good faith.

       

      (i)           “Announcement
Date” means the date of first public announcement of the proposal of the
Business Combination.

       

      (j)           “Determination
Date” means the date on which the Interested Stockholder became an Interested
Stockholder.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (5)           A
majority of the Disinterested Directors of the Corporation shall have the power
and duty to determine, on the basis of information known to them after
reasonable inquiry, all facts necessary to determine compliance with this
Article EIGHTH, including, without limitation, (a) whether a person is an
Interested Stockholder, (b) the number of shares of Voting Stock beneficially
owned by any person, (c) whether a person is an Affiliate or Associate of
another person, (d) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in
paragraphs (c)(ii) and (iii) of clause (4), (e) whether the assets subject
to any Business Combination have an aggregate fair market value of $1,000,000 or
more, and (f) whether the requirements of clause (3) of this
Article EIGHTH have been met with respect to any Business Combination; and
the good faith determination of a majority of the Disinterested Directors on
such matters shall be conclusive and binding for all purposes of this
Article EIGHTH.

       

      (6)           Notwithstanding
any other provision of this Restated Certificate of Incorporation or any other
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of the capital stock of the Corporation required by law, this Restated
Certificate of Incorporation or any designation of Preferred Stock, the
affirmative vote of the holders of at least 66-2/3% of the combined voting power
of the Corporation’s outstanding voting securities, voting together as a single
class, shall be required to alter, amend or repeal this
Article EIGHTH.

       

      NINTH.                  A
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal
benefit.  If the General Corporation Law of the State of Delaware
hereafter is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the Corporation, in
addition to the limitations on personal liability provided herein, shall be
limited to the fullest extent permitted by the amended General Corporation Law
of the State of Delaware.  Any repeal or modification of this
paragraph by the stockholders of the Corporation shall be prospective only, and
shall not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or
modification.

       

      TENTH.                 The
Corporation shall, to the fullest extent permitted by Section 145 of the
General Corporation Law of the State of Delaware, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any By-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

                    IN WITNESS WHEREOF, the
undersigned has caused this Restated Certificate of Incorporation to be signed
this 27th day of May, 2009.

    
      


      
        
          	
                  CENTURY
      ALUMINUM COMPANY

                
	
                   

                  By:

                	
                   
      

                  /s/ William J. Leatherberry

                
	
                  Name:   
      William J. Leatherberry

                
	
                  Title:     
      Senior Vice President,   General Counsel, and Assistant
      Secretary

                


        

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

      Annex
to Restated Certificate of Incorporation

      of
Century Aluminum Company

       

      CERTIFICATE
OF DESIGNATION, PREFERENCES AND RIGHTS OF

      8%
CUMULATIVE CONVERTIBLE PREFERRED STOCK OF

      CENTURY
ALUMINUM COMPANY


       

      SECTION
1.         Designation, Amount and Par
Value.  The series of Preferred Stock shall be designated as
the 8% Cumulative Convertible Preferred Stock (the “Preferred Stock”), and the
number of shares so designated shall be 500,000.  The par value of
each share of Preferred Stock shall be $0.01.  Each share of Preferred
Stock shall have a stated value of $50.00 per share (the “Stated
Value”).

       

      SECTION
2.         Dividends.

       

      (a)           Holders
of Preferred Stock shall be entitled to receive and the Company shall pay, when,
as and if declared by the Board of Directors out of funds legally available
therefor, cumulative cash dividends at the rate per share (as a percentage of
the Stated Value per share) equal to 8% per annum, payable quarterly in arrears
on each March 31, June 30, September 30 and December 31 (each, a “Dividend
Payment Date”) and on the Conversion Date (as hereinafter
defined).  Dividends on the Preferred Stock shall accrue daily
commencing on the Original Issue Date (as defined in Section 7) and shall
be deemed to accrue whether or not earned or declared and whether or not there
are profits, surplus or other funds of the Company legally available for the
payment of dividends.  The person that is shown on the Company’s
records as the holder of the Preferred Stock on an applicable record date (the
“Holder”) for any dividend payment will be entitled to receive such dividend
payment and any other accrued and unpaid dividends which accrued prior to such
Dividend Payment Date, without regard to any sale or disposition of such
Preferred Stock subsequent to the applicable record date but prior to the
applicable Dividend Payment Date.  Except as otherwise provided
herein, if at any time the Company pays less than the total amount of dividends
then accrued on the Preferred Stock, such payment shall be distributed ratably
among the Holders of the Preferred Stock based upon the number of shares held by
each Holder.

