EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
OPTEL, INC.
a Delaware corporation
OpTel, Inc., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. That the name of the corporation is OpTel, Inc. The corporation was
originally incorporated under the same name in the State of Delaware on July 1,
1994.
2. That this corporation has not received any payment for any of its
stock.
3. That the Certificate of Incorporation of this corporation is amended
and restated as set forth in the Restated Certificate of Incorporation attached
hereto as Exhibit A.
4. That the Restated Certificate of Incorporation was duly adopted by
resolution of the Board of Directors as of December 19, 1994, in accordance with
Sections 241 and 245 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, OpTel, Inc. has caused this Restated Certificate of
Incorporation to be signed by its President this 19th day of December, 1994.
OpTel, Inc.
By: /s/ Jonathan D. Lloyd
---------------------------------------
Jonathan D. Lloyd, President
EXHIBIT A
RESTATED
CERTIFICATE OF INCORPORATION
OF
OPTEL, INC.
a Delaware corporation
ONE: The name of this corporation is: OpTel, Inc.
TWO: The address of this corporation's registered office in the State
of Delaware is 1050 S. State Street in the City of Dover, County of Kent. The
name of its registered agent at such address is CorpAmerica, Inc.
THREE: The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations may
be organized under the Delaware General Corporation Law (the "DGCL").
FOUR: The total number of shares of all classes of stock which the
corporation shall have authority to issue is four million (4,000,000), divided
into the following classes:
(i) two million (2,000,000) shares of Class A Common Stock,
par value of one cent ($.01) per share (hereinafter referred to as "Class A
Common Stock");
(ii) one million (1,000,000) shares of Class B Common Stock,
par value of one cent ($.01) per share (hereinafter referred to as "Class B
Common Stock"); and
(iii) one million (1,000,000) shares of Preferred Stock, par
value of one cent ($.01) per share (hereinafter referred to as "Preferred
Stock").
The corporation's Class A Common Stock and Class B
Common Stock are referred to hereinafter collectively as the "Common Stock".
A. Powers and Rights of Holders of Class A Common
Stock and Class B Common Stock.
1. Except as stated in Section 4 of this Article
FOUR, the Class A Common Stock and Class B Common Stock shall be identical in
all respects and shall have equal powers, preferences, rights and privileges;
2. The holders of the Class A Common Stock and the
Class B Common Stock issued and outstanding shall have and possess the exclusive
right to notice of stockholders' meetings and the exclusive voting rights and
powers;
3. Any purported transfer of shares of Class B
Common Stock other than to a Permitted Transferee (as defined herein) shall
result in the conversion of the shares of Class B Common Stock being transferred
into the like number of shares of Class A Common Stock. No such transfer shall
be effective unless and until the transferor has surrendered to the corporation,
at its office or agency maintained for that purpose, the Certificates
representing the shares of Class B Common Stock to be transferred, which
certificates shall be duly endorsed or accompanied by executed stock powers,
with the signatures appropriately guaranteed. All such certificates shall be
accompanied by written notice of the holder's intention to transfer the shares,
including a statement of the number of shares of Class B Common Stock to be
transferred and the name or name(s) and addresses in which the certificate or
certificates for shares of Class A Common Stock issuable upon such conversion
shall be issued and, if required, funds for the payment of any applicable
transfer taxes. The corporation will, as soon as practicable thereafter, deliver
at said office to the transferee of converted shares of Class A Common Stock, or
to any nominee or designee of such transferee, a certificate or certificates for
the number of full shares of Class A Common Stock issuable upon such conversion
and, in the event that the transferor is transferring less than the aggregate
number of shares represented by the Certificates surrendered, a certificate or
certificates for the number of full shares of Class B Common Stock not being
transferred. Shares of Class B Common Stock shall be deemed to have been
converted as of the date of the surrender of the shares for conversion as
hereinbefore provided, and the person or persons in whose name Class A Common
Stock is issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such Class A Common Stock on such date. Shares of
Class B Common Stock so converted shall be returned to the status of authorized
and unissued shares of Class B Common Stock. The corporation, may, as a
condition to the transfer or the registration of transfer of shares of Class B
Common Stock to a purported Permitted Transferee, require the furnishing of such
affidavits or other proof as it deems necessary to establish that such
transferee is a Permitted Transferee. For purposes hereof, (i) "Permitted
Transferee" shall mean Vanguard Communications, L.P., a California limited
partnership, Vanguard Communications, Inc., a California corporation and VPC
Corporation, a Delaware corporation and each of their respective Affiliates,
(ii) "Affiliate" shall mean, with respect to any Person, another Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person, provided, however, that no employee of this
corporation or any of its subsidiaries shall be deemed to be an Affiliate solely
by reason of his capacity as an employee, or by reason of any employment
agreement, and (iii) "Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof;
4. Each holder of the Class A Common Stock issued
and outstanding shall be entitled to one (1) vote for each share of Class A
