<PAGE>
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TNPC, INC.
TNPC, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), hereby certifies as follows:
A. The name of the Corporation is TNPC, Inc. The original
Certificate of Incorporation of the Corporation was filed with the Secretary of
State of the State of Delaware on November 17, 1999.
B. This Second Amended and Restated Certificate of Incorporation
has been duly adopted in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware and, pursuant to such provisions, this
Second Amended and Restated Certificate of Incorporation restates and integrates
and further amends the provisions of the Certificate of Incorporation of the
Corporation and the Amended and Restated Certificate of Incorporation.
C. Pursuant to Section 103(d) of the General Corporation Law of
the State of Delaware, this Second Amended and Restated Certificate of
Incorporation shall not become effective until 5:00 p.m. Eastern Time on October
11, 2000.
D. The text of the Certificate of Incorporation of the
Corporation is hereby restated and further amended to read in its entirety as
set forth on EXHIBIT A hereto.
IN WITNESS WHEREOF, this Second Amended and Restated Certificate of
Incorporation has been signed by the undersigned authorized officer of the
Corporation this 10th day of October, 2000.
TNPC, INC.
By: /s/ MARC E. MANLY
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Name: Marc E. Manly
--------------------------------
Title: Managing Director, Law and
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Government Affairs
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<PAGE>
EXHIBIT A
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TNPC, INC.
ARTICLE ONE
The name of the corporation is TNPC, Inc.
ARTICLE TWO
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle, Delaware 19801. The name of its registered agent at such address
is The Corporation Trust Company.
ARTICLE THREE
1. The purpose of the corporation is to engage, directly or
indirectly (through Affiliates or otherwise), in the Retail marketing and Retail
sale of natural gas, electricity and other commodities, products and services
(whether or not related to natural gas or electricity) to and only to Small
Commercial Customers and Residential Customers in the United States
(collectively, the "Small Commercial and Residential Business"), including,
without limitation, the following:
(a) the research, development, acquisition, ownership,
management, operation, leasing, financing, branding and provision or
sale of commodities, products and services for the purpose of
conducting the Small Commercial and Residential Business;
(b) the acquisition, ownership, operation, sale and
management of physical and financial portfolios of natural gas,
electricity and other commodities or products, whether at Retail or at
wholesale, for the purpose of conducting the Small Commercial and
Residential Business;
(c) the acquisition, ownership, operation, leasing,
provision and management of systems and facilities for or on behalf of
the corporation, its Affiliates or any other Persons such as are
necessary or appropriate to support and conduct the Small Commercial
and Residential Business and the activities referenced in clauses (a)
through (l) hereof;
(d) any business conducted with or through any Person
serving as an aggregator or sponsor for the purpose of aggregating
Residential Customers or Small Commercial Customers, provided that the
corporation's business with the Residential Customer or Small
Commercial Customer is conducted at Retail;
(e) any business conducted with respect to Residential
Customers with or through Persons who are owners, management companies
and/or tenants of multi-family housing and
<PAGE>
planned communities, including, but not limited to, apartment
complexes, condominiums, townhomes, nursing or assisted living homes,
or highrise or other buildings, provided that the corporation's
business with the Residential Customer is conducted at Retail; and,
provided further, that the corporation shall be permitted to conduct
business with Residential Customers residing in single building housing
cooperatives even if the corporation's business is conducted with the
governing body or managing agent of such housing cooperative;
(f) the acquisition, ownership, sale or operation and
leasing for or on behalf of the corporation, its Affiliates or any
other Persons of any real and personal property (including fuel cells
and microturbines and any similar or analogous apparatus or technology)
that are used or useful in connection with the Small Commercial and
Residential Business;
(g) agreements with Persons that relate to the Small
Commercial and Residential Business, including, but not limited to,
purchase and sale agreements, service agreements (including
self-generation development agreements), management agreements, "back
office" services agreements, and meter, bill, collect and response
agreements;
(h) the provision of risk management services for the
corporation and other Persons for the purpose of conducting the Small
Commercial and Residential Business;
(i) the acquisition, ownership, and disposition of debt
of or equity interests in Persons engaged in businesses that the
corporation is permitted hereby to engage in;
(j) any financings related to the activities that the
corporation is permitted hereby to engage in;
(k) any other lawful business or activity that now or
hereafter may be incidental to or necessary to accomplish the foregoing
purposes; and
(l) notwithstanding any provision of this Article Three
to the contrary, any other lawful business or activity in which a
corporation organized under the Delaware General Corporation Law of the
State of Delaware (the "DGCL") is permitted to engage in; provided that
such other business or activity contemplated by this clause (l) is
approved in writing by Enron Corp., an Oregon corporation, or any
successor thereto, which approval may be granted or withheld by Enron
Corp. or such successor in its sole and unfettered discretion, and
which approval may be general in nature or may be confined to a
particular activity or a particularly described expanded business
purpose.