       

      (b)           So
long as any Preferred Stock shall remain outstanding, unless all accrued
dividends payable on the Preferred Stock for all prior Dividend Payment Dates
shall have been paid, neither the Company nor any subsidiary thereof shall
redeem, purchase or otherwise acquire, directly or indirectly, any Common Stock
(as defined in Section 5) or any shares of any other capital stock of the
Company, ranking junior to the Preferred Stock in respect of dividends or
liquidation preference, except the repurchase of shares of capital stock of the
Company held by officers, directors or employees or former officers, directors
or employees (or their estates or beneficiaries), upon death, disability,
retirement, severance or termination of employment, or in order to satisfy tax
withholding obligations of such persons upon the exercise of options or the
vesting of performance shares or pursuant to any agreement under which such
shares were issued, nor shall the Company directly or indirectly pay or declare
any cash dividend or make any cash distribution (other than a dividend or
distribution described in Section 5) upon, nor shall
any cash distribution be made in respect of, any Common Stock or any other
capital stock of the Company ranking junior to the Preferred Stock in respect of
dividends or liquidation preference, nor shall any monies be set aside for or
applied to the purchase or redemption (through a sinking fund or otherwise) of
any Common Stock or any shares of any other capital stock of the Company,
ranking junior to the Preferred Stock in respect of dividends or liquidation
preference, except as described above.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      SECTION
3.         Voting
Rights.  Except as otherwise provided herein and as otherwise
provided by law, the Preferred Stock shall have no voting rights.  So
long as any shares of Preferred Stock are outstanding, the Company shall not,
without the affirmative vote of the Holders of a majority of the shares of
Preferred Stock then outstanding, (i) alter or change adversely the powers,
preferences or rights given to the Preferred Stock, through an amendment to the
Company’s Certificate of Incorporation or otherwise, (ii) authorize or create
any class of stock ranking as to dividends or distribution of assets upon a
Liquidation (as defined below) senior to, prior to or pari passu with the Preferred
Stock, or (iii) reorganize or reclassify the capital stock of the Company or
merge or consolidate with or into any other company or entity.

       

      SECTION
4.         Liquidation.  Upon
any liquidation, dissolution or winding-up of the Company, whether voluntary or
involuntary (a “Liquidation”), the Holders of shares of Preferred Stock shall be
entitled to receive out of the assets of the Company, whether such assets are
capital or surplus, for each share of Preferred Stock an amount equal to the
Stated Value, plus an amount equal to the then accrued but unpaid dividends per
share, whether declared or not, but without interest (“Liquidation Preference”),
before any distribution or payment shall be made to the holders of Common Stock
or any other capital stock of the Company junior in respect of distribution of
assets, and if the assets of the Company shall be insufficient to pay in full
such amounts, then the entire assets to be distributed shall be distributed
among the Holders of Preferred Stock ratably in accordance with the respective
amounts that would be payable on such shares if all amounts payable thereon were
paid in full.  A sale, conveyance or disposition of all or
substantially all of the assets of the Company, other than to a domestic
subsidiary of the Company, shall be deemed a Liquidation; however, a
consolidation or merger of the Company with or into any other company or
companies shall not be treated as a Liquidation, but instead shall be subject to
the provisions of Section 5.  The Company shall mail written
notice of any such Liquidation, not less than 30 days prior to the payment date
stated therein, to each record Holder of Preferred Stock.

       

      SECTION
5.         Conversion.

       

