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(On August 6, 1998, a certificate of correction was filed with
the secretary of state of the State of Delaware with respect to
MB Parent’s restated certificate of incorporation. The minor
corrections that were made to MB Parent’s restated certificate of
incorporation as a result of this filing are reflected in the
preceding excerpt.)
Also on July 29, 1998, a restated certificate of
incorporation for MergerSub was filed with the Department of
State of the State of New York. The restated certificate of
incorporation for MergerSub established five directors, of whom
three would constitute a quorum, and included the following
provisions:
ARTICLE V
AUTHORIZED CAPITAL STOCK
Section 1. Authorized Shares.
The total number of shares of all classes of
capital stock which the corporation shall have
authority to issue is Twenty-Three Thousand Nine
Hundred Seventy (23,970) shares, of which (i) Twenty
Thousand (20,000) shares, having a par value of
$.01 per share, shall be Common Stock (“Common Stock”)
having the rights, preferences and privileges set forth
in Section 2 of this Article V, (ii) Ten (10) shares,
having a par value of $.01 per share, shall be
Nonvoting Participating Preferred Stock (“Participating
Preferred Stock”) having the rights, preferences and
privileges set forth in Section 3 of this Article V and
(iii) Three Thousand Nine Hundred Sixty (3,960) shares,
having a par value of $.01 per share, shall be Voting
Preferred Stock (“Voting Preferred Stock” and, together
with the Participating Preferred Stock, “Preferred
Stock”) having the rights, preferences and privileges
set forth in Section 4 of this Article V.
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