EXHIBIT 4.1
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MILLENNIUM INDIA ACQUISITION COMPANY INC.
(Pursuant to Section 242 of the General Corporation Law of the
State of Delaware)
Millennium India Acquisition Company Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: The name of the corporation is Millennium India Acquisition Company
Inc. (the "Corporation").
SECOND: The Corporation's Amended and Restated Certificate of Incorporation
was originally filed in the office of the Secretary of State of Delaware on May
17, 2006, and was subsequently amended by a Certificate of Amendment filed in
the office of the Secretary of State of Delaware on June 28, 2006.
THIRD: The Corporation wishes to amend its Amended and Restated Certificate
of Incorporation so as to clarify the meaning of "acquisition" in Article Fifth
thereof.
FOURTH: To accomplish the amendment referred to in Paragraph THIRD above,
the second sentence of Article Fifth of the Amended and Restated Certificate of
Incorporation is deleted in its entirety and the following is substituted in
lieu thereof:
"A `Business Combination' shall mean the acquisition by the Corporation,
whether by merger, capital stock exchange, asset or stock acquisition or other
similar type of transaction, of an interest in an operating business (`Target
Business')."
FIFTH: This Certificate of Amendment and the foregoing amendment to the
Amended and Restated Certificate of Incorporation of the Corporation were duly
adopted in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to the Amended and Restated Certificate of Incorporation to be signed
by a duly authorized officer of the Corporation on this 17th day of January,
2008.
MILLENNIUM INDIA ACQUISITION COMPANY INC.
By: /s/ F. Jacob Cherian
-------------------------------------
F. Jacob Cherian
President and Chief Executive Officer
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CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MILLENNIUM INDIA ACQUISITION COMPANY INC.
Millennium India Acquisition Company Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of the Corporation
resolutions were duly adopted setting forth a proposed amendment to the Amended
and Restated Certificate of Incorporation of the Corporation, declaring said
amendment to be advisable. The resolution setting forth the amendment is as
follows:
RESOLVED, that Article Fourth of the Amended and Restated Certificate of
Incorporation be deleted in its entirety and the following be substituted in
lieu thereof:
"FOURTH: (a) The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 45,005,000 of which:
(i) 45,000,000 shares shall be Common Stock of the par value of $0.0001 per
share; and
(ii) 5,000 shares shall be Preferred Stock of the par value of $0.0001 per
share.
(b) Preferred Stock. Shares of Preferred Stock may be issued from time to
time in series or otherwise and the Board of Directors of the Corporation is
hereby authorized, subject to the limitations provided by law, to establish and
designate (a "Preferred Stock Designation") series, if any, of the Preferred
Stock, to fix the number of shares constituting any such series, and to fix the
voting powers, designations, and relative, participating, optional, conversion,
redemption and other rights of the shares of Preferred Stock or series thereof,
and the qualifications, limitations and restrictions thereof, and to increase
and to decrease the number of shares of Preferred Stock constituting any such
series. The authority of the Board of Directors of the Corporation with respect
to shares of Preferred Stock or any series thereof shall include but shall not
be limited to the authority to determine the following:
I. The designation of any series;
II. The number of shares initially constituting any such series;
III. The rate or rates and the times at which dividends on the shares of
Preferred Stock or any series thereof shall be paid, and whether or not such
dividends shall be cumulative, and, if such dividends shall be cumulative, the
date or dates from and after which they shall accumulate;
IV. Whether or not shares of the Preferred Stock or series thereof shall be
redeemable, and, if such shares shall be redeemable, the terms and conditions of
such redemption, including but not limited to the date or dates upon or after
which such shares shall be redeemable and the amount per share which shall be
payable upon such redemption, which amount may vary under different conditions
and at different redemption dates;
V. The amount payable on the shares of Preferred Stock or series thereof in
the event of the voluntary or involuntary liquidation, dissolution or winding up
of the Corporation; provided, however, that the holders of such shares shall be
entitled to be paid, or to have set apart for payment, not less than $0.0001 per
share before the holders of shares of the Common Stock or the holders of any
other class of stock ranking junior to the Preferred Stock as to rights on
liquidation shall be entitled to be paid any amount or to have any amount set
apart for payment; provided, further, that, if the amounts payable on
liquidation are not paid in full, the shares of all series of the Preferred
Stock shall share ratably in any distribution of assets other than by way of
dividends in accordance with the sums which would be payable in such
distribution if all sums payable were discharged in full;
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VI. Whether or not the shares of Preferred Stock or series thereof shall
have voting rights, in addition to the voting rights provided by law, and, if
such shares shall have such voting rights, the terms and conditions thereof,
including but not limited to the right of the holders of such shares to vote as
a separate class either alone or with the holders of shares of one or more other
class or series of Preferred Stock and the right to have more than one vote per
share;
VII. Whether or not a sinking fund shall be provided for the redemption of
the shares of Preferred Stock or series thereof, and, if such a sinking fund
shall be provided, the terms and conditions thereof;
VIII. Whether or not a purchase fund shall be provided for the shares of
Preferred Stock or series thereof, and, if such a purchase fund shall be
provided, the terms and conditions thereof;
IX. Whether or not the shares of Preferred Stock or series thereof shall
have conversion privileges, and, if such shares shall have conversion
privileges, the terms and conditions of conversion, including but not limited to
any provision for the adjustment of the conversion rate or the conversion price;
and
X. Any other relative rights, preferences, qualifications, limitations and
restrictions.