      (a)           Right to
Convert.  Each Holder of the Preferred Stock shall have the
right at any time and from time to time, at the option of such Holder, to
convert any or all Preferred Stock held by such Holder, into such number of
fully paid, validly issued and nonassessable shares of common stock, par value
$0.01 per share, of the Company (“Common Stock”), free and clear of any liens,
claims or encumbrances created by the Company, as is determined by dividing (i)
the Liquidation Preference times the number of shares of Preferred Stock being
converted (“Conversion Amount”), by (ii) the applicable Conversion Price
(determined as hereinafter provided) in effect on the Conversion Date
immediately following such conversion, the rights of the Holders of converted
Preferred Stock shall cease and the persons entitled to receive the Common Stock
upon the conversion of Preferred Stock shall be treated for all purposes
as then having become the owners of such Common Stock.  The right to
convert any shares of Preferred Stock called for redemption under Section 6
shall continue until and shall expire at 4:30 New York time on the last business
day prior to the redemption date.  Any conversion of Preferred Stock
by any Holder shall be of a minimum number of 1,000 shares of Preferred Stock,
except in the event that any Holder holds less than 1,000 shares of Preferred
Stock, in which case, all such shares held by such Holder may be
converted.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (b)           Mechanics of
Conversion.  To convert Preferred Stock into Common Stock, the
Holder shall give written notice (“Conversion Notice”) to the Company (which
Conversion Notice may be given by facsimile transmission no later than the
Conversion Date) stating that such Holder elects to convert the same and shall
state therein the number of shares of Preferred Stock to be converted and the
name or names in which such holder wishes the certificate or certificates for
Common Stock to be issued (the conversion date specified in such Conversion
Notice shall be referred to herein as the “Conversion Date”).  As soon
as possible after delivery of the Conversion Notice, such Holder shall surrender
the certificate or certificates representing the Preferred Stock being
converted, duly endorsed, at the office of the Company or, if identified in
writing to all the Holders by the Company, at the offices of any transfer agent
for the Preferred Stock.  The Company shall, upon receipt of such
Conversion Notice, issue and deliver to or upon the order of such Holder,
against delivery of the certificates representing the Preferred Stock which have
been converted, a certificate or certificates for the number of shares of Common
Stock to which such Holder shall be entitled (with the number of and
denomination of such certificates designated by such Holder), and the Company
shall immediately issue and deliver to such Holder a certificate or certificates
for the number of shares of Preferred Stock (including any fractional shares)
which such Holder has not yet elected to convert hereunder but which are
evidenced in part by the certificate(s) delivered to the Company in connection
with such Conversion Notice.  The Company shall not be obligated to
issue certificates evidencing the shares of Common Stock issuable upon such
conversion unless certificates evidencing such shares of the Preferred Stock
being converted are either delivered to the Company or its transfer agent or the
Holder notifies the Company or any such transfer agent that such certificates
have been lost, stolen or destroyed and executes an agreement reasonably
satisfactory to the Company to indemnify the Company from any loss incurred by
it in connection therewith.  In lieu of delivering physical
certificates representing the Common Stock issuable upon conversion of Preferred
Stock, provided the Company’s transfer agent is participating in the Depository
Trust Company (“DTC”) Fast Automated Securities Transfer program, upon request
of the Holder, the Company shall use its best efforts to cause its transfer
agent to electronically transmit the Common Stock issuable upon conversion to
the Holder, by crediting the account of the Holder’s prime broker with DTC
through its Deposit Withdrawal Agent Commission (“DWAC”) system.  The
parties agree to coordinate with DTC to accomplish this
objective.  The conversion pursuant to this Section 5 shall be
deemed to have been made immediately prior to the close of business on the
Conversion Date.  The person or persons entitled to receive the Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such Common Stock at the close of business on the
Conversion Date.  The Company’s obligation to issue Common Stock upon
conversion of Preferred Stock shall, except with respect to the Holder’s
compliance with the notice and delivery requirements set forth above in this
Section 5(b), be absolute, is independent of any covenant of the Holder of
Preferred Stock, and shall not be subject to:  (i) any offset or
defense, or (ii) any claims against the Holders of Preferred Stock whether
pursuant to this Certificate of Designation, the Purchase Agreement (as defined
in Section 7) or otherwise.  In the event that the Company
disputes the Holder’s computation of the number of shares of Common Stock to be
received, then the Company shall deliver to the Holder the number of shares of
Common Stock not in dispute and shall seek to mutually agree with the Holder in
good faith on the correct number of shares to be
received.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (c)           Determination of Conversion
Price.  The Conversion Price applicable with respect to the
Preferred Stock (the “Conversion Price”), subject to the adjustments set forth
below, shall be $17.92 per share.

       

      (d)           Stock Splits; Dividends;
Adjustments.

       

      (i)           If
the Company, at any time while the Preferred Stock is outstanding shall, (A) pay
a stock dividend or otherwise make a distribution or distributions on any equity
securities (including instruments or securities convertible into or exchangeable
for such equity securities) in shares of Common Stock, (B) subdivide outstanding
Common Stock into a larger number of shares, or (C) combine outstanding Common
Stock into a smaller number of shares, then the Conversion Price shall be
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding immediately before such event and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
after such event.  Any adjustment made pursuant to this
Section 5(d)(i) shall become effective immediately after the record date
for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination.