Common Stock standing in such holder's name on the books of the corporation,
and each holder of the Class B Common Stock issued and outstanding shall be
entitled to ten (10) votes for each share of Class B Common Stock standing in
such holder's name on the books of the corporation. The holders of the Class A
Common Stock and Class B Common Stock shall vote together as a single class;
5. Dividends may be paid to the holders of the Class
A Common Stock and Class B Common Stock, as and when declared by the Board of
Directors, out of any funds of the corporation legally available for the payment
of such dividends. If and when dividends on the Class A Common Stock and Class B
Common Stock are declared from time to time by the Board of Directors, whether
payable in cash, in property or in shares of stock of the corporation, the
holders of the Class A Common Stock and Class B Common Stock shall be entitled
to share equally, on a per share basis, in such dividends;
6. Upon liquidation, dissolution or winding up of
the corporation, whether voluntary or involuntary, the net assets of the
corporation shall be distributed pro rata to the holders of the Class A Common
Stock and Class B Common Stock; and
7. If the corporation shall in any manner split,
subdivide or combine the outstanding shares of Class A Common Stock or Class B
Common Stock, the outstanding shares of the other such class of Common Stock
shall be proportionately split, subdivided or combined in the same manner and on
the same basis as the outstanding shares of the class of Common Stock that have
been split, subdivided or combined, unless a different basis has been consented
to by the holders of a majority of the outstanding shares of the class of Common
Stock that would be adversely affected by such action.
B. Preferred Stock. The Board of Directors is
authorized, subject to any limitations prescribed by law, to provide for the
issuance of the shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the shares
of each such series and any qualifications, limitations or restrictions thereof.
The number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the approval of
a majority of the votes entitled to be cast by the holders of the Common Stock,
without a vote of the holders of the Preferred Stock, or of any series thereof,
unless a vote of any such holders is required pursuant to the certificate or
certificates establishing the series of Preferred Stock.
FIVE: The following provisions are inserted for the management of the
business and the conduct of the affairs of this corporation, and for further
definition, limitation and regulation of the powers of this corporation and of
its directors and stockholders:
A. The business and affairs of this corporation
shall be managed by or under the direction of the Board of Directors. In
addition to the powers and authority expressly conferred upon them by the DGCL
or by this Restated Certificate of Incorporation or the Bylaws of
this corporation, the directors are hereby empowered to exercise all such powers
and do all such acts and things as may be exercised or done by this corporation.
B. The Board of Directors may adopt, amend or repeal
the Bylaws of this corporation.
C. Election of directors need not be by written
ballot.
SIX: The officers of this corporation shall be chosen in such a manner,
shall hold their offices for such terms and shall carry out such duties as are
determined solely by the Board of Directors, subject to the right of the Board
of Directors to remove any officer or officers at any time with or without
cause.
SEVEN: No director of this corporation shall be personally liable to
this corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to this corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL or (iv) for any transaction from which such director derived an
improper personal benefit. This Article SEVEN is also contained in Article VIII,
Section 1 of this corporation's Bylaws. No amendment to or repeal of this
Article SEVEN shall apply to or have any effect on the liability or alleged
liability of any director of this corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal. If the
DGCL is amended hereafter to further eliminate or limit the personal liability
of directors, the liability of a director of this corporation shall be limited
or eliminated to the fullest extent permitted by the DGCL, as amended.
EIGHT: A. Right to Indemnification. Each person who was or is made a
party to or is threatened to be made a party to or is involuntarily involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she is or was a
director or officer of this corporation, or is or was serving (during his or her
tenure as director and/or officer) at the request of this corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, whether the basis of such Proceeding
is an alleged action or inaction in an official capacity as a director or
officer or in any other capacity while serving as a director or officer, shall
be indemnified and held harmless by this corporation to the fullest extent
authorized by the DGCL (or other applicable law), as the same exists or may
hereafter be amended, 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 with such Proceeding. Such director or officer shall have the
right to be paid by this corporation for expenses incurred in defending any such
Proceeding in advance of its final disposition; provided, however, that, if the
DGCL (or other applicable law) requires, the payment of such expenses in advance
of the final disposition of any such Proceeding shall be made only upon receipt
by this corporation of an undertaking by or on behalf of such director or
officer to repay all amounts so advanced if it should be determined ultimately
that he or she is not entitled to be indemnified under this Article EIGHT or
otherwise.
