Certificate of Incorporation

CERTIFICATE OF INCORPORATION


OF


FANNY MAY HOLDINGS, INC.


The undersigned, for the purpose of organizing a corporation pursuant to the provisions of the General Corporation Law of the State of Delaware, does make and file this Certificate of Incorporation and does hereby certify as follows:


FIRST: NAME. The name of the corporation is FANNY MAY HOLDINGS, INC. (hereinafter referred to as the "Corporation").


SECOND: REGISTERED OFFICE. The registered office of the Corporation is to be located in the City of Wilmington, County of New Castle, in the State of Delaware. The name of its registered agent is the Corporation Service Company, whose address is 1013 Centre Road, Wilmington, Delaware 19805.


THIRD: PURPOSES. The purpose of the Corporation 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: CAPITAL STOCK. The total number of shares of stock which the Corporation shall have authority to issue is thirty-five hundred (3,500) shares, of which one thousand (1,000) shares shall be Common Stock of the par value of one cent ($.01) per share (hereinafter called "Common Stock") and twenty-five hundred (2,500) shares shall be Preferred Stock without par value (hereinafter called "Preferred Stock").


A. PROVISIONS RELATING TO PREFERRED STOCK. Shares of Preferred Stock may be issued from time to time in series, and the Board of Directors of the Corporation is hereby authorized, subject to the limitations provided by law, to establish and designate one or more series of the Preferred Stock, to fix the number of shares constituting each series, and to fix the designations, powers, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, of each series and the variations and the relative rights, preferences and limitations as between series, and to increase and to decrease the


number of shares constituting each series. The authority of the Board of Directors of the Corporation with respect to each series shall include, but shall not be limited to, the authority to determine the following:


(i) The designation of such series.


(ii) The number of shares initially constituting such series.


(iii) The increase, and the decrease to a number not less than the number of the outstanding shares of such series, of the number of shares constituting such series theretofore fixed.


(iv) The rate or rates, and the conditions upon and the times at which dividends on the shares of such series shall be paid, the preference or relation which such dividends shall bear to the dividends payable on any other class or classes or on any other series of stock of the Corporation, 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.


(v) Whether or not the shares of such series 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.


(vi) The rights to which the holders of the shares of such series shall be entitled upon the voluntary or involuntary liquidation, dissolution or winding up of, or upon any distribution of the assets of, the Corporation, which rights may be different in the case of a voluntary liquidation, dissolution or winding up than in the case of such an involuntary event.


(vii) Whether or not the shares of such series 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 series of Preferred Stock and the right to have more than one vote per share.


(viii) Whether or not a sinking fund or a purchase fund shall be provided for the redemption or purchase of the shares of such series, and, if such a sinking fund or purchase fund shall be provided, the terms and conditions thereof.


(ix) Whether or not the shares of such series shall be convertible into, or exchangeable for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation, and, if provision be made for conversion or exchange, the terms and conditions of conversion or exchange, including, but not limited to, any provision for the adjustment of the conversion or exchange rate or the conversion or exchange price.


(x) Any other relative rights, preferences and limitations.


B. PROVISIONS RELATING TO COMMON STORK.


(i) Subject to the preferential dividend rights applicable to shares of the Preferred Stock, as determined by the Board of Directors of the Corporation pursuant to the provisions of part A of this Article FOURTH, the holders of shares of the Common Stock shall be entitled to receive such dividends as may be declared by the Board of Directors of the Corporation.


(ii) Subject to the preferential liquidation rights and except as determined by the Board of Directors of the Corporation pursuant to the provisions of part A of this Article FOURTH, in the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, the holders of shares of the Common Stock shall be entitled to receive all of the assets of the Corporation available for distribution to its stockholders ratably in proportion to the number of shares of the Common Stock held by them,


(iii) Except as otherwise determined by the Board of Directors of the Corporation pursuant to the provisions of part A of this Article FOURTH, the holders of


shares of the Common Stock shall be entitled to vote on all matters at all meetings of the stockholders of the Corporation, and shall be entitled to one vote for each share of the Common Stock entitled to vote at such meeting, voting together with the holders of the Preferred Stock who are entitled to vote, and not as a separate class.


