AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACTIVISION HOLDINGS, INC.
A Delaware corporation
It is hereby certified that:
1. ACTIVISION HOLDINGS, INC., a Delaware corporation (the
"Corporation"), has not received any payment for any of its stock.
2. The Certificate of Incorporation of the Corporation is hereby
amended and restated to read in full as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is Activision Holdings, Inc.
SECOND: The registered office of the Corporation is to be located at
1013 Centre Road, in the City of Wilmington, in the County of New Castle, in
the State of Delaware. The name of its registered agent at that address is
Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware, as it may be amended from time to
time (the "Delaware Code").
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is fifty five million (55,000,000)
shares, of which four million five hundred thousand (4,500,000) shares are
designated Preferred Stock (the "Preferred Stock"), par value $.000001 per
share and aggregate par value of four and one-half Dollars ($4.50), and of
which five hundred thousand (500,000) shares are designated Series A Junior
Preferred Stock (the "Series A Preferred Stock"), par value $.000001 per
share and aggregate par value of half one dollar ($0.50) and of which fifty
million (50,000,000) shares are designated Common Stock (the "Common Stock"),
par value $.000001 per share and aggregate par value of fifty Dollars ($50).
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A. SERIES A JUNIOR PREFERRED STOCK. The terms of the Series A Junior
Preferred Stock shall be as follows:
1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting such series shall be 500,000.
Such number of shares of Series A Preferred Stock may be increased or
decreased by resolution of the Board of Directors; provided that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number
less than the number of shares then outstanding plus the number of shares
issuable upon exercise of conversion of outstanding rights, options or other
securities issued by the Corporation.
2. Dividends and Distributions.
(a) Subject to the provisions for adjustment hereinafter set
forth, and subject to the rights of the holders of any shares of any series
of Preferred Stock ranking prior and superior to the Series A Preferred Stock
with respect to dividends, the holders of shares of Series A Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, (i) cash dividends
in an amount per share (rounded to the nearest cent) equal to 100 times the
aggregate per share amount of all cash dividends declared or paid on the
Common Stock, $.000001 par value per share, of the Corporation (the "Common
Stock") and (ii) a preferential cash dividend (the "Preferential Dividends"),
if any, in preference to the holders of Common Stock, on the first business
day of January, April, July and October, of each year (each a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A
Preferred Stock, payable in an amount (except in the case of the first
Quarterly Dividend Payment if the date of the first issuance of Series A
Preferred Stock is a date other than a Quarterly Dividend Payment Date, in
which case such payment shall be a prorated portion of such amount) equal to
$.000001 per share of Series A Preferred Stock less the per share amount of
all cash dividends declared on the Series A Preferred Stock pursuant to
clause (i) of this sentence since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall, at any time
after the issuance of any share or fraction of a share of Series A Preferred
Stock, make any distribution on the shares of Common Stock of the
Corporation, whether by way of a dividend or a reclassification of stock, a
recapitalization, reorganization or partial liquidation of the Corporation or
otherwise, which is payable in cash or any debt security, debt instrument,
real or personal property or any other property (other than cash dividends
subject to the immediately preceding sentence, a distribution of shares of
Common Stock or other capital stock of the Corporation or a distribution of
options, rights or warrants to acquire any such share, including any debt
security convertible into or exchangeable for any such share, at a price less
than the Fair Market Value (as hereinafter defined) of such share of Common
Stock), then, and in each such event, the Corporation shall simultaneously
pay on each then outstanding share of Series A Preferred Stock of the
Corporation a distribution, in like kind, of 100 times such distribution paid
on a share of Common Stock (subject to the provisions for adjustment
hereinafter set forth). The dividends and distributions on the Series A
Preferred Stock to which holders thereof are entitled pursuant to clause (i)
of the first sentence of this paragraph and pursuant to the second sentence
of this paragraph are hereinafter referred to as "Dividends" and the multiple
of such cash and non-cash dividends on the Common Stock applicable to the
determination of the Dividends, which shall be 100 initially but shall be
adjusted from time to time as hereinafter provided, is hereinafter referred
to as the "Dividend Multiple". In the event the Corporation shall at any
time after April 18, 2000 declare or pay any dividend or make any
distribution on Common Stock payable in shares of Common Stock, or effect a
subdivision or split or a combination, consolidation or reverse split of the
outstanding shares of Common Stock into a greater or lesser number of shares
of Common Stock, then in each such case the Dividend Multiple thereafter
applicable to the determination of the amount of Dividends which holders of
shares of Series A Preferred Stock shall be entitled to receive shall be the
Dividend Multiple applicable immediately prior to such event multiplied by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare each Dividend at the same time
it declares any cash or non-cash dividend or distribution on the Common Stock
in respect of which a Dividend is required to be paid. No cash or non-cash
dividend or distribution on the Common Stock in respect of which a Dividend
is required to be paid shall be paid or set aside for payment on the Common
Stock unless a Dividend in respect of such dividend or distribution on the
Common Stock shall be simultaneously paid, or set aside for payment, on the
Series A Preferred Stock.