2. Notwithstanding the foregoing, from and after the first date
on which both of the tests in subparagraphs (a) and (b) below are satisfied, or
the event in subparagraph (c) below occurs, the purpose of the corporation shall
be to engage in any lawful business or activity in which a corporation organized
under the DGCL is permitted to engage:
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(a) Enron Corp. and its Controlled Affiliates cease to,
individually or collectively, directly or indirectly, hold at any time
the beneficial interest in and to at least twenty percent (20%) of the
aggregate number of shares of the then issued and outstanding Common
Stock calculated on a fully-diluted basis (determined by dividing (i)
the sum of the number of shares of Common Stock then owned by Enron
Corp. and its Controlled Affiliates and the number of shares of Common
Stock then issuable to Enron Corp. and its Controlled Affiliates
pursuant to all outstanding rights, warrants, options, convertible
securities or exchangeable securities, exercisable for or convertible
or exchangeable into, directly or indirectly, Common Stock (whether or
not such securities are then exercisable or convertible) by (ii) the
sum of the number of shares of Common Stock then outstanding and the
number of shares of Common Stock then issuable pursuant to all then
outstanding rights, warrants, options, convertible securities or
exchangeable securities, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock (whether or not such
securities are then exercisable or convertible), with such quotient
expressed as a percentage), and
(b) fewer than twenty percent (20%) of the directors of
the corporation are persons who are employees, officers or directors of
Enron Corp. or any of its Controlled Affiliates; or
(c) termination of the Noncompetition Agreement by and
among the corporation, Enron Energy Services, LLC and Enron Corp. as
contemplated by the Contribution and Subscription Agreement dated
December 23, 1999 by and among DLJMB Funding II, Inc., DLJ Merchant
Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P.,
DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ
Millennium Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ First
ESC L.P., DLJ Offshore Partners II, C.V., DLJ EAB Partners, L.P., DLJ
ESC II, L.P., G.E. Capital Equity Investments, Inc., the California
Public Employees= Retirement System, the Ontario Teachers= Pension Plan
Board, Enron Energy Services, LLC, Cortez Energy Services, LLC, and the
corporation.
3. Notwithstanding any other provision in this Second Amended and
Restated Certificate of Incorporation, if the corporation inadvertently or
unintentionally engages in any business or activity that is lawful for a
corporation organized under the DGCL to engage in but is otherwise not then
permitted by Article Three hereof, such business or activity shall not be deemed
or considered ULTRA VIRES or void. Upon discovery of any such business or
activity, the corporation shall promptly use its best efforts to cure or remedy
the business or activity to ensure that the corporation complies with this
Article Three.
4. For purposes of this Article Three, the following terms shall
have the meanings set forth below:
"Affiliate" of a Person means any other Person that, directly
or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, the first Person, and
"Controlled Affiliate" means any other Person Controlled by such first
Person; provided that the corporation and its Controlled Affiliates
shall never be considered to be Affiliates of Enron Corp. or its
Affiliates.