FIFTH: INCORPORATOR. The name and mailing address of the incorporator is:


Name Mailing Address
---- ---------------


Herbert B. Max c/o Spengler Carlson Gubar
Brodsky & Frischling
520 Madison Avenue
New York, NY 10022


SIXTH: COMPROMISE. 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 the provisions of 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 the provisions of 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.


SEVENTH: BOARD OF DIRECTORS AND BY-LAWS. All corporate powers shall be exercised by the Board of Directors, except as otherwise provided by statute or by this Certificate of Incorporation, or any amendment thereof, or by the By-Laws. Directors need not be elected


by written ballot. The By-Laws may be adopted, amended or repealed by the Board of Directors of the Corporation, except as otherwise provided by law, but any by-law made by the Board of Directors is subject to amendment or repeal by the stockholders of the Corporation.


EIGHTH: LIMITED LIABILITY. A director of the Corporation shall not be personally liable to the Corporation or 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 Delaware General Corporation Law, or (iv) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is hereafter amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.


Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.


NINTH: INDEMNIFICATION. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or complete action, suit or proceeding, whether civil, criminal, administrative or investigative, or by or in the right of the Corporation to procure judgment in its favor, by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, in accordance with and to the full extent permitted by statute. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an


undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this section. The indemnification provided by this section shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under these Articles or any agreement or vote of stockholders or disinterested directors or otherwise, both as to action in his 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.


IN WITNESS WHEREOF, I, the undersigned, being the incorporator hereinbefore named, hereby declare and certify that the facts herein stated are true, and accordingly have hereunto set my hand this 13th day of August, 1991.


/s/ Herbert B. Max
----------------------------------------
Herbert B. Max, Incorporator


6743c


CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FANNY MAY HOLDINGS, INC.


(PURSUANT TO SECTION 241 OF THE
GENERAL CORPORATION LAW OF DELAWARE)


* * * *


FANNY MAY HOLDINGS, INC., a corporation organized and existing under any by virtue of the General Corporation Law of the State of Delaware (the "Corporation"), DOES HEREBY CERTIFY:


FIRST: That the Corporation has not received any payment for any of its stock and that the Sole Incorporator of the Corporation, pursuant to Section 241(b) of the General Corporation Law of the state of Delaware, duly adopted resolutions setting forth the following amendments to the Certificate of Incorporation of the Corporation.


RESOLVED: that the Certificate of Incorporation of the
Corporation be, and it hereby is, amended by deleting in its entirety
the present Article First and substituting in lieu thereof the
following new Article First:


"FIRST: NAME. The name of the Corporation is FANNIE MAY
HOLDINGS, INC. (hereinafter referred to as the "Corporation")."


SECOND: That said amendment was duly adopted in accordance
with the provisions of Section 241 of the General Corporation Law
of the State of Delaware.


IN WITNESS WHEREFOF, said FANNY MAY HOLDINGS, INC. has caused this certificate to be signed by Herbert B. Max, its Sole Incorporator, this 22nd day of August, 1991.


FANNY MAY HOLDINGS, INC.


By: /s/ Herbert B. Max
----------------------------------------
Herbert B. Max
Sole Incorporator


6843c


CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FANNIE MAY HOLDINGS, INC.


FANNIE MAY HOLDINGS, INC., a Delaware Corporation (the "Corporation"), does hereby certify as follows;


FIRST: The name of the Corporation is Fannie Fay Holdings, Inc.