       

      (ii)           In
the event that the Company issues or sells any Common Stock or securities which
are convertible into or exchangeable for its Common Stock (other than the
Preferred Stock), or any warrants or other rights to subscribe for or to
purchase or any options for the purchase of its Common Stock (“Convertible
Securities”) (other than shares or options issued or which may be issued
pursuant to (A) the Company’s current or future employee or director stock
incentive or option plans or shares issued upon exercise of options, warrants or
rights or upon the vesting of performance shares outstanding on the date of the
Purchase Agreement and listed in the Company’s most recent periodic report filed
under the Securities Exchange Act of 1934, as amended, (B) arrangements with the
Holders of Preferred Stock, or (C) upon the conversion of the Preferred Stock)
(“Exempted Issuances”) at an effective purchase price per share which is less
than the Per Share Market Value (as defined in Section 7) of the Common
Stock on the Trading Day next preceding such issue or sale or, in the case of
issuances to holders of its Common Stock, the record date fixed for the
determination of stockholders entitled to receive Common Stock or Convertible
Securities (the “Fair Market Price”), the Conversion Price in effect immediately
prior to such issue or sale or record date, as applicable, shall be reduced
effective concurrently with such issue or sale to an amount determined by
multiplying the Conversion Price then in effect by a fraction, (1) the numerator
of which shall be the sum of (x) the number of shares of Common Stock
outstanding immediately prior to such issue or sale and (y) the number of shares
of Common Stock which the aggregate consideration received by the Company for
such additional
shares would purchase at the Fair Market Price, and (2) the denominator of which
shall be the number of shares of Common Stock and Convertible Securities of the
Company outstanding immediately after such issue or sale.  For the
purposes of the foregoing adjustment, shares of Common Stock owned by or held on
account of the Company or any subsidiary shall not be deemed outstanding for the
purpose of any such computation.  In addition, for the purposes of the
foregoing adjustment, in the case of the issuance of any Convertible Securities,
the maximum number of shares of Common Stock issuable upon exercise, exchange or
conversion of such Convertible Securities shall be deemed to be outstanding, and
the aggregate consideration received by the Company for the issuance or sale of
such Convertible Securities shall be deemed to include any consideration that
would be received by the Company in connection with the exercise, exchange or
conversion of such Convertible Securities, provided that no further adjustment
shall be made upon the actual issuance of Common Stock upon exercise, exchange
or conversion of such Convertible Securities.  However, upon the
expiration of any right or warrant to purchase Common Stock the issuance of
which resulted in an adjustment in the Conversion Price designated in
Section 5(c) pursuant to this Section 5(d)(ii), if any such right or
warrant shall expire and shall not have been exercised, the Conversion Price
designated in Section 5(c) shall immediately upon such expiration be
recomputed and effective immediately upon such expiration be increased to the
price which it would have been (but reflecting any other adjustments in the
Conversion Price made pursuant to the provisions of this Section 5 after
the issuance of such rights or warrants) had the adjustment of the Conversion
Price made upon the issuance of such rights or warrants been made on the basis
of offering for subscription or purchase only that number of shares of Common
Stock actually purchased upon the exercise of such rights or warrants actually
exercised.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (iii)           If
the Company, at any time while the Preferred Stock is outstanding, shall
distribute to all holders of Common Stock evidence of its indebtedness or assets
or cash (other than ordinary cash dividends) or rights or warrants to subscribe
for or purchase any security of the Company or any of its subsidiaries
(excluding those referred to in Sections 5(d)(i) or 5(d)(ii) above), then
concurrently with such distributions to holders of Common Stock, the Company
shall distribute to Holders of the Preferred Stock, the amount of such
indebtedness, assets, cash or rights or warrants which the Holders of Preferred
Stock would have received had they converted all their Preferred Stock into
Common Stock immediately prior to the record date for such
distribution.

       

      (iv)           All
calculations under this Section 5 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be.

       

      (v)           Whenever
the Conversion Price is adjusted pursuant to this Section 5(d), the Company
shall promptly mail to each Holder of Preferred Stock a notice setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment.

       

      (vi)           No
adjustment in the Conversion Price shall reduce the Conversion Price below the
then par value of the Common Stock.

