EXHIBIT 4.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ALTERNATE MARKETING NETWORKS, INC.
This Amended and Restated Certificate of Incorporation has been duly
adopted by Alternate Marketing Networks, Inc. (the "CORPORATION"), in accordance
with Sections 242 and 245 of the General Corporation Law of the State of
Delaware (the "DGCL"). The date of filing of the original certificate of
incorporation of the Corporation was April 8, 2002.
ARTICLE I
NAME
The name of the Corporation is Alternate Marketing Networks, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is 1201 N. Market St., 18th Floor, P.O. Box 1347 (19899), Wilmington,
County of New Castle, Delaware 19801, and the name of the registered agent of
the Corporation at such address is Delaware Corporation Organizers, Inc.
ARTICLE III
PURPOSE AND DURATION OF EXISTENCE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the DGCL and the
Corporation is to have perpetual existence.
ARTICLE IV
AUTHORIZATION AND DESCRIPTION OF STOCK
4.1 Authorization of Stock. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is 55,000,000 shares
of stock, which shall consist of (a) 50,000,000 shares of common stock, par
value $0.01 per share ("COMMON STOCK") and (b) 5,000,000 shares of preferred
stock, par value $0.01 per share ("PREFERRED STOCK").
Unless otherwise provided in any resolution(s) adopted by the board of
directors of the Corporation (the "BOARD OF DIRECTORS") pursuant to Section 4.3
(Description of Preferred Stock) which provide(s) for any series of Preferred
Stock, the number of authorized shares of Common Stock or Preferred Stock may be
increased or decreased (but not below the number of shares of Common Stock or
Preferred Stock then outstanding) by the affirmative vote of the holders of a
majority of the shares of Common Stock, irrespective of the provisions of
Section 242(b)(2) of the DGCL (or any successor provision thereto) and without a
vote, including, without limitation, a separate class or series vote, of the
holders of any Preferred Stock or series of Preferred Stock, unless a vote,
including, without limitation, a separate class or series vote, of any such
holders is required pursuant to this Amended and Restated Certificate of
Incorporation (this "CERTIFICATE OF INCORPORATION"), the resolution(s) providing
for such Preferred Stock or series of Preferred Stock, or any provision of the
DGCL, other than the provisions of Section 242(b)(2) (or any successor thereto).
4.2 Description of Common Stock.
(a) Voting Powers and Rights. Except as otherwise required by
applicable law or provided by this Certificate of Incorporation, each
holder of Common Stock, as such, shall be entitled to one (1) vote for
each share of Common Stock held of record by such holder on any and all
matters on which stockholders of the Corporation shall be entitled to
vote, including, without limitation, the election of directors of the
Corporation; provided, however, that, except as otherwise required by
applicable law, the holders of Common Stock, as such, shall not be
entitled to vote on any amendment to this Certificate of Incorporation
(including, without limitation, any certificate(s) of designations that
relate(s) to any series of Preferred Stock) that affects the terms of
one (1) or more outstanding series of Preferred Stock if the holders of
such affected series are entitled, either separately or together with
the holders of one (1) or more other such series, to vote on such
amendment pursuant to this Certificate of Incorporation (including,
without limitation, any certificate(s) of designations providing for any
series of Preferred Stock) or pursuant to the DGCL. The holders of
Common Stock shall not have cumulative voting rights.
(b) Dividends. Subject to applicable law and the preferences and
relative, participating, optional, or other special rights, if any, and
the qualifications, limitations, or restrictions thereof, if any, of the
holders of any outstanding Preferred Stock and any other shares of stock
of the Corporation with respect to the payment of dividends, dividends
may be declared and paid on the Common Stock at such times and in such
amounts as and if the Board of Directors in its discretion shall
determine. The holders of Common Stock, as such, shall be entitled to
share in any such dividend(s) ratably in proportion to the number of
shares of Common Stock held by each such holder.
(c) Liquidation. Upon any liquidation, dissolution, or winding
up of the Corporation, subject to applicable law and the preferences and
relative, participating, optional, or other special rights, if any, and
the qualifications, limitations, or restrictions thereof, if any, of the
holders of any outstanding Preferred Stock and any other shares of stock
of the Corporation with respect to the distribution of assets of the
Corporation upon such liquidation, dissolution, or winding up of the
Corporation, the holders of Common Stock, as such, shall be entitled to
receive the assets of the Corporation available for distribution to the
stockholders of the Corporation ratably in proportion to the number of
shares of Common Stock held by each such holder.