SECOND: The Certificate of Incorporation of the Corporation is hereby amended by deleting ARTICLE FOURTH thereof and substituting in lieu thereof the following:


FOURTH: CAPITAL STOCK. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is 8,000 shares
of capital stock, consisting of (a) 2,500 shares of Preferred Stock,
without par value ("Preferred Stock"), (b) 2,000 shares of Class A Common
Stock, $.01 par value per share ("Class A Common Stock"), (c) 2,000 shares
of Class B Common stock, $.01 par value per share ("Class B Common Stock"),
(d) 1,000 shares of Class C Common Stock, $.01 par value per share (Class C
Common Stock") and (e) 1,000 shares of Class D Common Stock $.01 par value
per share ("Class D Common Stock") (the Class A Common Stock, Class B
Common Stock, Class C Common Stock and Class D Common Stock are referred to
herein collectively as the "Common Stock").


I. PROVISIONS RELATING TO PREFERRED STOCK.


Shares of Preferred Stock may be issued from time to time in series,
and the Board of Directors of the Corporation is hereby authorized, subject
to the limitations provided by law, to establish and designate one or more
series of the Preferred Stock, to fix the number of shares constituting
each series, and to fix the designations, powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, of each series and the variations and
the relative rights, preferences and limitations as between series, and to
increase and to decrease the number of shares constituting each series. The
authority of the Board of Directors of the Corporation with respect to each
series shall include, but shall not be limited to, the authority to
determine the following:


(i) The designation of such series.


(ii) The number of shares initially constituting such series.


(iii) The increase, and the decrease to a number not less than
the number of the outstanding shares of such series, of the number of
shares constituting such series theretofore fixed.


(iv) The rate or rates, and the conditions upon and the times at
which dividends on the shares of such series shall be paid, the
preference or relation which such dividends shall bear to the
dividends payable on any other class or classes or on any other series
of stock of the Corporation, 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.


(v) Whether or not the shares of such series 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.


(vi) The rights to which the holders of the shares of such series
shall be entitled upon the voluntary or involuntary liquidation,
dissolution or winding up of, or upon any distribution of the assets
of, the Corporation, which rights may be different in the case of a
voluntary liquidation, dissolution or winding up than in the case of
such an involuntary event.


(vii) Whether or not the shares of such series 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 series of Preferred Stock and
the right to have more than one vote per share.


(viii) Whether or not a sinking fund or a purchase fund shall be
provided for the redemption or purchase of the shares of such series,
and, if such a sinking fund or purchase fund shall be provided, the
terms and conditions thereof.


(ix) Whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of any other class or
classes or any other series of the same or any other class or classes
of stock of the corporation, and, if provision be made for conversion
or exchange, the terms and conditions of conversion or exchange,
including, but not limited to, any provision for the adjustment of the
conversion or exchange rate or the conversion or exchange price.


(x) Any other relative rights, preferences and limitations.


II. PROVISIONS RELATING TO COMMON STOCK.


A. DIVIDENDS. All shares of Common Stock of the Corporation shall be
of equal rank and shall be identical, except as hereinafter specifically
set forth. No dividend


or other distribution shall be paid upon, or declared or set apart for any
share of any class of Common Stock of the Corporation for any dividend
period unless at the same time a dividend or distribution for the same
period shall be paid upon, or declared and set apart for, all shares of
each other class of Common Stock then issued and outstanding, in the same
amount with respect to each issued and outstanding share of Common Stock,
as though all shares of Common Stock were of a single class, except that
the Corporation may at any time concurrently declare and pay an equal
dividend, on a shares for share basis, in each respective class of Common
Stock in shares of such class of Common Stock.


B. DISTRIBUTION UPON LIQUIDATION. In the event of a voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation, the
holders of each class of Common Stock shall be entitled to share in the
distribution of any remaining assets available for distribution to the
holders of Common Stock ratably in proportion to the number of shares of
all classes of Common Stock then issued and outstanding as though all such
shares were of a single class.