(c) Preferential Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issuance of any shares of Series A
Preferred Stock. Accrued but unpaid Preferential Dividends shall not bear
interest. Preferential Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall not be more than 60
days prior to the date fixed for the payment thereof.
3. Voting Rights. In addition to any other voting rights required by
law, the holders of shares of Series A Preferred Stock shall have the
following voting rights:
(a) Subject to the provisions for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the holders of the
Common Stock. The number of votes which a holder of Series A Preferred Stock
is entitled to cast, as the same may be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Vote Multiple". In
the event the Corporation shall at any time after April 18, 2000 declare or
pay any dividend on Common Stock payable in shares of Common Stock, or effect
a subdivision or split or a combination, consolidation or reverse split of
the outstanding shares of Common Stock into a greater or lesser number of
shares of Common Stock, then in each such case the Vote Multiple thereafter
applicable to the determination of the number of votes per share to which
holders of shares of Series A Preferred Stock shall be entitled after such
event shall be the Vote Multiple immediately prior to such event multiplied
by a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) Except as otherwise provided in the Amended and Restated
Certificate of Incorporation or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(c) In the event that the Preferential Dividends accrued on the
Series A Preferred Stock for six or more quarterly dividend periods, whether
consecutive or not, shall not have been declared and paid or irrevocably set
aside for payment, the holders of record of Preferred Stock of the
Corporation of all series (including the Series A Preferred Stock), other
than any series in respect of which such right is expressly withheld by the
Amended and Restated Certificate of Incorporation or the authorizing
resolutions included in any Certificate of Designation therefor, shall have
the right, at the next meeting of stockholders called for the election of
directors, to elect two members to the Board of Directors, which directors
shall be in addition to the number required prior to such event, to serve
until the next Annual Meeting and until their successors are elected and
qualified or their earlier resignation, removal or incapacity or until such
earlier time as all accrued and unpaid Preferential Dividends upon the
outstanding shares of Series A Preferred Stock shall have been paid (or
irrevocably set aside for payment) in full. The holders of shares of Series
A Preferred Stock shall continue to have the right to elect directors as
provided by the immediately preceding sentence until all accrued and unpaid
Preferential Dividends upon the outstanding shares of Series A Preferred
Stock shall have been paid (or set aside for payment) in full. Such
directors may be removed and replaced by such stockholders, and vacancies in
such directorships may be filled only by such stockholders (or by the
remaining director elected by such stockholders, if there be one) in the
manner permitted by law; provided, however, that any such action by
stockholders shall be taken at a meeting of stockholders and shall not be
taken by written consent thereto.
(d) Except as otherwise required by the Amended and Restated
Certificate of Incorporation or by law or as set forth herein, holders of
Series A Preferred Stock shall have no other special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for the taking of any
corporate action.