Neither the merger or consolidation of the Corporation with or
into another corporation or other corporations, the sale or transfer by
the Corporation of any or all of the assets of the Corporation, nor the
reduction of the stock of the Corporation, shall be deemed to be a
liquidation, dissolution, or winding up of the Corporation for purposes
of this Section 4.2(c) (Liquidation).
4.3 Description of Preferred Stock.
(a) Series of Preferred Stock. The Board of Directors is hereby
expressly authorized to provide, by resolution(s), out of the unissued
shares of Preferred Stock, for series of Preferred Stock and, with
respect to each such series, to fix the number of shares to be included
in such series, the voting powers, if any, of the shares of such series,
and the preferences and relative, participating, optional, or other
special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, of such series; and, in connection with
the foregoing, to file a certificate of designations in accordance with
the DGCL. The powers, preferences, and relative, participating,
optional, and other special rights, if any, and the qualifications,
limitations, or restrictions thereof, if any, of each series of
Preferred Stock, may differ from those of any and all other series of
Preferred Stock at any time outstanding.
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(b) Increases and Decreases in Series of Preferred Stock. Unless
otherwise provided in any resolution(s) adopted by the Board of
Directors which provide(s) for any series of Preferred Stock, the Board
of Directors may (i) increase the number of shares (but not above the
number of authorized shares of Preferred Stock) of any such series of
Preferred Stock to which such resolution(s) apply by resolution(s)
adopted by the Board of Directors which add(s) authorized and unissued
shares of Preferred Stock not designated for any other series of
Preferred Stock to such series of Preferred Stock or (ii) decrease the
number of shares (but not below the number of shares of the class of
Preferred Stock then outstanding) of any such series of Preferred Stock
to which such resolution(s) apply by resolution(s) adopted by the Board
of Directors which subtract(s) unissued shares of such series of
Preferred Stock designated for such series of Preferred Stock; and, in
connection with the foregoing, file a certificate of designations in
accordance with the DGCL. In case the number of shares of any series of
Preferred Stock shall be decreased pursuant to this Section 4.3(b)
(Increases and Decreases in Series of Preferred Stock), the number of
shares so subtracted from any such series of Preferred Stock in the
certificate(s) of designations shall become authorized, unissued, and
undesignated shares of Preferred Stock.
ARTICLE V
BOARD OF DIRECTORS
5.1 Powers. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, except as otherwise
provided by applicable law or this Certificate of Incorporation, which may
exercise all powers of the Corporation and perform all such lawful acts and do
all such lawful things that are not, by applicable law or this Certificate of
Incorporation, directed or required to be exercised, performed, or done by the
stockholders of the Corporation.
5.2 Number. Except as otherwise provided by or fixed pursuant to the
provisions of Section 4.3 (Description of Preferred Stock) with respect to the
right(s) of holders of any Preferred Stock or series of Preferred Stock to elect
any additional director(s), the number of directors which shall constitute the
"whole" (as defined below) Board of Directors shall be not less than five (5)
and shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by the Board of Directors. For purposes of this
Section 5.2 (Number), "whole" shall mean the total number of authorized
directors, whether or not there exist any vacancies on the Board of Directors or
unfilled previously authorized directorships, at the time such resolution is
presented to the Board of Directors for adoption.
5.3 Staggered Board and Election. Except as otherwise provided by or
fixed pursuant to the provisions of Section 4.3 (Description of Preferred Stock)
of this Certificate of Incorporation with respect to the right(s) of holders of
any Preferred Stock or series of Preferred Stock to elect any additional
director(s), the directors shall be divided into three (3) classes, designated
as Class I, Class II, and Class III (which at all times shall be as nearly equal
in number as possible), with the term of office of Class I directors to expire
at the 2003 Annual Meeting of Stockholders, the term of office of Class II
directors to expire at the 2004 Annual Meeting of Stockholders, and the term of
office of Class III directors to expire at the 2005 Annual Meeting of
Stockholders, upon election and qualification of their successors. At each
annual meeting of stockholders after such classification and election, directors
elected to succeed those directors whose terms shall have expired shall be
elected for a full term of office, as applicable, to expire at the third ensuing
annual meeting of stockholders after their election, upon election and
qualification of their successors. The directors of the Corporation, except for
any director(s) who may be elected as otherwise provided by or fixed pursuant to
the provisions of Section 4.3 (Description of Preferred Stock) of this
Certificate of Incorporation with respect to the right(s) of holders of any
Preferred Stock or series of Preferred Stock to elect any additional
director(s), shall be elected in accordance with this Section 5.3 (Staggered
Board and Election) by the stockholders of the Corporation entitled to vote
thereon at each annual meeting of stockholders.