B. Right of Claimant to Bring Suit. If a claim under
paragraph A of this Article EIGHT is not paid in full by this corporation
within ninety (90) days after a written claim has been received by this
corporation, the claimant may at any time thereafter bring suit against this
corporation to recover the unpaid amount of the claim, together with interest
thereon, and, if successful in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim, including reasonable
attorneys' fees incurred in connection therewith. 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 tendered to this
corporation) that the claimant has not met the standards of conduct which make
it permissible under the DGCL (or other applicable law) for this corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on this corporation. Neither the failure of this corporation
(or of its full Board of Directors, its directors who are not parties to the
Proceeding with respect to which indemnification is claimed, its stockholders,
or independent legal counsel) 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 (or other applicable law), nor an actual determination by
any such person or persons that such claimant has not met such applicable
standard of conduct, shall be a defense to such action or create a presumption
that the claimant has not met the applicable standard of conduct.
C. Non-Exclusivity of Rights. The rights conferred
by this Article EIGHT shall not be exclusive of any other right which any
director, officer, representative, employee or other agent may have or hereafter
acquire under the DGCL or any other statute, or any provision contained in this
corporation's Restated Certificate of Incorporation or Bylaws, or any agreement,
or pursuant to a vote of stockholders or disinterested directors, or otherwise.
D. Insurance and Trust Fund. In furtherance and not
in limitation of the powers conferred by statute:
(1) this corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of this corporation, or is serving at the request of this corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not this corporation would have the power to
indemnify him or her against such liability under the provisions of law; and
(2) this corporation may create a trust fund,
grant a security interest and/or use other means (including, without limitation,
letters of credit, surety bonds and/or other similar arrangements), as well as
enter into contracts providing indemnification to the fullest extent permitted
by law and including as part thereof provisions with respect to any or all of
the foregoing, to ensure the payment of such amount as may become necessary to
effect indemnification as provided therein, or elsewhere.
E. Indemnification of Employees and Agents of this
Corporation. This corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification, including the right
to be paid by this corporation the expenses incurred in defending any Proceeding
in advance of its final disposition, to any employee or agent of this
corporation to the fullest extent of the provisions of this Article or otherwise
with respect to the indemnification and advancement of expenses of directors and
officers of this corporation.
F. Amendment. This Article EIGHT is also contained
in Article VIII, Sections 2 through 7, of this corporation's Bylaws. Any repeal
or modification of this Article EIGHT shall not change the rights of any officer
or director to indemnification with respect to any action or omission occurring
prior to such repeal or modification.
NINE: This corporation reserves the right to alter, amend, rescind or
repeal any provision contained in this Restated Certificate of Incorporation, in
the manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
OPTEL, INC.
----------------------------------------------
Under Section 242 of the Delaware General
Corporation Law
----------------------------------------------
Pursuant to the provisions of Section 242 of the General Corporation
Law of the State of Delaware, the undersigned, being authorized officers of
OpTel, Inc. do hereby certify that:
FIRST: The name of the corporation is OpTel, Inc.
(hereinafter referred to as the "Corporation").
SECOND: The Certificate of Incorporation of the Corporation
was filed with the Office of the Secretary of State of the State of Delaware on
July 1, 1994 and restated by Restated Certificate of Incorporation, filed with
the Office of the Secretary of State of Delaware on December 19, 1994.
THIRD: The Restated Certificate of Incorporation of
the Corporation is hereby amended by deleting Article FOUR in its
entirety and replacing it with the following:
"FOUR: The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
fifteen million three hundred thousand (15,300,000) shares
divided into the following classes:
(i) Eight million (8,000,000) shares of Class A Common Stock,
par value of one cent ($.01) per share (hereinafter referred to as "Class A
Common Stock");
(ii) Six million (6,000,000) shares of Class B Common Stock,
par value of one cent ($.01) per share (hereinafter referred to as "Class B
Common Stock");
(iii) Three hundred thousand (300,000) shares of Class C
Common Stock, par value of one cent ($.01) per share (hereinafter referred to as
"Class C Common Stock"); and
(iv) One million (1,000,000) shares of Preferred Stock, par
value of one cent ($.01) per share (hereinafter referred to as "Preferred
Stock").
The Corporation's Class A Common Stock, Class B Common
Stock and Class C Common Stock are referred to hereinafter
collectively as the "Common Stock".