4. Certain Restrictions.
(a) Whenever Preferential Dividends or Dividends payable on the
Series A Preferred Stock as provided in Section 2 are in arrears or the
Corporation shall be in default of payment thereof, thereafter and until all
accrued and unpaid Preferential Dividends and Dividends, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have been
paid, or set irrevocably aside for payment, in full, and in addition to any
and all other rights which any holder of shares of Series A Preferred Stock
may have in such circumstances, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration,
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to
dividends with the Series A Preferred Stock, unless dividends are
paid ratably on the Series A Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled if the full dividends accrued thereon were to be paid;
(iii) except as permitted by subparagraph (iv) of this
paragraph 4(A), redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity with or
junior to (either as to dividends or upon liquidation, dissolution
or winding up) the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity or junior stock in exchange for shares of
any stock of the Corporation ranking junior (both as to dividends
and upon liquidation, dissolution or winding up) to the Series A
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking
on a parity with the Series A Preferred Stock (either as to
dividends or upon liquidation, dissolution or winding up), except
in accordance with a purchase offer made to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any Subsidiary (as
hereinafter defined) of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner. A "Subsidiary" of the
Corporation shall mean any corporation or other entity of which securities or
other ownership interests having ordinary voting power sufficient to elect a
majority of the board of directors of such corporation or other entity or
other persons performing similar functions are beneficially owned, directly
or indirectly, by the Corporation or by any corporation or other entity that
is otherwise controlled by the Corporation.
(c) The Corporation shall not issue any shares of Series A
Preferred Stock except upon exercise of Rights issued pursuant to that
certain Rights Agreement dated as of April 18, 2000 between the Corporation
and Continental Stock Transfer & Trust Company, as Rights Agent, as it may be
amended from time to time, a copy of which is on file with the Secretary of
the Corporation at its principal executive office and shall be made available
to stockholders of record without charge upon written request therefor
addressed to said Secretary. Notwithstanding the foregoing sentence, nothing
contained in the provisions of this Amended and Restated Certificate of
Incorporation shall prohibit or restrict the Corporation from issuing for any
purpose any series of Preferred Stock with rights and privileges similar to,
different from, or greater than, those of the Series A Preferred Stock.
5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares upon their retirement and cancellation shall become authorized
but unissued shares of Preferred Stock, without designation as to series, and
such shares may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors.
6. Liquidation, Dissolution or Winding Up. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received for each share of
Series A Preferred Stock, subject to adjustment as hereinafter provided, (A)
$4,000 plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment or, (B) if
greater than the amount specified in clause (i)(A) of this sentence, an
amount equal to 100 times the aggregate amount to be distributed per share to
holders of Common Stock, as the same may be adjusted as hereinafter provided
and (ii) to the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, unless simultaneously therewith distributions are made ratably on the
Series A Preferred Stock and all other shares of such parity stock in
proportion to the total amounts to which the holders of shares of Series A
Preferred Stock are entitled under clause (i)(A) of this sentence and to
which the holders of such parity shares are entitled, in each case upon such
liquidation, dissolution or winding up. The amount to which holders of
Series A Preferred Stock may be entitled upon liquidation, dissolution or
winding up of the Corporation pursuant to clause (i)(B) of the foregoing
sentence is hereinafter referred to as the "Participating Liquidation Amount"
and the multiple of the amount to be distributed to holders of shares of
Common Stock upon the liquidation, dissolution or winding up of the
Corporation applicable pursuant to said clause to the determination of the
Participating Liquidation Amount, as said multiple may be adjusted from time
to time as hereinafter provided, is hereinafter referred to as the
"Liquidation Multiple". In the event the Corporation shall at any time after
April 18, 2000 declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or split or a combination,
consolidation or reverse split of the outstanding shares of Common Stock into
a greater or lesser number of shares of Common Stock, then, in each such
case, the Liquidation Multiple thereafter applicable to the determination of
the Participating Liquidation Amount to which holders of Series A Preferred
Stock shall be entitled after such event shall be the Liquidation Multiple
applicable immediately prior to such event multiplied by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