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5.4 Removal. Subject to the right of the holders of any Preferred Stock
or series of Preferred Stock then outstanding, any director, or the entire Board
of Directors, may be removed from office at any time, but only for "cause" (as
defined below) and only by the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3) of the voting power of the Voting
Stock (as defined below), voting together as a single class. Except as may
otherwise be provided by law, "CAUSE" for removal shall exist only if any
director whose removal has been proposed:
(a) has been convicted of a felony by a court of competent
jurisdiction and such conviction is no longer subject to direct appeal,
(b) has been adjudged by a court of competent jurisdiction to be
liable for gross negligence or misconduct in the performance of the
duties of such director to the Corporation in connection with a matter
of substantial importance to the Corporation, and such adjudication has
become final and non-appealable, or
(c) has missed six (6) consecutive meetings of the Board of
Directors.
For purposes of this Certificate of Incorporation, the term "VOTING
STOCK" shall mean all issued and outstanding shares of stock of the Corporation
entitled to vote generally in the election of directors or that otherwise are
entitled to vote with such stock on the specific matter in question.
5.5 Vacancies. Subject to the rights of the holders of any Preferred
Stock or series of Preferred Stock then outstanding, any newly-created
directorship(s) resulting from any increase(s) in the authorized number of
directors or any vacancy on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office, or other reason,
shall only be filled by a majority vote of the directors then in office, even
though less than a quorum of the Board of Directors, or by a sole remaining
director, as applicable. Under no circumstances shall the stockholders of the
Corporation fill any such newly-created directorship(s) or vacancy on the Board
of Directors. Any director(s) chosen in accordance with this Section 5.5
(Vacancies) shall hold office (a) for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which they have been
elected expires, upon election and qualification of their successors, (b) until
the successor of such director shall have been otherwise elected and qualified,
(c) or until the earlier death, resignation, retirement, disqualification, or
removal from office of such director, as applicable. No decrease in the number
of authorized directors constituting the whole Board of Directors shall shorten
the term of any incumbent director(s).
5.6 Nominations, Ballots, and Cumulative Voting. Advance notice of
nominations for the election of directors of the Corporation shall be given in
accordance with the bylaws of the Corporation (the "BYLAWS"). Election of
directors need not be by written ballot unless the Bylaws shall so provide. No
holders of shares of stock of the Corporation shall have any right(s) to
cumulate votes in the election of directors of the Corporation.
5.7 Preferred Stock Directors. Notwithstanding the foregoing, whenever
the holders of any Preferred Stock or series of Preferred Stock shall be
entitled to elect any additional director(s) at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies, and other
terms and features of such directorship(s) shall be governed by the terms and
features of the resolution(s) adopted pursuant to Article IV (Authorization and
Description of Stock) of this Certificate of Incorporation and applicable
thereto, and the director(s) so elected shall not be divided into classes
pursuant to this Article V (Board of Directors) unless expressly provided by
such terms and features.
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5.8 Limitation of Liability. No director of the Corporation shall be
personally liable to the Corporation or the stockholders of the Corporation for
monetary damages for breach of fiduciary duty as a director, except for the
liability of a director (i) for any breach of the director's duty of loyalty to
the Corporation or the stockholders of the Corporation, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, (iv) for any transaction
from which the director derived an improper personal benefit, or (v) for any act
or omission occurring prior to the date when this Section 5.8 (Limitation of
Liability) becomes effective. If the DGCL is hereafter amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the Corporation, in addition to the limitation of
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended DGCL. Any repeal or modification of this Section 5.7
(Limitation of Liability) by the stockholders of the Corporation shall be
prospective only and shall not adversely affect any limitation of the personal
liability of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE VI
AMENDMENT OF CERTIFICATE OF INCORPORATION
In addition to any provisions of applicable law, any other provisions of
this Certificate of Incorporation, and any resolution(s) of the Board of
Directors adopted pursuant to Article IV (Authorization and Description of
Stock) of this Certificate of Incorporation (and notwithstanding the fact that a
lesser vote or no vote may be permitted by applicable law, any other provisions
of this Certificate of Incorporation, or any resolution(s) of the Board of
Directors adopted pursuant to Article IV (Authorization and Description of
Stock) of this Certificate of Incorporation), the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of the Voting Stock, voting together as a single class, shall be required
to adopt any term or provision of the certificate of incorporation of the
Corporation that would make the certificate of incorporation of the Corporation
inconsistent or conflict with, amend, alter, or repeal Section 4.3 (Description
of Preferred Stock), Article V (Board of Directors), this Article VI (Amendment
of Certificate of Incorporation), Article VII (Amendment of Bylaws), Article IX
(Meetings of Stockholders), or Article X (Indemnification) of this Certificate
of Incorporation.