A. Powers and Rights of Holders of Class A Common
Stock, Class B Common Stock and Class C Common Stock.
1. Except as stated in Sections 2 and 3 of this Article FOUR,
the Class A Common Stock, Class B Common Stock and Class C Common Stock shall be
identical in all respects and shall have equal powers, preferences, rights and
privileges;
2. Except as may be otherwise required by law, and subject to
the provisions of any series of Preferred Stock at the time outstanding, the
holders of the Class A Common Stock and the Class B Common Stock issued and
outstanding shall have and possess the exclusive right to notice of
stockholders' meetings and the exclusive voting rights and powers, whether at a
meeting of stockholders or in connection with any action taken by written
consent; except as otherwise may be required by law, the holders of Class C
Common Stock are not entitled to notice of, or to vote at, stockholders'
meetings or in connection with any action taken by written consent;
3. Each holder of the Class A Common Stock issued and
outstanding shall be entitled to one (1) vote for each share of Class A Common
Stock standing in such holder's name on the books of the Corporation, and each
holder of the Class B Common Stock issued and outstanding shall be entitled to
ten (10) votes for each share of Class B Common Stock standing in such holder's
name on the books of the Corporation. Except as may be otherwise required by
law, the holders of the Class A Common Stock and Class B Common Stock shall vote
together as a single class;
4. Any purported transfer of shares of Class B Common Stock
other than to a Permitted Transferee (as defined herein) shall result in the
conversion of the shares of Class B Common Stock being transferred into the like
number of shares of Class A Common Stock. No such transfer shall be effective
unless and until the transferor has surrendered to the Corporation, at its
office or agency maintained for that purpose, the certificates representing the
shares of Class B Common Stock to be transferred, which certificates shall be
duly endorsed or accompanied by executed stock powers, with the signatures
appropriately guaranteed. All such certificates shall be accompanied by written
notice of the holder's intention to transfer the shares, including a statement
of the number of shares of Class B Common Stock to be transferred and the name
or name(s) and addresses in which the certificate or certificates for shares of
Class A Common Stock issuable upon such conversion shall be issued and, if
required, funds for the payment of any
applicable transfer taxes. The Corporation will, as soon as practicable
thereafter, deliver at said office to the transferee of converted shares of
Class B Common Stock, or to any nominee or designee of such transferee, a
certificate or certificates for the number of full shares of Class A Common
Stock issuable upon such conversion and, in the event that the transferor is
transferring less than the aggregate number of shares represented by the
certificates surrendered, a certificate or certificates for the number of full
shares of Class B Common Stock not being transferred. Shares of Class B Common
Stock shall be deemed to have been converted as of the date of the surrender of
the shares for conversion as hereinbefore provided, and the person or persons in
whose name Class A Common Stock is issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such Class A Common
Stock on such date. Shares of Class B Common Stock so converted shall be
returned to the status of authorized and unissued shares of Class B Common
Stock. The Corporation shall at all times reserve for issuance sufficient shares
of Class A Common Stock (which may include Class A Common Stock held by the
Corporation as treasury stock), for issuance upon conversion of the Class B
Common Stock. The Corporation, may, as a condition to the transfer or the
registration of transfer of shares of Class B Common Stock to a purported
Permitted Transferee, require the furnishing of such affidavits or other proof
as it deems necessary to establish that such transferee is a Permitted
Transferee. For purposes hereof (i) "Permitted Transferee" shall mean Vanguard
Communications, L.P., a California limited partnership, Vanguard Communications,
Inc., a California corporation and VPC Corporation, a Delaware corporation and
each of their respective Affiliates, (ii) "Affiliate" shall mean, with respect
to any Person, another Person directly or indirectly controlling, controlled by,
or under direct or indirect common control with, such Person provided, however,
that no employee of this corporation or any of its subsidiaries shall be deemed
to be an Affiliate solely by reason of his capacity as an employee, or by reason
of any employment agreement, and (iii) "Person" shall mean and include an
individual, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency
thereof;
5. Upon any sale of Common Stock of the Corporation pursuant
to a registration statement under the securities Act of 1933 (or any successor
statute) or any registration of Common Stock of the Corporation pursuant to the
Securities Exchange Act of 1934 (or any successor statute) ("the "Exchange
Act"), the shares of Class C Common Stock will automatically be converted into
an equal number of shares of Class A Common Stock or such other class of common
equity securities of the Corporation that is registered with the Securities and
Exchange Commission or is listed on a national securities exchange or otherwise
subject to registration under the Exchange Act (the "Conversion Shares"),
provided the terms thereof are no less favorable to holders thereof than were
