EXHIBIT 3.4
RESTATED CERTIFICATE OF INCORPORATION
OF
AVON PRODUCTS, INC.
Under Section 807 of the Business Corporation Law
We, ANDREA JUNG, the President and Chief Executive Officer of AVON
PRODUCTS, INC. (the "Corporation") and WARD M. MILLER, JR., the Secretary of
the Corporation, do hereby certify as follows:
1. The name of the Corporation is AVON PRODUCTS, INC. and the name under
which the Corporation was formed is California Perfume Company, Inc.
2. The Certificate of Incorporation was filed by the Department of State
of the State of New York on January 27, 1916.
3. Article IIIA, which established a Series A Junior Participating
Preferred Stock, has been deleted to reflect the expiration of a related
Shareholder Rights Plan. Former ARTICLE IIIB, which established a Series B
Junior Participating Preferred Stock related to the Shareholder Rights Plan
that became effective March 31, 1998, has been re-captioned as new ARTICLE
IIIA. The total number of shares will not be changed.
4. The text of the Certificate of Incorporation of the Corporation is
hereby restated and amended to read as herein set forth in full:
ARTICLE I: The corporate name is
AVON PRODUCTS, INC.
ARTICLE II: The purposes for which the Corporation is formed are:
To develop, manufacture, produce, provide, operate, distribute and deal
in and with services, property and goods of all kinds including without
limitation engaging in the manufacture and distribution of cosmetics and
toiletries.
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To engage in any lawful act or activity for which corporations may
organized Under the Business Corporation Law and the Sate of New York.
ARTICLE III: The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 825,000,000 shares,
divided into two classes consisting of 800,000,000 shares of Common Stock, par
value $.25 per share (the "Common Stock"), and 25,000,000 shares of
Preferred Stock, par value $1.00 per share (the "Preferred Stock").
The shares of authorized Common Stock of the Corporation shall be
identical in all respects and shall have equal rights and privileges.
The Board of Directors shall have authority by resolution to issue the
shares of Preferred Stock from time to time on such terms as it may determine
and to divide the Preferred Stock into one or more classes or series and, in
connection with the creation of any such class or series, to determine and fix
by the resolution or resolutions providing for the issuance of shares thereof
the designation, powers and relative participating, optional, or other special
rights of such class or series, and the qualifications, limitations or
The holders of capital stock of the Corporation shall not have any
preemptive rights.
ARTICLE IIIA: Series B Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series B Junior Participating Preferred Stock" (the
"Series B Preferred Stock") and the number of shares constituting the Series
B Preferred Stock shall be 2,000,000. Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided, that no
decrease shall reduce the number of shares of Series B Preferred Stock to a
number less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options, rights
or warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series B Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series B Preferred Stock with respect to dividends, the holders of shares of
Series B Preferred Stock, in preference
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to the holders of Common Stock, par value $0.25 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash on the
first day of March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of share of Series B Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock 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 B
Preferred Stock. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to which holders of shares
of Series B Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying
such amount 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 a dividend or distribution on the
Series B Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $10 per share
on the Series B Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series B Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record
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date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Series B
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid
on the shares of Series B 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 B Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series B Preferred
Stock shall have the following voting rights:
(B) Subject to the provision for adjustment hereinafter set forth, each
share of Series B Preferred Stock Shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which holders
of shares of Series B Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number 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 herein, in any other Certificate of
Amendment creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series B Preferred Stock and the holders of
shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
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(C) Except as set forth herein, or as otherwise provided by law, holders
of Series B Preferred Stock shall have no 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 taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series B Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred Stock,
except dividends paid ratably on the Series B 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;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series B Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series B Preferred Stock, or any shares of stock ranking on a parity
with the Series B Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of Directors) 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.
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(B) The Corporation shall not permit any subsidiary 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.
Section 5. Reacquired Shares. Any shares of Series B 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 shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation or in any other Certificate
of Amendment creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of shares of Series B
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment provided that the holders of shares of
Series B Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of
shares of Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series B Preferred Stock, except distributions made ratably on the
Series B Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate amount
to which holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount 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.
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Section 7. 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
share of Series B Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series B Preferred Stock
shall be adjusted by multiplying such amount 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.
Section 8. No Redemption. The shares of Series B Preferred Stock shall
not be redeemable.
Section 9. Rank. The Series B Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series B Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series B Preferred
Stock, voting together as a single class.
ARTICLE IV: The office of the Corporation is to be located in the City
and County of New York, State of New York.
ARTICLE V: The number of directors of the Corporation shall be not less
than ten (10) nor more than twenty (20). The number of directors to be chosen
within said maximum and minimum limits shall be determined in the manner
prescribed by the By-Laws.
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The Board of Directors shall be divided into three classes as nearly
equal in number as possible, with each class having at least three members,
with the term of office of one class expiring each year. At the annual
meeting of shareholders in 1986, directors of the first class were elected to
hold office for a term expiring at the next succeeding annual meeting,
directors of the second class were elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third class were
elected to hold office for a term expiring at the third succeeding annual
meeting.