Subject to the foregoing provisions of this Article VI (Amendment of
Certificate of Incorporation), the Corporation reserves the right to amend,
alter, change, or repeal any term or provision contained in this Certificate of
Incorporation, in any manner now or hereafter provided by applicable law, and
all rights conferred upon stockholders of the Corporation in this Certificate of
Incorporation are granted subject to this reservation.
ARTICLE VII
AMENDMENT OF BYLAWS
In furtherance, and not in limitation, of the powers conferred upon the
Corporation by applicable law, the Board of Directors is hereby expressly
authorized to adopt, amend, alter, or repeal the Bylaws or adopt new Bylaws,
without any action on the part of the stockholders of the Corporation, by the
vote of a majority of the whole Board of Directors.
In addition to any provisions of applicable law, any other provisions of
this Certificate of Incorporation, and any resolution(s) of the Board of
Directors adopted pursuant to Article IV (Authorization and Description of
Stock) of this Certificate of Incorporation (and notwithstanding the fact that a
lesser vote or no vote may be permitted by applicable law, any other provisions
of this Certificate of Incorporation, or any resolution(s) of the Board of
Directors adopted pursuant to Article IV (Authorization and Description of
Stock) of this Certificate of Incorporation), the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of the Voting Stock, voting together as a single class, shall be required
to adopt, amend, alter, or repeal any term or provision of the Bylaws that would
make the Bylaws inconsistent or conflict with Section 4.3
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(Description of Preferred Stock), Article V (Board of Directors), Article VI
(Amendment of Certificate of Incorporation), this Article VII (Amendment of
Bylaws), Article IX (Meetings of Stockholders), or Article X (Indemnification)
of this Certificate of Incorporation.
In the event that any term or provision of the Bylaws is inconsistent,
or conflicts, with the terms or provisions of this Certificate of Incorporation,
this Certificate of Incorporation shall control.
ARTICLE VIII
RIGHTS OF STOCKHOLDERS
No holder of shares of stock of the Corporation shall have any
preemptive or other similar right, except as expressly provided by contract or
by resolution(s) adopted by the Board of Directors which create a series of
Preferred Stock, to purchase or subscribe for or receive any shares of any
class, or series thereof, of stock of the Corporation, whether now or hereafter
authorized, or any warrants, options, bonds, debentures, or other securities
convertible into, exchangeable for, or carrying any right to purchase any shares
of any class, or series thereof, of stock of the Corporation; provided, however,
that any shares of any class, or series thereof, of stock of the Corporation and
any warrants, options, bonds, debentures, or other securities convertible into,
exchangeable for, or carrying any right to purchase any shares of any class, or
series thereof, of stock of the Corporation may be issued or disposed of by the
Board of Directors to any person or entity, and on such terms and for such
lawful consideration, as the Board of Directors, in its sole discretion, shall
deem advisable, or as to which the Corporation shall have by binding contract
agreed.
ARTICLE IX
MEETINGS OF STOCKHOLDERS
Subject to the rights of the holders of any Preferred Stock or series of
Preferred Stock then outstanding, any action required or permitted to be taken
by the stockholders of the Corporation must be effected at a duly called annual
or special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders. Except as otherwise required by
applicable law and subject to the rights of the holders of any Preferred Stock
or series of Preferred Stock then outstanding special meetings of stockholders
of the Corporation may be called only by the chairman of the Board of Directors,
if any, the President, if any, the Board of Directors pursuant to a resolution
adopted by a majority of the whole Board of Directors, or holders of at least
twenty-five percent (25%) of the voting power of the Voting Stock, voting
together as a single class.
