Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-1 Logmein, Inc. HTML 1.36M
21: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 4K
2: EX-3.1 EX-3.1 Fifth Amended and Restated Certificate of HTML 122K Incorporation
3: EX-3.3 EX-3.3 Bylaws of the Registrant HTML 67K
4: EX-10.1 EX-10.1 2004 Equity Incentive Plan HTML 75K
13: EX-10.10 EX-10.10 Indemnification Agreement, Dated December HTML 39K
5, 2005 (Steven Benson)
14: EX-10.11 EX-10.11 Indemnification Agreement, Dated October HTML 54K
15, 2004 (Michael Simon)
15: EX-10.13 EX-10.13 Second Amended and Restated Investor HTML 150K
Rights Agreement, Dated December 26,
2007
16: EX-10.14 EX-10.14 Lease, Dated July 14, 2004 (Acquiport HTML 219K
Unicorn)
17: EX-10.15 EX-10.15 Connectivity Service and Marketing HTML 158K
Agreement, Dated December 26, 2007
5: EX-10.2 EX-10.2 Form of Incentive Stock Option Agreement HTML 20K
(2004 Plan)
6: EX-10.3 EX-10.3 Form of Nonstatutory Stock Option HTML 20K
Agreement (2004 Plan)
7: EX-10.4 EX-10.4 2007 Stock Incentive Plan HTML 51K
8: EX-10.5 EX-10.5 Form of Incentive Stock Option Agreement HTML 33K
(2007 Plan)
9: EX-10.6 EX-10.6 Form of Nonstatutory Stock Option HTML 32K
Agreement (2007 Plan)
10: EX-10.7 EX-10.7 Form of Restricted Stock Agreement (2007 HTML 61K
Plan)
11: EX-10.8 EX-10.8 Letter Agreement, Dated April 18, 2005 HTML 42K
(Richard Redding)
12: EX-10.9 EX-10.9 Indemnification Agreement, Dated December HTML 40K
5, 2005 (David Barrett)
18: EX-21.1 EX-21.1 Subsidiaries of the Registrant HTML 10K
19: EX-23.1 EX-23.1 Consent of Independent Registered Public HTML 10K
Accounting Firm
20: EX-23.3 EX-23.3 Consent of Shields & Company, Inc. HTML 12K
‘EX-3.1’ — EX-3.1 Fifth Amended and Restated Certificate of Incorporation
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
LogMeIn, Inc. (formerly known as “3am Labs, Inc.”), a corporation organized and existing under
and by virtue of the provisions of the General Corporation Law of the State of Delaware (the
“General Corporation Law”),
DOES HEREBY CERTIFY:
1) That the name of this corporation is LogMeIn, Inc., and that this corporation was
originally domesticated pursuant to the General Corporation Law on August 3, 2004, and the original
Certificate of Incorporation (“Original Certificate of Incorporation”) was filed by the Corporation
with the Secretary of State of Delaware on August 3, 2004. The Original Certificate of
Incorporation was amended and restated in its entirety by the filing of that certain Amended and
Restated Certificate of Incorporation with the Secretary of State of the State of Delaware on
August 3, 2004, was further amended and restated in its entirety by the filing of that certain
Second Amended and Restated Certificate of Incorporation with the Secretary of State of the State
of Delaware on October 14, 2004, was further amended and restated in its entirety by the filing of
that certain Third Amended and Restated Certificate of Incorporation with the Secretary of State of
the State of Delaware on December 5, 2005, was further amended and restated in its entirety by the
filing of that certain Fourth Amended and Restated Certificate of Incorporation with the Secretary
of State of the State of Delaware on March 10, 2006 and was further amended by the filing of those
certain Certificates of Amendment of Fourth Amended and Restated Certificate of Incorporation with
the Secretary of State of the State of Delaware on each of February 8, 2007 and November 26, 2007
(“Certificate of Incorporation”).
2) That the Board of Directors duly adopted resolutions proposing to amend and restate the
Certificate of Incorporation of this corporation, declaring said amendment and restatement to be
advisable and in the best interests of this corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the stockholders therefor, which
resolution setting forth the proposed amendment and restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended and restated in
its entirety to read as follows:
FIRST: The name of this corporation is LogMeIn, Inc. (the “Corporation”)
SECOND: The address of the registered office of the Corporation in the State of Delaware is
2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is the Corporation Service Company.
THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any
lawful act or activity for which corporations may be organized under the General Corporation Law.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have
authority to issue is (i) Fifty Million Fifty-Six Thousand Eight Hundred Eighty (50,056,880) shares
of Common Stock, $0.01 par value per share (“Common Stock”), and (ii) Thirty Million Nine Hundred
One Thousand Three Hundred Forty-Three (30,901,343) shares of Preferred Stock, $0.01 par value per
share (“Preferred Stock”).