(c) Common Stock.
1. Dividends. Subject to the preferential dividend rights, if any,
applicable to shares of Preferred Stock, the holders of shares of Common Stock
shall be entitled to receive only such dividends as may be declared by the Board
of Directors.
2. Liquidation. Except as set forth in Paragraph FIFTH, in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, after distribution in full of the preferential amounts to be
distributed to the holders of shares of Preferred Stock, the holders of shares
of Common Stock shall be entitled, ratably, in proportion to the number of
shares held by them, to receive all of the remaining assets of the Corporation
available for distribution to holders of Common Stock.
3. Voting Rights. Except as otherwise required by law or as otherwise
provided in any Preferred Stock Designation, the holders of Common Stock shall
exclusively possess all voting power and each share of Common Stock shall have
one vote.
4. Conversion. The holders of Common Stock shall have no conversion rights
other than as set forth in subparagraph B of Paragraph FIFTH hereof.
At 5:00 p.m., EST, on the date of the filing of this Certificate of
Amendment to the Amended and Restated Certificate of Incorporation, all
outstanding shares of Common Stock held by each holder of record on such date
shall be automatically combined at the rate of 0.708333 for one without any
further action on the part of the holders thereof or the Corporation. No
fractional shares will be issued. All fractional shares for one-half share or
more shall be increased to the next higher whole number of shares and all
fractional shares of less than one-half share shall be decreased to the next
lower whole number of shares, respectively."
SECOND: That the aforesaid amendment was duly adopted in accordance with
Sections 228 and 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by F. Jacob Cherian, its President, this 19th day of June 2006.
MILLENNIUM INDIA ACQUISITION COMPANY INC.
By: /s/ F. Jacob Cherian
--------------------------------------
Name: F. Jacob Cherian
Title: President and Chief Executive Officer
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MILLENNIUM INDIA ACQUISITION COMPANY INC.
MILLENNIUM INDIA ACQUISITION COMPANY INC., a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is "Millennium India Acquisition Company
Inc." (hereinafter sometimes referred to as the "Corporation").
2. The Corporation's Certificate of Incorporation was filed in the office
of the Secretary of State of Delaware on March 15, 2006.
3. This Amended and Restated Certificate of Incorporation restates,
integrates and amends the Certificate of Incorporation of the Corporation.
4. The text of the Certificate of Incorporation of the Corporation, as
heretofore amended, is hereby amended and restated to read in full as follows:
FIRST: The name of the corporation is Millennium India Acquisition Company Inc.
(hereinafter sometimes referred to as the "Corporation").
SECOND: The registered office of the Corporation is to be located at 874
Walker Road-Suite C, Dover, Delaware 19904; County of Kent. The name of its
registered agent at that address is United Corporate Services, Inc.
THIRD: The purpose of the Corporation shall be to engage in any lawful act
or activity for which corporations may be organized under the GCL.
FOURTH: (a) The total number of shares of all classes of capital stock
which the Corporation shall have authority to issue is 45,005,000 of which:
(i) 45,000,000 shares shall be Common Stock of the par value of
$0.0001 per share; and
(ii) 5,000 shares shall be Preferred Stock of the par value of
$0.0001 per share.