ARTICLE X
INDEMNIFICATION
10.1 Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(each, a "PROCEEDING"), by reason of the fact that he or she is or was a
director or an officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, or trustee of another corporation or of
a partnership, joint venture, trust, or other enterprise, including, without
limitation, service with respect to an employee benefit plan (an "INDEMNITEE"),
whether the basis of such Proceeding is alleged action in an official capacity
as a director, officer, or trustee or in any other capacity while serving as a
director, officer, or trustee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), against all expense, liability, and loss (including, without
limitation, attorneys' fees, judgments, fines, Employee Retirement Income
Security Act of 1974, as
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amended, excise taxes, or penalties and amounts paid in settlement) reasonably
incurred or suffered by such Indemnitee in connection therewith; provided,
however, that, except as provided in Section 10.3 (Right of Indemnitee to Bring
Suit) with respect to Proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such Indemnitee in connection with a Proceeding
(or part thereof) initiated by such Indemnitee only if such Proceeding (or part
thereof) was authorized by the Board of Directors.
10.2 Right to Advancement of Expenses. In addition to the right to
indemnification conferred in Section 10.1 (Right to Indemnification), an
Indemnitee shall also have the right to be paid by the Corporation the expenses
(including, without limitation, attorney's fees) incurred in defending any such
Proceeding in advance of its final disposition (an "ADVANCEMENT OF EXPENSES");
provided, however, that, if required by the DGCL, an Advancement of Expenses
incurred by an Indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking (an
"UNDERTAKING"), by or on behalf of such Indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (a "FINAL ADJUDICATION") that such
Indemnitee is not entitled to be indemnified for such expenses under this
Section 10.2 (Right to Advancement of Expenses) or otherwise.
10.3 Right of Indemnitee to Bring Suit. If a claim under Section 10.1
(Right to Indemnification) or 10.2 (Right to Advancement of Expenses) is not
paid in full by the Corporation within sixty (60) days after a written claim has
been received by the Corporation, except in the case of a claim for an
Advancement of Expenses, in which case the applicable period shall be twenty
(20) days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that, and
(ii) in any suit brought by the Corporation to recover an Advancement of
Expenses pursuant to the terms of an Undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the Indemnitee
has not met any applicable standard for indemnification set forth in the DGCL.
Neither the failure of the Corporation (including its directors who are not
parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met the applicable standard of
conduct set forth in the DGCL nor an actual determination by the Corporation
(including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) that the Indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit
brought by the Indemnitee to enforce a right to indemnification or to an
Advancement of Expenses hereunder, or brought by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or to such
Advancement of Expenses, under this Article X (Indemnification) or otherwise
shall be on the Corporation.
10.4 Non-Exclusivity of Rights. The rights to indemnification and to the
Advancement of Expenses conferred in this Article X (Indemnification) shall not
be exclusive of any other right which any person may have or hereafter acquire
under any statute, the certificate of incorporation or bylaws of the
Corporation, agreement, vote of stockholders or directors, or otherwise.
10.5 Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any
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director, officer, employee, or agent of the Corporation or another corporation,
partnership, joint venture, trust, or other enterprise against any expense,
liability, or loss, whether or not the Corporation would have the power to
indemnify such person or entity, as applicable, against such expense, liability,
or loss under the DGCL.
10.6 Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the Advancement of Expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article X (Indemnification) with respect to the indemnification and
Advancement of Expenses of directors and officers of the Corporation.
10.7 Nature of Rights. The rights conferred upon any Indemnitee in this
Article X (Indemnification) shall be contract rights and such rights shall
continue as to an Indemnitee who has ceased to be a director, officer, or
trustee and shall inure to the benefit of the Indemnitee's heirs, executors, and
administrators. Any amendment, alteration, or repeal of this Article X
(Indemnification) that adversely affects any right(s) of an Indemnitee or his,
her, or its successor(s) shall be prospective only and shall not limit or
eliminate any such right with respect to any Proceeding involving any occurrence
or alleged occurrence of any action or omission to act that took place prior to
such amendment, alteration, or repeal.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE TO FOLLOW.
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IN WITNESS WHEREOF, Alternate Marketing Networks, Inc. has caused this
Amended and Restated Certificate of Incorporation to be signed by Phillip D.
Miller, its Chairman of the Board of Directors, as of July 26, 2002.
ALTERNATE MARKETING NETWORKS, INC.,
a Delaware corporation
By: /s/ PHILLIP D. MILLER
-------------------------------------
Name: Phillip D. Miller
Title: Chairman of the Board of
Directors
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