C. CORPORATE EVENT. There shall be no increase, decrease or other
alteration of the issued and outstanding shares of any class of Common
Stock of the Corporation by or as a result of any stock split, stock
dividend, combination of shares, recapitalization, reclassification,
merger, consolidation, sale of all or substantially all assets of the
Corporation, reorganization, liquidation, dissolution or other similar
corporate transaction ("Corporate Event") unless at the same time the
shares of the other class or classes of Common Stock then issued and
outstanding are also increased, decreased or otherwise altered, as the case
may be, in the same manner and to the same extent. Without limiting the
generality of the foregoing, the number of shares of each class of Common
Stock issued and outstanding immediately following any such Corporate Event
shall bear the same ratio to the number of shares of that class of Common
Stock issued and outstanding immediately prior to such Corporate Event as
the number of shares of each other class of Common Stock issued and
outstanding immediately following such Corporate Event shall bear to the
number of shares of that class of Common Stock issued and outstanding
immediately prior to such Corporate Event.


D. VOTING RIGHTS.


1. The holders of Class A Common Stock shall be entitled to one vote
per share in voting or consenting on the election of directors and for all
other corporate purposes to the extent authorized by law.


2. The holders of Class B Common Stock shall not be entitled to vote
at any meeting of stockholders or to express consent or dissent to any
corporate action taken without a meeting (including, without limitation,
any election or removal of the directors of the Corporation) except to the
extent required by Delaware law and the Class B Common Stock shall not be
included in determining the number of shares voting or consenting or
entitled to vote or consent on such matters except to the extent required
by Delaware law.


Nothing in this Article Fourth shall be construed to impair or limit
the right of any member of the Purchaser Group (as hereinafter defined) to
give or withhold any required consent with respect to any corporation
action or matter pursuant to the terms of any stockholders agreement or
other agreement among the Corporation and all or any of the stockholders
thereof or among all or any of such stockholders.


3. The holders of shares of Class C Common Stock shall be entitled
to one vote per share in voting or consenting on the election of directors
and for all other purposes with respect to which the holders of shares of
Class A Common Stock are entitled to vote or consent. In addition, the
holders of shares of Class C Common Stock shall be entitled to vote for and
elect, as a class, one Class C director, who shall have 51% of the total
voting power of the Board of Directors of the Corporation, provided that
during any period in which either (a) as provided in Section 1.6 of the
Certificate of Designations of the Senior Preferred Stock, a director
elected by the holders of Senior Preferred Stock and having 51% of the
total voting power of the Board of Directors shall have been elected and
the right of the holders of Senior Preferred Stock to elect such director
shall be continuing or (b) as provided in Paragraph 4 of this Subdivision
D, a Triggering Event has occurred and is continuing resulting in the
director elected by the holders of Class D Common Stock having 51% of the
total voting power of the Board of Directors, the vote of the director
elected by the Class C Common Stock shall not constitute the vote of 51% of
the directors but such Class C director shall have one vote on all matters
to come before the Board of Directors of the Corporation. At any time that
the conditions described in clauses (a) and (b) of this Paragraph 3 shall
no longer exist, the director elected by the holders of Class C Common
Stock shall again have 51% of the voting power of the Board of Directors of
the Corporation. The right of the holders of Class C Common Stock to elect
or remove a member of the Board of Directors as provided in this Paragraph
3 may be exercised by Class C Common Stock at a meeting of such holders
called by the holders of at least ten percent of the outstanding Class C
Common Stock upon the minimum notice required by law for special meetings
of stockholders or by written consent of the holders of Class C Common
Stock in the manner provided under the Delaware General Corporation Law.


4. The holders of shares of Class D Common Stock shall be entitled
to one vote per share in voting or consenting on the election of directors
and for all other purposes with respect to which the holders of shares of
Class A Common Stock are entitled to vote or consent. In addition, upon the
occurrence and during the continuance of a Triggering Event, the number of
directors constituting the whole Board of Directors shall be increased by
one and the holders of Class D Common Stock shall be entitled to vote for
and elect as a class one director who shall have 51% of the voting power of
the Board of Directors of the Corporation, provided that (i) at such time
as no Triggering Event shall be continuing, or (ii) during any period in
which, as provided for i ...