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"Control" and its correlative terms means the possession,
directly or indirectly, through one or more intermediaries, through the
ownership of voting securities, by contract, or otherwise, of the power
or authority to exercise a controlling influence over the management of
the Person (including, but not limited to, serving as manager, managing
partner, or general partner of a Person or performing similar functions
for a Person).
"Person" means a natural person, a corporation (private or
public), a limited liability company, a joint stock company, a
partnership, a limited partnership, a joint venture, a trust, an
estate, an unincorporated or governmental organization, association,
agency or any other private or public entity.
"Residential Customers" means any and all natural Persons who
purchase or seek to purchase natural gas, electricity or other
commodities, products or services (whether or not related to natural
gas or electricity) at Retail and, to the knowledge of the corporation,
not for commercial purposes, in the United States.
"Retail" means any marketing, sale or other business to or
with a Person who to the knowledge of the corporation (or, in the case
of Small Commercial Customers, it or its Affiliates) is the ultimate
recipient or ultimate customer of commodities, products or services for
final consumption or final use, and to the knowledge of the corporation
does not intend to resell, further distribute or disseminate such
commodities, products or services, or purchase them for the account of
any other Person.
"Small Commercial Customers" means any and all Persons who
purchase or seek to purchase natural gas, electricity or other
commodities, products or services (whether or not related to natural
gas or electricity) at Retail in the United States; provided that:
(i) in the case of natural gas and electricity, any such Persons and/or
their Controlled Affiliates do not contract with the corporation and
its Controlled Affiliates for more than:
(a) two hundred fifty thousand cubic feet (250
Mcf) of natural gas in any calendar month at any one location
in the United States from which such Person or any of its
Controlled Affiliates conducts business, or more than seven
hundred fifty thousand cubic feet (750 Mcf) of natural gas in
any calendar month at any multiple locations in the United
States from which such Person and any of its Controlled
Affiliates taken together conducts business; and
(b) thirty six thousand kilowatt hours (36,000
kWh) of electric energy in any calendar month at any one
location in the United States from which such Person or any of
its Controlled Affiliates conducts business, or more than one
hundred eight thousand kilowatt hours (108,000 kWh) of
electric energy in any calendar month at any multiple
locations in the United States from which such Person and any
of its Controlled Affiliates taken together conducts business;
<PAGE>
and (ii) in the case of commodities, products or services other than
natural gas or electricity, the corporation does not reasonably expect
that any such Person and its Controlled Affiliates collectively require
(from the corporation or any other Person or Persons) for their
businesses more than:
(a) two hundred fifty thousand cubic feet (250
Mcf) of natural gas in any calendar month at any one location
in the United States from which such Person or any of its
Controlled Affiliates conducts business, or more than seven
hundred fifty thousand cubic feet (750 Mcf) of natural gas in
any calendar month at any multiple locations in the United
States from which such Person and any of its Controlled
Affiliates taken together conducts business; and
(b) thirty six thousand kilowatt hours (36,000
kWh) of electric energy in any calendar month at any one
location in the United States from which such Person or any of
its Controlled Affiliates conducts business, or more than one
hundred eight thousand kilowatt hours (108,000 kWh) of
electric energy in any calendar month at any multiple
locations in the United States from which such Person and any
of its Controlled Affiliates taken together conducts business.
"United States" means the fifty (50) states within the United
States and the District of Columbia, but excluding any United States
territories or possessions, such as Puerto Rico.
ARTICLE FOUR
The total number of shares of all classes of stock which the
corporation shall have authority to issue is 550,000,000 shares of capital
stock, consisting of 500,000,000 shares of common stock, par value One Cent
($.01) per share ("Common Stock"), and 50,000,000 shares of preferred stock, par
value One Cent ($.01) per share ("Preferred Stock").
The designations and the powers, preferences, rights, qualifications,
limitations and restrictions of the Preferred Stock and Common Stock are as
follows:
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to time
in one or more series or classes, the shares of each series or class to
have such designations and powers, preferences and rights, and
qualifications, limitations and restrictions thereof, as are stated and
expressed herein and in the resolution or resolutions providing for the
issue of such series or class adopted by the Board of Directors of the
corporation as hereafter prescribed.