       

      (vii)          The
Company from time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least 20 Trading Days and if the reduction is
irrevocable during the period.  Whenever the Conversion Price is
reduced, the Company shall mail to the Holders of Preferred Stock a notice of
the reduction.  The Company shall mail, first class, postage prepaid,
the notice at least 15 days before the date the reduced Conversion Price takes
effect.  The notice shall state the reduced Conversion Price and the
period it will be in effect.  A reduction of the Conversion Price does
not change or adjust the Conversion Price otherwise in effect for purposes of
Section 5(d)(i), (ii), or (iii).

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (viii)         If:

       

      A.            In
the event of any taking by the Company of a record date of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, any security or right
convertible into or entitling the holder thereof to receive additional shares of
Common Stock, or any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive
any other right; or

       

      B.            The
Company shall declare a special nonrecurring cash dividend on or a redemption of
its Common Stock; or

       

      C.            The
approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock of the Company (other than a
subdivision or combination of the outstanding shares of Common Stock), any
consolidation or merger to which the Company is a party, any sale or transfer of
all or substantially all of the assets of the Company, or any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or
property; or

       

      D.            The
Company shall authorize the voluntary or involuntary dissolution, liquidation or
winding-up of the affairs of the Company;

       

      then the
Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Preferred Stock, and shall cause to be mailed to the
Holders of Preferred Stock at their last addresses as they shall appear upon the
stock books of the Company, at least 15 calendar days prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding-up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding-up; provided, however, that
the failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (e)          
Reorganization, Merger
or Going Private.  In case of any reorganization or
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another person, any compulsory share exchange
pursuant to which the Common Stock is converted into other securities, cash or
property or a “going private” transaction under Rule 13e-3 promulgated
pursuant to the Exchange Act, the Holders of the Preferred Stock then
outstanding shall be deemed to have converted their Preferred Stock into Common
Stock immediately prior to such reorganization, reclassification, consolidation,
merger, or share exchange and shall have the right thereafter to convert such
shares only into the shares of stock and other securities and property
receivable upon or deemed to be held by holders of Common Stock following such
reorganization, reclassification, consolidation, merger or share exchange, and
the Holders of the Preferred Stock shall be entitled upon such event to receive
such amount of securities or property as the shares of the Common Stock of the
Company into which such shares of Preferred Stock could have been converted
immediately prior to such reorganization, reclassification, consolidation,
merger or share exchange would have been entitled.  The terms of any
such reorganization, reclassification, consolidation, merger or share exchange
shall include such terms so as to continue to give to the Holder of Preferred
Stock the right to receive the securities or property set forth in this
Section 5(e) upon any conversion following such reorganization,
reclassification, consolidation, merger or share exchange.  This
provision shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, or share exchanges.

       

      (f)           
Other
Actions.  The Company will not avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Company and will at all times in good faith assist in the
carrying out of all of the provisions of this Section 5 and in the taking of all
action as may be necessary or appropriate in order to protect the conversion
rights of the Holders of the Preferred Stock against impairment.

       

      (g)          
Reservation of
Shares.  The Company covenants that it will at all times
reserve and keep available out of its authorized and unissued Common Stock
solely for the purpose of issuance upon conversion of Preferred Stock as herein
provided, free from preemptive rights or any other contingent purchase rights of
persons other than the Holders of Preferred Stock, such number of shares of
Common Stock as shall be issuable (taking into account the adjustments of
Section 5(d) hereof) upon the conversion of all outstanding shares of
Preferred Stock.  The Company covenants that all shares of Common
Stock that shall be so issuable shall, upon issue, be duly and validly
authorized, issued and fully paid and nonassessable.  The Company
promptly will take such corporate action as may, in the opinion of its counsel,
which may be an employee of the Company, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purpose, including without limitation engaging in best
efforts to obtain the requisite stockholder approval.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      (h)          Fractional
Shares.  Upon a conversion hereunder the Company shall not be
required to issue stock certificates representing fractions of shares of Common
Stock, but may if otherwise permitted by applicable law make a cash payment in
respect of any final fraction of a share based on the Per Share Market Value at
such time.  If the Company elects not, or is unable, to make such a
cash payment, the Holder of a share of Preferred Stock shall be entitled to
receive, in lieu of the final fraction of a share, one whole share of Common
Stock.