7. Certain Reclassifications and Other Events.
(a) In the event that holders of shares of Common Stock of the
Corporation receive after April 18, 2000, in respect of their shares of
Common Stock any share of capital stock of the Corporation (other than any
share of Common Stock of the Corporation), whether by way of
reclassification, recapitalization, reorganization, dividend or other
distribution or otherwise (a "Transaction"), then, and in each such event,
the dividend rights, voting rights and rights upon the liquidation,
dissolution or winding up of the Corporation of the shares of Series A
Preferred Stock shall be adjusted so that after such event the holders of
Series A Preferred Stock shall be entitled, in respect of each share of
Series A Preferred Stock held, in addition to such rights in respect thereof
to which such holder was entitled immediately prior to such adjustment, to
(i) such additional dividends as equal the Dividend Multiple in effect
immediately prior to such Transaction multiplied by the additional dividends
which the holder of a share of Common Stock shall be entitled to receive by
virtue of the receipt in the Transaction of such capital stock, (ii) such
additional voting rights as equal the Vote Multiple in effect immediately
prior to such Transaction multiplied by the additional voting rights which
the holder of a share of Common Stock shall be entitled to receive by virtue
of the receipt in the Transaction of such capital stock and (iii) such
additional distributions upon liquidation, dissolution or winding up of the
Corporation as equal the Liquidation Multiple in effect immediately prior to
such Transaction multiplied by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation,
dissolution or winding up of the Corporation by virtue of the receipt in the
Transaction of such capital stock, as the case may be, all as provided by the
terms of such capital stock.
(b) In the event that holders of shares of Common Stock of the
Corporation receive after April 18, 2000, in respect of their shares of
Common Stock any right or warrant to purchase Common Stock (including as such
a right, for all purposes of this paragraph, any security convertible into or
exchangeable for Common Stock) at a purchase price per share less than the
Fair Market Value of a share of Common Stock on the date of issuance of such
right or warrant, then and in each such event the dividend rights, voting
rights and rights upon the liquidation, dissolution or winding up of the
Corporation of the shares of Series A Preferred Stock shall each be adjusted
so that after such event the Dividend Multiple, the Vote Multiple and the
Liquidation Multiple shall each be the product of the Dividend Multiple, the
Vote Multiple and the Liquidation Multiple, as the case may be, in effect
immediately prior to such event multiplied by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the maximum number of shares
of Common Stock which could be acquired upon exercise in full of all such
rights or warrants and the denominator of which shall be the number of shares
of Common Stock outstanding immediately before such issuance of rights or
warrants plus the number of shares of Common Stock which could be purchased,
at the Fair Market Value of the Common Stock at the time of such issuance, by
the maximum aggregate consideration payable upon exercise in full of all such
rights or warrants.
(c) In the event that holders of shares of Common Stock of the
Corporation receive after April 18, 2000, in respect of their shares of
Common Stock any right or warrant to purchase capital stock of the
Corporation (other than shares of Common Stock), including as such a right,
for all purposes of this paragraph, any security convertible into or
exchangeable for capital stock of the Corporation (other than Common Stock),
at a purchase price per share less than the Fair Market Value of such shares
of capital stock on the date of issuance of such right or warrant, then and
in each such event the dividend rights, voting rights and rights upon
liquidation, dissolution or winding up of the Corporation of the shares of
Series A Preferred Stock shall each be adjusted so that after such event each
holder of a share of Series A Preferred Stock shall be entitled, in respect
of each share of Series A Preferred Stock held, in addition to such rights in
respect thereof to which such holder was entitled immediately prior to such
event, to receive (i) such additional dividends as equal the Dividend
Multiple in effect immediately prior to such event multiplied, first, by the
additional dividends to which the holder of a share of Common Stock shall be
entitled upon exercise of such right or warrant by virtue of the capital
stock which could be acquired upon such exercise and multiplied again by the
Discount Fraction (as hereinafter defined) and (ii) such additional voting
rights as equal the Vote Multiple in effect immediately prior to such event
multiplied, first, by the additional voting rights to which the holder of a
share of Common Stock shall be entitled upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction and (iii) such
additional distributions upon liquidation, dissolution or winding up of the
Corporation as equal the Liquidation Multiple in effect immediately prior to
such event multiplied, first, by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation,
dissolution or winding up of the Corporation upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction. For purposes of this
paragraph, the "Discount Fraction" shall be a fraction the numerator of which
shall be the difference between the Fair Market Value of a share of the
capital stock subject to a right or warrant distributed to holders of shares
of Common Stock of the Corporation as contemplated by this paragraph
immediately after the distribution thereof and the purchase price per share
for such share of capital stock pursuant to such right or warrant and the
denominator of which shall be the Fair Market Value of a share of such
capital stock immediately after the distribution of such right or warrant.