(b) Preferred Stock. Shares of Preferred Stock may be issued from time
to time in series or otherwise and the Board of Directors of the Corporation is
hereby authorized, subject to the limitations provided by law, to establish and
designate (a "Preferred Stock Designation") series, if any, of the Preferred
Stock, to fix the number of shares constituting any such series, and to fix the
voting powers, designations, and relative, participating, optional, conversion,
redemption and other rights of the shares of Preferred Stock or series thereof,
and the qualifications, limitations and restrictions thereof, and to increase
and to decrease the number of shares of Preferred Stock constituting any such
series. The authority of the Board of Directors of the Corporation with respect
to shares of Preferred Stock or any series thereof shall include but shall not
be limited to the authority to determine the following:
I. The designation of any series;
II. The number of shares initially constituting any such series;
III. The rate or rates and the times at which dividends on the shares of
Preferred Stock or any series thereof shall be paid, and whether or not such
dividends shall be cumulative, and, if such dividends shall be cumulative, the
date or dates from and after which they shall accumulate;
IV. Whether or not shares of the Preferred Stock or series thereof shall be
redeemable, and, if such shares shall be redeemable, the terms and conditions of
such redemption, including but not limited to the date or dates upon or after
which such shares shall be redeemable and the amount per share which shall be
payable upon such redemption, which amount may vary under different conditions
and at different redemption dates;
V. The amount payable on the shares of Preferred Stock or series thereof in
the event of the voluntary or involuntary liquidation, dissolution or winding up
of the Corporation; provided, however, that the holders of such
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shares shall be entitled to be paid, or to have set apart for payment, not less
than $0.0001 per share before the holders of shares of the Common Stock or the
holders of any other class of stock ranking junior to the Preferred Stock as to
rights on liquidation shall be entitled to be paid any amount or to have any
amount set apart for payment; provided, further, that, if the amounts payable on
liquidation are not paid in full, the shares of all series of the Preferred
Stock shall share ratably in any distribution of assets other than by way of
dividends in accordance with the sums which would be payable in such
distribution if all sums payable were discharged in full;
VI. Whether or not the shares of Preferred Stock or series thereof shall
have voting rights, in addition to the voting rights provided by law, and, if
such shares shall have such voting rights, the terms and conditions thereof,
including but not limited to the right of the holders of such shares to vote as
a separate class either alone or with the holders of shares of one or more other
class or series of Preferred Stock and the right to have more than one vote per
share;
VII. Whether or not a sinking fund shall be provided for the redemption of
the shares of Preferred Stock or series thereof, and, if such a sinking fund
shall be provided, the terms and conditions thereof;
VIII. Whether or not a purchase fund shall be provided for the shares of
Preferred Stock or series thereof, and, if such a purchase fund shall be
provided, the terms and conditions thereof;
IX. Whether or not the shares of Preferred Stock or series thereof shall
have conversion privileges, and, if such shares shall have conversion
privileges, the terms and conditions of conversion, including but not limited to
any provision for the adjustment of the conversion rate or the conversion price;
and
X. Any other relative rights, preferences, qualifications, limitations and
restrictions.
(c) Common Stock.
1. Dividends. Subject to the preferential dividend rights, if
any, applicable to shares of Preferred Stock, the holders of shares of Common
Stock shall be entitled to receive only such dividends as may be declared by the
Board of Directors.
2. Liquidation. Except as set forth in Paragraph FIFTH, in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, after distribution in full of the preferential amounts to be
distributed to the holders of shares of Preferred Stock, the holders of shares
of Common Stock shall be entitled, ratably, in proportion to the number of
shares held by them, to receive all of the remaining assets of the Corporation
available for distribution to holders of Common Stock.
3. Voting Rights. Except as otherwise required by law or as
otherwise provided in any Preferred Stock Designation, the holders of Common
Stock shall exclusively possess all voting power and each share of Common Stock
shall have one vote.
4. Conversion. The holders of Common Stock shall have no
conversion rights other than as set forth in subparagraph B of Paragraph FIFTH
hereof.
FIFTH: The following provisions (A) through (D) shall apply during the
period commencing upon the filing of this Certificate of Incorporation and
terminating upon the consummation of any "Business Combination," and may not be
amended during the "Target Business Acquisition Period." A "Business
Combination" shall mean the acquisition by the Corporation, whether by merger,
capital stock exchange, asset or stock acquisition or other similar type of
transaction, of an operating business ("Target Business"). The "Target Business
Acquisition Period" shall mean the period from the effectiveness of the
registration statement filed in connection with the Corporation's initial public
offering ("IPO") with the United States Securities and Exchange Commission up to
and including the first to occur of (a) a Business Combination or (b) the
Termination Date (defined below).
A. Prior to the consummation of any Business Combination, the
Corporation shall submit such Business Combination to its stockholders for
approval regardless of whether the Business Combination is of a type which
normally would require such stockholder approval under the GCL. In the event
that the holders of a majority of the IPO Shares (defined below) cast their
respective votes at the meeting to approve the Business Combination, the
Corporation shall be authorized to consummate the Business Combination; provided
that the Corporation shall not consummate such Business Combination if 20% or
more in interest of the holders of IPO Shares exercise their conversion rights
described in paragraph B below.