       

      (i)          
 Taxes.  The
issuance of certificates for shares of Common Stock on conversion of Preferred
Stock shall be made without charge to the Holders thereof for any documentary,
stamp or similar taxes that may be payable in respect of the issue or delivery
of such certificate, provided that the Company shall not be required to pay any
tax that may be payable in respect of any transfer involved in the issuance and
delivery of any such certificate upon conversion in a name other than that of
the Holder of such shares of Preferred Stock so converted and the Company shall
not be required to issue or deliver such certificates unless or until the person
or persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.

       

      (j)           
Status of Converted or
Redeemed Shares.  Shares of Preferred Stock converted into
Common Stock or redeemed shall be canceled and shall have the status of
authorized but unissued shares of Preferred Stock.

       

      (k)           Giving of
Notice.  Each Conversion Notice shall be given (i) by facsimile
and by mail, postage prepaid, addressed to the attention of the Chief Financial
Officer of the Company at the facsimile telephone number and address of the
principal place of business of the Company, (ii) by overnight courier or (iii)
by hand.  Any such notice shall be deemed given and effective upon the
earliest to occur of (1)(a) if such Conversion Notice is delivered via facsimile
prior to 4:30 p.m. (local time in New York, NY) on any date, such date or such
later date as is specified in the Conversion Notice, and (b) if such Conversion
Notice is delivered via facsimile after 4:30 p.m. (local time in New York, NY)
on any date, the next date or such later date as is specified in the Conversion
Notice, (2) if such Conversion Notice is delivered by overnight courier, two
business days after delivery to a nationally recognized overnight courier
service or (3) if such Conversion Notice is delivered by hand, upon actual
receipt.

       

      SECTION
6.         Redemption.  The
Company may, at the option of the Board of Directors, redeem all or any part of
the outstanding Preferred Stock at any time after the third anniversary of the
Original Issue Date, by paying for each share so redeemed the redemption prices
listed below, together with an amount equal to all cumulative dividends accrued
and unpaid thereon to the date fixed for redemption, provided that notice of
redemption is sent by certified mail to the Holders of the Preferred Stock to be
redeemed at least 40 but not more than 60 days prior to the date of redemption
specified in such notice, addressed to each such Holder at his/her address as it
appears in the records of the Company.  On or after the redemption
date, each Holder of shares of Preferred Stock to be redeemed shall present and
surrender his/her certificate or certificates for such shares to the Company at
the place designated in such notice and thereupon the redemption price of such
shares shall be paid to or to the order of the person whose name appears on such
certificate or certificates as the owner thereon and each surrendered
certificate shall be cancelled.  In case less than all the shares
represented by any such certificates are redeemed, a certificate
shall be issued representing the unredeemed shares.  From and after
the redemption date (unless default shall be made by the Company in payment of
the redemption price) all dividends on the shares of Preferred Stock designated
for redemption in such notice shall cease to accrue, and all rights of the
Holders thereof as stockholders of the Company, except the right to receive the
redemption price thereof upon the surrender of certificates representing the
same, without interest, shall cease and terminate and such shares shall not
thereafter be transferred (except with the consent of the Company) on the books
of the Company, and such shares shall not be deemed to be outstanding for any
purpose whatsoever.  At its election, the Company prior to the
redemption date may deposit the redemption price of the shares of Preferred
Stock so called for redemption in trust for the Holders thereof with a bank or
trust company (having a capital and surplus of not less than $500,000,000) in
which case such notice to Holders of the Preferred Stock to be redeemed shall
state the date of such deposit, shall specify the office of such bank or trust
company as the place of payment of the redemption price, and shall call upon
such Holders to surrender the certificates representing such shares at such
price on or after the date fixed in such redemption notice (which shall not be
later than the redemption date) against payment of the redemption
price.  From and after the making of such deposit, the shares of
Preferred Stock so designated for redemption shall not be deemed to be
outstanding for any purpose whatsoever, and the rights of the Holders of such
shares shall be limited to the right to receive the redemption price of such
shares, without interest, upon surrender of the certificates representing the
same to the Company at said office of such bank and trust company, and the right
of conversion (on or before the close of business on the last business day prior
to the date fixed for redemption) herein provided.  Any funds so
deposited which shall not be required for such redemption because of the
exercise of such right of conversion after the date of such deposit shall be
returned to the Company.  Any interest accrued on such funds shall be
paid to the Company from time to time.  Any moneys so deposited which
shall remain unclaimed by the Holders of such Preferred Stock at the end of
three years after the redemption date shall be returned by such bank or trust
company to the Company after which the Holders of the Preferred Stock shall look
only to the Company for payment of the redemption price.  In the event
that less than all the outstanding shares of Preferred Stock are to be redeemed
at one time, the shares so to be redeemed shall be redeemed pro rata.  The
prices at which each share of Preferred Stock may be redeemed during the periods
set forth below are as follows:


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      
        	
                Prior
      to the third anniversary of the Original Issue Date:  No right
      to redeem.