(b) Authority is hereby expressly granted to and vested
in the Board of Directors or any committee of members of the Board of
Directors to which such authority is duly delegated to authorize the
issuance of the Preferred Stock from time to time in one or more series
or classes, and with respect to each series or class of the Preferred
Stock, to fix and state by resolution or resolutions from time to time
adopted prior to, and providing for the issuance thereof, the number of
shares in each series and all designations, relative rights,
<PAGE>
preferences and limitations of the shares in each such series,
including, without limiting the generality of the foregoing, the
following:
(i) whether or not a series or class is to have
voting rights, full, special, or limited, or is to be without
voting rights, and whether or not such series or class is to
be entitled to vote as a separate class either alone or
together with the holders of one or more other series or
classes of stock;
(ii) the number of shares to constitute the
series or class and the designations thereof;
(iii) the preferences, and relative,
participating, optional, or other special rights, if any, and
the qualifications, limitations, or restrictions thereof, if
any, with respect to any series or class;
(iv) whether or not the shares of any series or
class shall be redeemable at the option of the corporation or
the holders thereof or upon the happening of any specified
event, and, if redeemable, the redemption price or prices
(which may be payable in the form of cash, notes, securities,
or other property), and the time or times at which, and the
terms and conditions upon which, such shares shall be
redeemable and the manner of redemption;
(v) whether or not the shares of a series or
class shall be subject to the operation of retirement or
sinking funds to be applied to the purchase or redemption of
such shares for retirement, and, if such retirement or sinking
fund or funds are to be established, the annual amount
thereof, and the terms and provisions relative to the
operation thereof;
(vi) the dividend rate, whether dividends are
payable in cash, stock of the corporation, or other property,
the conditions upon which and the times when such dividends
are payable, the preference to or the relation to the payment
of dividends payable on any other series or class or classes
of stock, whether or not such dividends shall be cumulative or
noncumulative, and if cumulative, the date or dates from which
such dividends shall accumulate;
(vii) the preferences, if any, and the amounts
thereof which the holders of any series or class thereof shall
be entitled to receive upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the
corporation;
(viii) whether or not the shares of any series or
class, at the option of the corporation or the holder thereof
or upon the happening of any specified event, shall be
convertible into or exchangeable for, the shares of any other
class or classes or of any other series of the same or any
other class or classes of stock, securities, or other property
of the corporation and the conversion price or prices or ratio
or ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and
expressed or provided for in such resolution or resolutions;
and
<PAGE>
(ix) such other special rights and protective
provisions with respect to any class or series as shall not be
inconsistent with the provisions of this Second Amended and
Restated Certificate of Incorporation and as may to the Board
of Directors seem advisable.
(c) The shares of each series or class of the Preferred
Stock may vary from the shares of any other series or class thereof in
any or all of the foregoing respects. Except as otherwise provided in
any resolution or resolutions providing for the issuance of any series
or class of Preferred Stock, the Board of Directors may increase the
number of shares of the Preferred Stock designated for such series or
class by a resolution adding to such series or class authorized and
unissued shares of the Preferred Stock not designated for any other
series or class. The Board of Directors may decrease the number of
shares of the Preferred Stock designated for any existing series or
class by a resolution subtracting from such series or class authorized
and unissued shares of the Preferred Stock designated for such existing
series or class.
2. Provisions Relating to the Common Stock.
(a) Subject to the prior rights and preferences, if any,
applicable to shares of the Preferred Stock or any series or class
thereof, the holders of shares of the Common Stock shall be entitled to
receive such dividends (payable in cash, stock, or otherwise) as may be
declared thereon by the Board of Directors at any time and from time to
time out of any funds of the corporation legally available therefor.