the shares of Class C Common Stock. The Corporation shall at all times reserve
for issuance sufficient shares of Class A Common Stock (which may include Class
A Common Stock held by the Corporation as treasury stock) or such other common
equity securities, for issuance upon conversion of the Class C Common Stock. The
Corporation will, as soon as practicable thereafter, deliver to the holder of
the Class C Common Stock converted into the Conversion Shares a certificate or
certificates for the Conversion Shares against receipt from such holder of the
certificate theretofore representing an equal number of shares of Class C Common
Stock. Shares of Class C Common Stock so converted shall be returned to the
status of authorized and unissued shares of Class C Common Stock;
6. Dividends may be paid to the holders of the Class A Common
Stock, Class B Common Stock and Class C Common Stock, as and when declared by
the Board of Directors, out of any funds of the Corporation legally available
for the payment of such dividends. If and when dividends on the Class A Common
Stock, Class B Common Stock and Class C Common Stock are declared from time to
time by the Board of Directors, whether payable in cash, in property or in
shares of stock of the Corporation, the holders of the Class A Common Stock,
Class B Common Stock and Class C Common Stock shall be entitled to share
equally, on a per share basis, in such dividends. If shares of Class B Common
Stock are paid on Class B Common Stock and shares of Class A Common Stock are
paid on Class A Common Stock and shares of Class C Common Stock are paid on
Class C Common Stock, in an equal amount per share of Class B Common and Class A
Common and Class C Common Stock in proportionate amounts, such payment will be
deemed to be a like dividend or other distribution.
7. Subject to the provisions of any series of Preferred Stock
at the time outstanding, upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the net assets of the Corporation
shall be distributed pro rata to the holders of the Class A Common Stock, Class
B Common Stock and Class C Common Stock, without regard to class; and
8. If the Corporation shall in any manner split, subdivide,
combine or reclassify any outstanding shares of a class of Common Stock, the
outstanding shares of the other such classes of Common Stock shall be
proportionately split, subdivided, combined or reclassified in the same manner
and on the same basis as the outstanding shares of the class of Common Stock
that have been split, subdivided, combined or reclassified, unless a different
basis has been consented to by the holders of a majority of the outstanding
shares of the Class A Common Stock or Class B Common Stock, as applicable, or
two-thirds of the
outstanding shares of Class C Common Stock to the extent any such class would be
adversely affected by such action.
Subject to the conversion rights of holders of Class C Common
Stock, in the event of any corporate merger, consolidation, purchase or
acquisition of property or stock or other reorganization in which any
consideration is to be received by the holders of Class B Common Stock or the
holders of Class A Common Stock, the holders of Class C Common Stock will
receive the same consideration on a per share basis, except that, if such
consideration shall consist in any part of voting securities (or of options or
warrants to purchase voting securities, or of securities convertible into or
exchangeable for voting securities), (i) the holders of Class B Common Stock may
receive, on a per share basis, voting securities with ten times the number of
votes per share as those voting securities to be received by the holders of
Class A Common Stock (or options or warrants to purchase, or securities
convertible into or exchangeable for voting securities with ten times the number
of votes per share as those voting securities issuable upon the exercise of the
options or warrants, or into which the convertible or exchangeable securities
may be converted or exchanged, received by the holders of Class A Common Stock)
and (ii) the holders of the Class C Common Stock may receive, on a per share
basis, non-voting securities (or options or warrants to purchase non-voting
securities or securities convertible into or exchangeable for non-voting
securities).
B. Preferred Stock. The Board of Directors is authorized, subject to
any limitations prescribed by law, to provide for the issuance of the shares of
Preferred Stock in one or more series, and by filing a certificate pursuant to
the applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the approval of a majority of the
votes entitled to be cast by the holders of the Common Stock, without a vote of
the holders of the Preferred Stock, or of any series thereof, unless a vote of
any such holders is required pursuant to the certificate or certificates
establishing the series of Preferred Stock."
FOURTH: This Amendment to the Restated Certificate of
Incorporation of the Corporation was authorized by Unanimous Written Consent of
the Board of Directors and by Unanimous Written Consent of the Shareholders of
the Corporation.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate of Amendment to the Certificate of Incorporation of the Corporation
as of this 10th day of February, 1997 and affirm that the statements set forth
herein are true and correct under the penalties of perjury.
By: /s/ Michael E. Katzenstein
--------------------------------
Name: Michael E. Katzenstein
Title: Vice President & General Counsel
By: /s/ Bertrand Blanchette
-------------------------------
Name: Bertrand Blanchette
Title: Chief Financial Officer