                 

              
	
                After
      the third anniversary of the Original Issue Date but before the fourth
      anniversary of

              
	
                the
      Original Issue Date:

              	
                $52.00
      together with an amount equal to all cumulative dividends accrued and
      unpaid thereon to the date of redemption.

                 

              
	
                After
      the fourth anniversary of the Original Issue Date but before the fifth
      anniversary of

              
	
                the
      Original Issue Date:

              	
                $51.60
      together with an amount equal to all cumulative dividends accrued and
      unpaid thereon to the date of redemption.

                 

              
	
                After
      the fifth anniversary of the Original Issue Date but before the sixth
      anniversary of

              
	
                the
      Original Issue Date:

              	
                $51.20
      together with an amount equal to all cumulative dividends accrued and
      unpaid thereon to the date of redemption.

                 

              
	
                After
      the sixth anniversary of the Original Issue Date but before the seventh
      anniversary of

              
	
                the
      Original Issue Date:

              	
                $50.80
      together with an amount equal to all cumulative dividends accrued and
      unpaid thereon to the date of redemption.

                 

              
	
                After
      the seventh anniversary of the Original Issue Date but before the eighth
      anniversary of

              
	
                the
      Original Issue Date:

              	
                $50.40
      together with an amount equal to all cumulative dividends accrued and
      unpaid thereon to the date of redemption.

                 

              
	
                After
      the eighth anniversary of the Original Issue Date:

              	
                $50.00
      together with an amount

              
	 
      	
                equal
      to all cumulative dividends accrued and unpaid thereon to the date of
      redemption.

              


      

       

      SECTION 7.          Definitions.  For
the purposes hereof, the following terms shall have the following
meanings:

       

      “Original
Issue Date” shall mean the date of the first issuance of any shares of Preferred
Stock regardless of the number of transfers of any particular shares of
Preferred Stock and regardless of the number of certificates which may be issued
to evidence such Preferred Stock.

       

      “Per
Share Market Value” means on any particular date (a) the closing sales price per
share of the Common Stock on such date on The Nasdaq Stock Market or if the
Common Stock is not listed on The Nasdaq Stock Market, on such other stock
exchange on which the Common Stock has been listed or if there is no such price
on such date, then the closing sales price on such exchange on the date nearest
preceding such date, or (b) if the Common Stock is not listed on The Nasdaq
Stock Market or any stock exchange, the closing sales price for a share of
Common Stock in the over-the-counter market, as reported by the NASD at the
close of business on such date, or (c) if the Common Stock is not quoted on the
NASD, the closing sales price for a share of Common Stock in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or similar organization or agency succeeding to its functions of
reporting prices), or (d) if the Common Stock is no longer publicly traded the
fair market value of a share of Common Stock as determined by a nationally
recognized or major regional investment banking firm or firm of independent
certified public accountants of recognized standing (which may be the firm that
regularly examines the financial statements of the Company)(an “Appraiser”)
selected in good faith by the Holders of a majority of the shares of the
Preferred Stock; provided, however, that the Company, after receipt of the
determination by such Appraiser, shall have the right to select an additional
Appraiser, in which case the fair market value shall be equal to the average of
the determinations by each such Appraiser.

       

      “Purchase
Agreement” means the Cumulative Convertible Preferred Stock Purchase Agreement,
dated as of the Original Issue Date, between the Company and the original Holder
of the Preferred Stock.

       

      “Trading
Day” means (a) a day on which the Common Stock is traded on The Nasdaq Stock
Market or principal stock exchange on which the Common Stock is then listed. or
(b) if
the Common Stock is not listed on The Nasdaq Stock Market or any stock exchange,
a day on which the Common Stock is traded in the over-the-counter market, as
reported by the NASD, or (c) if the Common Stock is not quoted on The Nasdaq
Stock Market, a day on which the Common Stock is quoted in the over-the-counter
market as reported by the National Quotation Bureau Incorporated (or any similar
organization or agency succeeding its functions of reporting prices).