(Pursuant to Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware)
Headstrong Corporation, a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: The original Certificate of Incorporation of Headstrong Corporation (formally known as JMW Sub, Inc.) was filed with the Secretary of State of the State of Delaware on May 7, 2000, and the Certificate of Merger, merging JMW Holding LLC, a Delaware limited liability company, with and into JMW Sub, Inc. under the name of Headstrong Corporation was filed with the Secretary of State of the State of Delaware on November 17, 2000.
SECOND: The First Amended and Restated Certificate of Incorporation of the Corporation in the form attached hereto as Annex A has been duly adopted in accordance with the provisions of the Sections 245, 242 and 228 of the General Corporation Law of the State of Delaware by the directors and stockholders of the Corporation.
THIRD: The First Amended and Restated Certificate of Incorporation of the Corporation so adopted reads in full as set forth on Annex A attached hereto and is hereby incorporated herein by this reference.
IN WITNESS WHEREOF, Headstrong Corporation has caused this Certificate to be signed by the Secretary this 18th day of November, 2002.
HEADSTRONG CORPORATION
By:_______________________
Nelson Blitz
Secretary
ANNEX A
FIRST: The name of the Corporation is
Headstrong Corporation
SECOND: The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, in the City of Wilmington, County of New Castle. The name of the Corporation's registered agent at such address is Corporation Service Company.
THIRD: The purpose for which the Corporation is formed is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock that the Corporation shall have authority to issue is 80,000,000 shares of common stock classified as follows: (i) 40,000,000 shares designated as Class A Common Stock, $.01 par value ("Class A Common Shares"), and (ii) 40,000,000 shares designated as Class B Common Stock, $.01 par value ("Class B Common Shares" and together with the Class A Common Shares, "Common Shares").
A. COMMON SHARES.
The express terms of the Common Shares of each class shall be as follows:
1. Identical Rights. Except as otherwise provided in this ARTICLE FOURTH, all Common Shares shall be identical and shall entitle the holder thereof to the same rights and privileges.
2. Dividends. From and after the date of issuance, the holders of outstanding Common Shares shall be entitled to receive dividends on the Common Shares when, as and if declared by the directors out of funds legally available for such purpose. All holders of Common Shares shall share ratably, in accordance with the number of shares held by each such holder, in all dividends or distributions payable in cash, in property or in securities (other than Common Shares) of the Corporation. All dividends or distributions declared on the Common Shares which are payable in Common Shares shall be declared at the same rate on both classes of Common Shares, but shall be payable only in Class A Common Shares to the holders of Class A Common Shares and in Class B Common Shares to the holders of Class B Common Shares.
3. Subdivisions and Combinations of Shares. The Corporation shall not in any manner subdivide (by stock split, stock dividend or otherwise) or combine (by stock split, stock dividend or otherwise) the outstanding Common Shares of either class unless the outstanding Common Shares of the other class are proportionately subdivided or combined.
4. Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of the Corporation, the holders of the Common Shares shall share ratably, in accordance with the number of shares held by each such holder, in all of the assets of the Corporation available for distribution to the holders of the Common Shares.5. Voting Rights. Except as otherwise required by law, the holder or holders of the Class A Common Shares and the Class B Common Shares shall vote together as one class on all matters on which the holders of Common Shares are entitled to vote. The holder or holders of each Class A Common Share shall be entitled to the number of votes for each Class A Common Share held of record equal to the greater of (A) one and (B) the quotient obtained by dividing (i) the product obtained by multiplying (1) 0.55 by (2) a fraction, the numerator of which is equal to the number of Class B Common Shares held of record and the denominator of which is equal to 0.45, by (ii) the number of Class A Common Shares held of record; provided however that the holder or holders of each Class A Common Share shall only be entitled to one vote for each Class Common Share held of record at any time which the sum of (a) the aggregate number of outstanding Class A Common Shares and (b) the aggregate number of Class A Common Shares issuable upon exercise or conversion of any other rights to acquire any Class A Common Shares on an as converted to Class A Common Share basis represents less than 30% of the sum of (x) the aggregate number of outstanding Common Shares and (y) the aggregate number of Common Shares issuable upon exercise or conversion of any other rights to acquire any Common Shares on an as converted to Common Share basis. The holder or holders of each Class B Common Share shall be entitled to one vote for each Class B Common Share held of record.
FIFTH: Except pursuant to the laws of descent and distribution, no holder of Common Shares issued pursuant to the exercise of a right to purchase Common Shares under the Headstrong Share Option and Incentive Plan, as amended (the "Plan"), shall sell or in any other way, directly or indirectly, transfer, assign, distribute, pledge, hypothecate, encumber, gift or otherwise alienate or dispose of (collectively, "Transfer") such Common Shares, or any right or interest therein, whether voluntarily or involuntarily, by operation of law, court order, foreclosure, marital property division or otherwise, except (a) in compliance with all applicable U.S. federal and state and foreign securities laws and (b) with the written consent of the Corporation. Notwithstanding the foregoing, any holder of Common Shares may Transfer such Common Shares by gift or domestic relations order to any "family member" (as defined in Rule 701(c)(3) of the Securities Act of 1933, as amended from time to time) without obtaining the written consent of the Corporation; provided, that (i) such Transfer shall be in compliance with all applicable U.S. federal and state and foreign securities laws; (ii) there shall be no consideration for any such Transfer; and (iii) the transferee shall agree not to Transfer such Common Shares except in accordance with this Article Fifth. Any attempted Transfer of Common Shares acquired pursuant to the exercise of a right to purchase Common Shares under the Plan that is not permitted in accordance with this Article Fifth shall be void and of no further force and effect and shall not be registered on the books of the Corporation. The provisions of this Article Fifth will be of no further force or effect upon the earlier of: (x) the first date on which shares of the Class B Common Shares are held of record by more than five hundred (500) persons and are registered pursuant to an effective registration statement filed with the United States Securities and Exchange Commission; (y) the consummation of a firm commitment underwritten public offering, pursuant to an effective registration statement under the United States Securities Act of 1933, as amended from time to time; or (z) a sale of the Corporation to, or merger of the Corporation with, a company subject to the reporting requirements of the United States Securities Exchange Act of 1934, as amended from time to time.
SIXTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized and empowered to make, alter or repeal the Bylaws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any Bylaw made by the Board of Directors.
SEVENTH: (1) The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities and other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
(2) No person shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that the foregoing shall not eliminate or limit the liability of a director (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 that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware is subsequently amended to further eliminate or limit the liability of a director, then a director of the Corporation, in addition to the circumstances in which a director is not personally liable as set forth in the preceding sentence, shall not be liable to the fullest extent permitted by the amended General Corporation Law of the State of Delaware. For purposes of this ARTICLE SEVENTH, "fiduciary duty as a director" shall include any fiduciary duty arising out of serving at the Corporation's request as a director of another corporation, partnership, joint venture or other enterprise, and "personal liability to the Corporation or its stockholder" shall include any liability to such other corporation, partnership, joint venture, trust or other enterprise, and any liability to the Corporation in its capacity as a security holder, joint venturer, partner, beneficiary, creditor or investor of or in any such other corporation, partnership, joint venture, trust or other enterprise.