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B. In the event that a Business Combination is approved in accordance
with the above paragraph (A) and is consummated by the Corporation, any
stockholder of the Corporation holding shares of Common Stock issued in the IPO
("IPO Shares") who voted against such Business Combination may,
contemporaneously with such vote, demand that the Corporation convert such
stockholder's IPO Shares into cash. If so demanded, the Corporation shall,
promptly after consummation of the Business Combination, convert such shares
into cash at a per share conversion price equal to the quotient determined by
dividing (i) the amount of the Trust Fund (as defined below), inclusive of any
interest thereon less any amount used to pay federal, state or local income tax
on such interest, calculated as of two business days prior to the consummation
of the Business Combination, by (ii) the total number of IPO Shares. "Trust
Fund" shall mean the trust account established by the Corporation at the
consummation of its IPO and into which a certain amount of the net proceeds of
the IPO is deposited.
C. In the event that the Corporation does not consummate a Business
Combination by the later of (i) 18 months after the consummation of the IPO or
(ii) 24 months after the consummation of the IPO in the event that either a
letter of intent, an agreement in principle or a definitive agreement to
complete a Business Combination was executed but was not consummated within such
18 month period (such later date being referred to as the "Termination Date"),
the officers of the Corporation shall take all such action necessary to dissolve
and liquidate the Corporation as soon as reasonably practicable. In the event
that the Corporation is so dissolved and liquidated, only the holders of IPO
Shares shall be entitled to receive liquidating distributions, and the
Corporation shall pay no liquidating distributions with respect to any other
shares of capital stock of the Corporation.
D. A holder of IPO Shares shall be entitled to receive distributions
from the Trust Fund only in the event of a liquidation of the Corporation or in
the event such holder demands conversion of its shares in accordance with
paragraph B, above. In no other circumstances shall a holder of IPO Shares have
any right or interest of any kind in or to the Trust Fund.
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Except as otherwise provided in this Certificate of Incorporation,
the number of directors constituting the Board of Directors shall be determined
by the Board of Directors, subject to the by-laws of the Corporation. Except as
otherwise provided in this Certificate of Incorporation, any vacancy in the
Board of Directors, whether arising from death, resignation, disqualification,
removal, an increase in the number of directors or any other reason, may be
filled by the vote of either a majority of the directors then in office, though
less than a quorum (as defined in the Corporation's by-laws), by the sole
remaining director or by the stockholders at the next annual meeting thereof or
at a special meeting called for such purpose. Stockholders may not apply to
request that the Court of Chancery of the State of Delaware summarily order an
election to be held to fill any vacancies in the Board of Directors whether or
not, at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
Board of Directors as constituted immediately prior to any such vacancy or
increase. Except as otherwise provided in this Certificate of Incorporation,
each director so elected shall hold office until the next meeting of the
stockholders in which the election of directors is in the regular order of
business and until his successor shall have been elected and qualified.
EIGHTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
A. Election of directors need not be by ballot unless the by-laws of
the Corporation so provide.
B. The Board of Directors shall have the power, without the assent or
vote of the stockholders, to make, alter, amend, change, add to or repeal the
by-laws of the Corporation as provided in the by-laws of the Corporation.
C. The directors in their discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the Corporation which is
represented in person or by proxy at such meeting and entitled to vote thereat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and binding upon the Corporation and upon all the
stockholders as though it had been approved or ratified by every stockholder of
the Corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interests, or for any other reason.
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D. In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the provisions of the laws of
Delaware, of this Certificate of Incorporation, and to any by-laws from time to
time made by the stockholders; provided, however, that no by-law so made shall
invalidate any prior act of the directors which would have been valid if such
by-law had not been made.
NINTH: A. The Corporation shall, to the full extent permitted by Section
145 of the GCL, from time to time, indemnify all persons whom it may indemnify
pursuant thereto.
B. A director of the Corporation shall not be personally liable to the
Corporation and to its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
C. Each person who was or is made a party or is threatened to be made
a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the GCL, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that except as provided in sub-paragraph (d) hereof, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the board of directors of the Corporation.
The right to indemnification conferred in this Paragraph NINTH shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the GCL requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Paragraph NINTH or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
D. If a claim under sub-paragraph (c) of this Paragraph NINTH is not
paid in full by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the GCL for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the GCL, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard or conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
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E. The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
Paragraph NINTH shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
F. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the GCL.
TENTH: The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph (7) of
subsection (b) of Section 102 of the GCL.
ELEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
5. This Amended and Restated Certificate of Incorporation was duly adopted
by the unanimous written consent of the directors and by the written consent of
the holders of at least a majority of the issued and outstanding shares of
capital stock of the Corporation in accordance with the applicable provisions of
Sections 242 and 228, respectively, of the GCL.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed by a duly authorized officer of the
Corporation on this 17th day of May, 2006.
By: /s/ F. Jacob Cherian
----------------------------------
F. Jacob Cherian
President and Chief Executive Officer
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