(b) In the event of any voluntary or involuntary
liquidation, dissolution, or winding-up of the corporation, after
distribution in full of the preferential amounts, if any, to be
distributed to the holders of shares of Preferred Stock or any series
or class thereof, the holders of shares of Common Stock shall be
entitled to receive all of the remaining assets of the corporation
available for distribution to its stockholders, ratably in proportion
to the number of shares of the Common Stock held by them. A
liquidation, dissolution, or winding-up of the corporation, as such
terms are used in this paragraph (c), shall not be deemed to be
occasioned by or to include any consolidation or merger of the
corporation with or into any other corporation or corporations or other
entity or a sale, lease, exchange, or conveyance of all or a part of
the assets of the corporation.
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.
Special meetings of stockholders may be called only by a majority of
the Board of Directors, the Chairman of the Board of Directors, the President of
the corporation and any one or more holders of record of 10% or more shares of
Common Stock or Preferred Stock entitled to vote at such meeting. As long as
Enron Corp., its subsidiaries and Cortez Energy Services, LLC, an affiliate of
Enron Corp., taken together, are holders of record of 10% or more shares of
Common Stock, the
<PAGE>
above limitation on who may call a special meeting of stockholders may not be
amended without first obtaining the consent of Enron Corp.
ARTICLE FIVE
In accordance with Section 203 of the DGCL, the corporation hereby
elects not to be governed by Section 203 of the DGCL as in effect on the date
hereof or any successor statute.
ARTICLE SIX
Subject to the rights of holders of any series of Preferred Stock to
elect additional directors under specified circumstances, the number of
directors shall be from time to time fixed in the manner prescribed by the
bylaws of the corporation. Qualification for the directors, if any, shall be set
out in the bylaws. The election of directors need not be by written ballot
unless the bylaws so provide.
ARTICLE SEVEN
In furtherance of, and not in limitation of, the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the bylaws of the corporation.
ARTICLE EIGHT
Whenever a compromise or arrangement is proposed between the
corporation and its creditors or any class of them and/or between the
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the corporation under the
provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the corporation under
the provisions of Section 279 of the DGCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of the corporation, as the case
may be, and also on the corporation.
ARTICLE NINE
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 the
<PAGE>
law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit. If the DGCL 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 limitation on personal liability provided herein, shall be limited to the
fullest extent permitted by the amended DGCL. Any repeal or modification of this
Article Nine 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.
ARTICLE TEN
1. Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; PROVIDED,
HOWEVER, that, except as provided in paragraph 2 of this Article Ten, the
corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the corporation. The right to indemnification conferred in this Article Ten
shall be a contract right and shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; PROVIDED, HOWEVER, that if the DGCL requires, the payment
of such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article Ten or otherwise.
The corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
2. If a claim under paragraph 1 of this Article Ten is not paid
in full by the corporation within thirty days after a written claim has been
received by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of
<PAGE>
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been rendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the DGCL for
the corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
3. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article Ten shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, provision of this Second
Amended and Restated Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
4. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the DGCL.
ARTICLE ELEVEN
The corporation shall have the right, subject to any express provisions
or restrictions contained in this Second Amended and Restated Certificate of
Incorporation or bylaws of the corporation, from time to time, to further amend
this Second Amended and Restated Certificate of Incorporation or any provision
herein in any manner now or hereafter provided by law, and all rights and powers
of any kind conferred upon a director or stockholder of the corporation by this
Second Amended and Restated Certificate of Incorporation or any amendment
thereof are subject to such right of the corporation; PROVIDED, HOWEVER that,
until the expansion of the corporate purpose of the corporation contemplated by
Section 2 of Article Three occurs, any amendment of Article Three hereof or of
this proviso shall require the affirmative vote of not less than eighty percent
(80%) of the issued and outstanding shares of Common Stock entitled to vote with
respect to such amendment. Prior to the expansion of the corporate purpose of
the corporation contemplated by Section 2 of Article Three, the corporation
shall not engage in any merger or consolidation unless (i) the certificate of
incorporation of the surviving corporation contains provisions substantially the
same as those contained in Article Three and this Article Eleven or (ii) such
merger or consolidation is approved by the affirmative vote of not less than
eighty percent (80%) of the issued and outstanding shares of Common Stock.