At each annual meeting of shareholders after 1986, successors to the
directors whose terms shall then expire shall be elected to hold office for
terms expiring at the third succeeding annual meeting. Any vacancies in the
Board of Directors, by reason of an increase in the number of directors or
otherwise, shall be filled solely by the Board of Directors, by majority vote
of the directors then in office, though less than a quorum, but any such
director so elected shall hold office only until the next succeeding annual
meeting of shareholders. At such annual meeting, such director shall be
elected and qualified in the class in which such director is assigned to hold
office for the term or remainder of the term of such class. Directors shall
continue in office until others are chosen and qualified in their stead. When
the number of directors is changed, any newly created directorships or any
decrease in directorships shall be so assigned among the classes by a majority
of the directors then in office, though less than a quorum, so as to make all
classes as nearly equal in number as possible. To the extent of any
inequality within the limits of the foregoing, the class or classes caused to
have the greatest or greater number of directorships shall be the class or
classes then having the last date or the later dates for the expiration of its
or their terms. No decrease in the number of directors shall shorten the term
of any incumbent director.
Any director may be removed from office as a director but only for cause
by the affirmative vote of the holders of eighty percent (80%) of the combined
voting power of the then outstanding shares of stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class.
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
eighty percent (80%) of the combined voting power of the then outstanding
shares of the stock of the Corporation entitled to vote generally on the
election of directors, voting together as a single class, shall be required to
alter, amend or adopt any provisions inconsistent with or repeal this Article
V.
The directors need not be shareholders of the Corporation.
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ARTICLE VI: At all elections of directors of the Corporation each
shareholder shall be entitled to as many votes as shall equal the number of
votes which (except for the provisions of this Article) he would be entitled
to cast for the election of directors with respect to his shares of stock
multiplied by the number of directors to be elected and he may cast all of
such votes for a single director or may distribute them among the number to be
voted for, or any two or more of them as he may see fit.
ARTICLE VII:
(A) In addition to any affirmative vote required by law or this Restated
Certificate of Incorporation:
1. any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) an Interested Shareholder (as hereinafter
defined) or (b) any other corporation (whether or not itself an Interested
Shareholder which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Shareholder, or
2. any sale, lease, exchange, mortgage, pledge, grant of a security
interest, transfer or other disposition (in one transaction or a series of
transactions) to or with (a) an Interested Shareholder or (b) an Affiliate of
an Interested Shareholder of assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value (as hereinafter defined) of $25,000,000
or more, or
3. 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, having an aggregate Fair Market Value of $25,000,000 or
more to an Interested Shareholder or any Affiliate of an Interested
Shareholder in exchange for cash, securities or other property (or combination
thereof), or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate of an Interested Shareholder, or
5. any reclassification of securities (including any reverse stock
split), or recapitalization 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 an Interested Shareholder)
which has the effect, directly or indirectly,
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of increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
directly or indirectly beneficially owned by (a) an Interested Shareholder or
(b) an Affiliate of an Interested Shareholder shall require either:
(A) the approval of a majority of the Disinterested Directors (as
hereinafter defined) or (b) the affirmative vote of the holders of that amount
of the voting power of the Voting Stock (as hereinafter defined) equal to the
sum of (1) the voting power of the shares of Voting Stock of which their
Interested Shareholder is the beneficial owner and (2) a majority of the
voting power of the remaining outstanding shares of Voting Stock, voting
together as a single class; provided, however, that no such vote shall be
required for the purchase by the Corporation of shares of Voting Stock from an
Interested Shareholder unless such vote is required by Paragraph (B) of this
Article VII.
(B) Any purchase by the Corporation of shares of Voting Stock from an
Interested Shareholder, other than pursuant to an offer to the holders of all
of the outstanding shares of the same class of Voting Stock as those so
purchased, at a per share price in excess of the Market Price (as hereinafter
defined), at the time of such purchase, of the shares so purchased, shall
require the affirmative vote of the holders of that amount of the voting power
of the Voting Stock equal to the sum of (i) the voting power of the shares of
Voting Stock of which the Interested Shareholder is the beneficial owner (as
hereinafter defined) and (ii) a majority of the voting power of the remaining
outstanding shares of Voting Stock, voting together as a single class.
(C) It shall be the duty of any Interested Shareholder:
i. to give or cause to be given written notice to the Corporation,
immediately upon becoming an Interested Shareholder, of such person's status
as an Interested Shareholder and of such other information as the Corporation
may reasonably require with respect to identifying all owners and amount of
ownership of the outstanding Voting Stock of which such Interested Shareholder
is the beneficial owner, and
ii. to notify the Corporation promptly in writing of any change in the
information provided in subparagraph (i) of this Paragraph (C), provided,
however, that the failure of an Interested Shareholder to comply with the
provisions of this Paragraph (C) shall not in any way be construed to prevent
the Corporation from enforcing the provisions of Paragraphs (A) and (B) of
this Article VII.