(d) For purposes of this Amended and Restated Certificate of
Incorporation, the "Fair Market Value" of a share of capital stock of the
Corporation (including a share of Common Stock) on any date shall be deemed
to be the average of the daily closing price per share thereof over the 30
consecutive Trading Days (as such term is hereinafter defined) immediately
prior to such date; provided, however, that, in the event that such Fair
Market Value of any such share of capital stock is determined during a period
which includes any date that is within 30 Trading Days after (i) the ex-
dividend date for a dividend or distribution on stock payable in shares of
such stock or securities convertible into shares of such stock, or (ii) the
effective date of any subdivision, split, combination, consolidation, reverse
stock split or reclassification of such stock, then, and in each such case,
the Fair Market Value shall be appropriately adjusted by the Board of
Directors of the Corporation to take into account such dividend,
distribution, subdivision, split, combination, consolidation or
reclassification. The closing price for any day shall be the last sale
price, regular way, or, in case, no such sale takes place on such day, the
average of the closing bid and asked prices, regular way (in either case, as
reported in the applicable transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange), or,
if the shares are not listed or admitted to trading on the New York Stock
Exchange, as reported in the applicable transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the shares are listed or admitted to trading or, if the shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ")
or such other system then in use, or if on any such date the shares are not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the
shares selected by the Board of Directors of the Corporation. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares are listed or admitted to trading is open for
the transaction of business or, if the shares are not listed or admitted to
trading on any national securities exchange, on which the New York Stock
Exchange or such other national securities exchange as may be selected by the
Board of Directors of the Corporation is open. If the shares are not
publicly held or not so listed or traded on any day within the period of 30
Trading Days applicable to the determination of Fair Market Value thereof as
aforesaid, "Fair Market Value" shall mean the fair market value thereof per
share as determined in good faith by the Board of Directors of the
Corporation. In either case referred to in the foregoing sentence, the
determination of Fair Market Value shall be described in a statement filed
with the Secretary of the Corporation.
8. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each
outstanding share of Series A Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case
may be, for which or into which each share of Common Stock is changed or
exchanged multiplied by the highest of the Vote Multiple, the Dividend
Multiple or the Liquidation Multiple in effect immediately prior to such
event.
9. Effective Time of Adjustments.
(a) Adjustments to the Series A Preferred Stock required by the
provisions hereof shall be effective as of the time at which the event
requiring such adjustments occurs.
(b) The Corporation shall give prompt written notice to each
holder of a share of Series A Preferred Stock of the effect of any adjustment
to the voting rights, dividend rights or rights upon liquidation, dissolution
or winding up of the Corporation of such shares required by the provisions of
this Amended and Restated Certificate of Incorporation. Notwithstanding the
foregoing sentence, the failure of the Corporation to give such notice shall
not affect the validity of or the force or effect of or the requirement for
such adjustment.
10. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Corporation may
acquire shares of Series A Preferred Stock in any other manner permitted by
law and the provisions hereof and the Amended and Restated Certificate of
Incorporation of the Corporation.