(D) For the purposes of this Article VII:
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1. "Voting Stock" shall mean the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors.
2. "Person" shall mean any individual, firm, Corporation or other
entity.
3. "Interested Shareholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
a) is the beneficial owner, directly or indirectly of 5% or more of the
voting power of the outstanding Voting Stock; or
b) 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 5% or more of the voting power of the then
outstanding Voting Stock; or
c) is an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of Voting Stock which were at any time within the two-
year period immediately prior to the date in question beneficially owned by an
Interested Shareholder, 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.
For the purposes of determining whether a person is an Interested Shareholder,
the number of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned through application of subparagraph 4 below but shall not
include any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
4. A person shall be a "beneficial owner" of any Voting Stock:
a) which such person or any of its Affiliates or Associates beneficially
owns, directly or indirectly; or
b) which such person or any of its Affiliates or Associates has (i) 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 (ii) the right to vote or to direct the voting
thereof pursuant to any agreement, arrangement or understanding; or
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c) which is beneficially owned, directly or indirectly, by any other
person with which such person or its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of Voting Stock.
5. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities and Exchange Act of 1934, as in effect on January 1,
1986.
6. "Subsidiary" shall mean any corporation of which a majority of
any class of equity security is owned directly or indirectly, by the
Corporation; provided, however, that, for purposes of the definition of
Interested Shareholder set forth in subparagraph 3, the term "Subsidiary"
shall mean only a corporation of which a majority of the voting power of the
capital stock entitled to vote generally in the election of directors is
owned, directly or indirectly, by the Corporation.
7. "Disinterested Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with an Interested
Shareholder and was a member of the Board prior to the time that such
Interested Shareholder became an Interested Shareholder, and any successor of
a Disinterested Director who is unaffiliated with an Interested Shareholder
and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board.
8. "Market Price" means the last closing sale price immediately
preceding the time in question of a share of the stock in question on the
Composite Tape for New York Stock Exchange-Listed Stocks.
9. "Fair Market Value" means: (i) in the case of stock, the Market
Price, and (ii) 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 the
Board in good faith.
(E) A majority of the Disinterested Directors shall have the power to
determine for the purpose of this Article VII on the basis of information
known to them after reasonable inquiry (1) whether a person is an Interested
Shareholder, (2) the number of shares of Voting Stock beneficially owned by
any person, (3) whether a person is an Affiliate or Associate of another and
(4) whether a transaction or series of transactions constitutes one of the
transactions specified in Paragraph (A) hereof. The good faith determination
of a majority of the Disinterested Directors shall be conclusive and binding
for all purposes of this Article VII.
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(F) Notwithstanding any other provision of this Restated Certificate of
Incorporation or the By-Laws of the Corporation or the fact that a lesser
percentage may be specified by law, this Restated Certificate of Incorporation
or the By-Laws of the Corporation, the affirmative vote of the holders of at
least eighty percent (80%) of the combined voting power of the then
outstanding Voting Stock, voting together as a single class, shall be required
to amend, alter, repeal or adopt any provision inconsistent with this Article
VII.
The Secretary of State is designed as the agent of the Corporation upon
whom process in any action or proceeding against it may be served; and the
address to which the Secretary of State shall mail a copy of any process
against the Corporation which may be served upon him pursuant to law is:
1345 Avenue of the Americas
New York, NY 10105-0196
ARTICLE VIII: No person who is or was a director of the Corporation
shall have personal liability to the Corporation or its shareholders for
damages for any breach of duty in such capacity, provided that the foregoing
shall not limit the liability of any such person (i) if a judgment or other
final adjudication adverse to him establishes that his acts or omissions were
in bad faith or involved intentional misconduct or a knowing violation of law
or that he personally gained, in fact, a financial profit or other advantage
to which he was not legally entitled or that his acts violated Section 719 of
the Business Corporation Law of New York or, (ii) for any act or omission
occurring prior to the adoption of this Article VIII. No amendment to or
repeal of this Article VIII shall apply to or have any effect on the liability
or alleged liability of any such person to the Corporation for or with respect
to any acts or omissions of such person occurring prior to such amendment or
repeal. If the Business Corporation Law of New York is amended hereafter to
expand or limit the liability of a director, then the liability of a person
who is or was a director of the Corporation shall be deemed to be expanded to
the extent required or limited to the extent permitted by the Business
Corporation Law of New York, as so amended.
This restatement of the Certificate of Incorporation was authorized by
the Board of Directors of the Corporation and the holders of a majority of all
the outstanding shares of stock of the Corporation.
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IN WITNESS WHEREOF, we have subscribed this certificate as of the
day of May, 2000 and we affirm the statements contained herein as true
under the penalties of perjury.
/s/ Andrea Jung
Andrea Jung, President and
Chief Executive Officer
/s/ Ward M. Miller, Jr.
Ward M. Miller, Jr.
Secretary