11. Ranking. Unless otherwise provided in the Amended and Restated
Certificate of Incorporation of the Corporation, or a Certificate of
Designation relating to a subsequent series of preferred stock of the
Corporation, the Series A Preferred Stock shall rank junior to all other
series of the Corporation's preferred stock as to the payment of dividends
and the distribution of assets on liquidation, dissolution or winding up and
senior to the Common Stock.
12. Amendment. The provisions hereof and the Amended and Restated
Certificate of Incorporation of the Corporation shall not be amended in any
manner which would adversely affect the rights, privileges or powers of the
Series A Preferred Stock without, in addition to any other vote of
stockholders required by law, the affirmative vote of the holders of two-
thirds or more of the outstanding shares of Series A Preferred Stock, voting
together as a single class."
B. ADDITIONAL SERIES OF PREFERRED STOCK. The Preferred Stock, other than
the Series A Junior Preferred Stock, authorized by this Amended and Restated
Certificate of Incorporation may be issued by the Board of Directors from
time to time in one or more series. Subject to Article SEVENTH, the Board of
Directors is hereby authorized to fix or alter the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of redemption,
including sinking fund provisions, the redemption price or prices, and the
liquidation preferences of any wholly unissued class or series of Preferred
Stock, and the number of shares constituting any such series and the
designation thereof, or any of them.
C. COMMON STOCK. The terms of the Common Stock shall be as follows:
1. Dividend. Holders of Common Stock will be entitled to receive such
dividends as may be declared by the Board of Directors.
2. Distribution of Assets. In the event of the voluntary or
involuntary liquidation, distribution or winding up of the Corporation,
holders of Common Stock will be entitled to receive pro rata all of the
remaining assets of the Corporation available for distribution to its
stockholders.
3. Voting Rights. The holders of Common Stock shall have the general
right to vote for all purposes, including the election of directors, as
provided by law. Each holder of Common Stock shall be entitled to one vote
for each share thereof held.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The number of directors of the Corporation shall be such as from time to
time shall be fixed by, or in the manner provided in the by-laws. Election
of directors need not be by ballot unless the by-laws so provide.
B. The Board of Directors shall have power without the assent or vote of
the stockholders to make, alter, amend, change, add to or repeal the by-laws
of the Corporation as provided in the by-laws of the Corporation; to fix and
vary the amount to be reserved for any proper purpose; to authorize and cause
to be executed mortgages and liens upon all or any part of the property of
the Corporation; to determine the use and disposition of any surplus or net
profits; and to fix the times for the declaration and payment of dividends.
C. The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such
act or contract, and any contract or act that shall be approved or be
ratified by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be as valid and binding upon
the Corporation and upon all stockholders as though it had been approved or
ratified by every stockholder of the Corporation, whether or not the contract
or act would otherwise be open to legal attack because of directors'
interest, or for any other reason.
D. In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done
by the Corporation; subject, nevertheless, to the provisions of the statutes
of Delaware, of this certificate, and to any by-laws from time to time made
by the stockholders; provided, however, that no by-law so made shall
invalidate any prior act of the directors which would have been valid if such
by-law had not been made.
SIXTH: A. The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented.
B. The Corporation, 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, shall 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 matter 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 administration of such a person.
C. Any modification of this Paragraph 6 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 appeal on modification.
SEVENTH: Pursuant to Section 1123(a)(6) of the Bankruptcy Code of 1978,
as amended, the Corporation shall be prohibited from authorizing the issuance
of any class, or series thereof, of nonvoting equity shares, within the
meaning of such section.
EIGHTH: The Corporation shall not be governed by Section 203 of the
Delaware Code.
The amendments of the Certificate of Incorporation of the
Corporation herein certified were duly adopted, pursuant to the provisions of
Section 241 of the Delaware Code.
Dated: June 9, 2000.
/s/ Brian G. Kelly
__________________________
Brian G. Kelly