The following is a statement of the designations and the powers, privileges and rights, and
the qualifications, limitations or restrictions thereof in respect of each class of capital stock
of the Corporation. Unless otherwise indicated, references to “Sections” or “Subsections” in this
Article refer to sections and subsections of this Article Fourth.
A. COMMON STOCK
1. General The voting, dividend and liquidation rights of the holders of the Common
Stock are subject to and qualified by the rights, powers and preferences of the holders of the
Preferred Stock set forth herein.
2. Voting The holders of the Common Stock are entitled to one vote for each share of
Common Stock held at all meetings of stockholders (and written actions in lieu of meetings). There
shall be no cumulative voting. The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of
the holders of shares of stock of the Corporation representing a majority of the votes represented
by all outstanding shares of stock of the Corporation entitled to vote, irrespective of the
provisions of Section 242(b)(2) of the General Corporation Law.
B. PREFERRED STOCK
Seventeen Million Ten Thousand Four Hundred Thirteen (17,010,413) shares of the authorized
Preferred Stock of the Corporation are hereby designated “Series A Preferred Stock”, Eleven Million
Six Hundred Sixty-Eight Thousand Seven Hundred Seven (11,668,707) shares of the authorized and
unissued Preferred Stock of the Corporation are hereby designated “Series B Preferred Stock”, and
Two Million Two Hundred Twenty-Two Thousand Two Hundred and Twenty-Three (2,222,223) shares of the
authorized and unissued Preferred Stock of the Corporation are hereby designated “Series B-1
Preferred Stock”, each with the respective rights, preferences, powers, privileges and
restrictions, qualifications and limitations set forth herein.
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1. Dividends.
From and after the date of the issuance of any shares of Series A Preferred Stock, dividends
at the rate per annum of $0.0464 per share shall accrue, without compounding, on such shares of
Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend,
stock split, combination or other similar recapitalization affecting such shares) (the “Series A
Accruing Dividends”). From and after the date of the issuance of any shares of Series B Preferred
Stock, dividends at the rate per annum of $.0652 per share shall accrue, without compounding, on
such shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any
stock dividend, stock split, combination or other similar recapitalization affecting such shares)
(the “Series B Accruing Dividends”). From and after the date of the issuance of any shares of
Series B-1 Preferred Stock, dividends at the rate per annum of $0.36 per share shall accrue,
without compounding, on such shares of Series B-1 Preferred Stock (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares) (the “Series B-1 Accruing Dividends” and collectively with
the Series A Accruing Dividends and Series B Accruing Dividends, the “Accruing Dividends”).
Accruing Dividends shall accrue from day to day, whether or not earned or declared, and shall be
cumulative; providedhowever, that except as set forth in the following sentence of
this paragraph (a) or in Subsection 6, the Corporation shall be under no obligation to pay
such Accruing Dividends. The Corporation shall not declare, pay or set aside any dividends on any
other shares of capital stock of the Corporation (other than dividends on shares of Common Stock
payable in shares of Common Stock) unless (x) the holders of the Series A Preferred Stock then
outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of
Series A Preferred Stock in an amount at least equal to (i) the amount of the aggregate Series A
Accruing Dividends then accrued on such share of Series A Preferred Stock and not previously paid
plus (ii) (A) in the case of a dividend on Common Stock, or any class or series that is convertible
into Common Stock, that dividend per share of Series A Preferred Stock as would equal the product
of (1) the dividend payable on each share of such class or series of stock determined, if
applicable, as if all such shares or series of such class had been converted to Common Stock, and
(2) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred
Stock, in each case calculated on the record date for determination of holders entitled to receive
such dividend or (B) in the case of a dividend on any class or series that is not convertible into
Common Stock, at a rate per share of Series A Preferred Stock determined by dividing the amount of
the dividend payable on each share of such class or series of capital stock by the original
issuance price of such class or series of capital stock (subject to adjustment in the event of any
stock dividend, stock split, combination or other similar recapitalization affecting such class or
series) and multiplying such fraction by an amount equal to $0.5795 per share (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) (such amount, as so adjusted from time to time,
being hereinafter referred to as the “Series A Original Issue Price”), and (y) the holders of the
Series B Preferred Stock and Series B-1 Preferred Stock then outstanding shall first receive, on a
pari passu basis, or simultaneously receive, a dividend on each outstanding share of Series B
Preferred Stock or Series B-1 Preferred Stock in an amount at least equal to (i) the amount of the
aggregate Series B Accruing Dividends then accrued on such share of Series B Preferred Stock or
Series B-1 Preferred Stock and not previously paid plus (ii) (A) in the case of a dividend on
Common Stock, or any class or series that is convertible into Common Stock, that dividend per share
of Series B Preferred Stock or
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Series B-1 Preferred Stock as would equal the product of (1) the dividend payable on each share of
such class or series of stock determined, if applicable, as if all such shares or series of such
class had been converted to Common Stock, and (2) the number of shares of Common Stock issuable
upon conversion of a share of Series B Preferred Stock or Series B-1 Preferred Stock, in each case
calculated on the record date for determination of holders entitled to receive such dividend or (B)
in the case of a dividend on any class or series that is not convertible into Common Stock, at a
rate per share of Series B Preferred Stock or Series B-1 Preferred Stock determined by dividing the
amount of the dividend payable on each share of such class or series of capital stock by the
original issuance price of such class or series of capital stock (subject to adjustment in the
event of any stock dividend, stock split, combination or other similar recapitalization affecting
such class or series) and multiplying such fraction by an amount equal to $0.815 per share in the
case of the Series B Preferred Stock (subject to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting such shares) (such
amount, as so adjusted from time to time, being hereinafter referred to as the “Series B Original
Issue Price”) or $4.50 per share in the case of the Series B-1 Preferred Stock (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares) (such amount, as so adjusted from time to time,
being hereinafter referred to as the “Series B-1 Original Issue Price”).
2. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset
Sales.
(a) Preferential Payments to Holders of Preferred Stock. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of
shares of Series A Preferred Stock, Series B Preferred Stock and Series B-1 Preferred Stock then
outstanding shall be entitled to be paid out of the assets available for distribution to its
stockholders, before any payment shall be made to the holders of Common Stock or any class or
series of stock ranking on liquidation junior to the Series A Preferred Stock, Series B Preferred
Stock or Series B-1 Preferred Stock, by reason of their ownership thereof, (i) in the case of the
Series A Preferred Stock, an amount equal to the Series A Original Issue Price, in the case of the
Series B Preferred Stock, an amount equal to the Series B Original Issue Price, and in the case of
the Series B-1 Preferred Stock, an amount equal to the Series B-1 Original Issue Price (in each
case, the applicable “Base Liquidation Amount”), plus (ii) any declared but unpaid dividends
thereon (the applicable sum of clause (i) and (ii) being referred to herein as the applicable
“Senior Liquidation Amount”). If upon any such liquidation, dissolution or winding up of the
Corporation, the assets available for distribution to its stockholders shall be insufficient to pay
the holders of shares of Preferred Stock the full aforesaid Senior Liquidation Amounts to which
they shall be entitled, the holders of shares of Series A Preferred Stock, the holders of shares of
Series B Preferred Stock and the holders of shares of Series B-1 Preferred Stock shall share
ratably in any distribution of the assets available for distribution in proportion to the
respective amounts which would otherwise be payable in respect of the shares of Series A Preferred
Stock, shares of Series B Preferred Stock and shares of Series B-1 Preferred Stock held by them
upon such distribution if all amounts payable on or with respect to such shares were paid in full.
(b) Distribution of Remaining Assets. After the payment in full of the Senior
Liquidation Amounts required to be paid to the holders of shares of Preferred Stock, the remaining
assets available for distribution to the Corporation’s stockholders having a value equal
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to the
Preferred Participation Amount (as defined below) shall be distributed among the holders of the
shares of Preferred Stock and Common Stock, pro rata based on the number of shares held by each
such holder, treating for this purpose all such securities as if they had been converted to
Common Stock pursuant to the terms of this Fifth Amended and Restated Certificate of
Incorporation immediately prior to such dissolution, liquidation, or winding up of the Corporation;
provided, however, that the aggregate per share amount to be distributed to the holders of a series
of Preferred Stock pursuant to this Subsection 2(b) shall not exceed the applicable Base
Liquidation Amount for such series of Preferred Stock. The aggregate amount that a holder of a
share of a series of Preferred Stock is entitled to receive under Subsection 2(a) and 2(b) is
hereinafter referred to as the applicable “Liquidation Amount”. For the purposes of this
Subsection 2(b), “Preferred Participation Amount” shall mean the greater of (i) the fair market
value of assets available for distribution to the Corporation’s stockholders after the payment in
full of the Senior Liquidation Amounts required to be paid to the holders of shares of Preferred
Stock less $3,000,000 (proportionately reduced to the extent that the holders of Series A Preferred
Stock, Series B Preferred Stock and/or Series B-1 Preferred Stock agree to amend this Certificate
of Incorporation to reduce the Base Liquidation Amount of the Series A Preferred Stock, Series B
Preferred Stock and/or the Series B-1 Preferred Stock) or (ii) $0.00; provided, however, that from
and after the consummation of a Qualified Financing (as hereinafter defined), the “Preferred
Participation Amount” shall mean the fair market value of assets available for distribution to the
Corporation’s stockholders after the payment in full of the Senior Liquidation Amounts required to
be paid to the holders of shares of Preferred Stock
After the payment in full of the Liquidation Amount required to be paid to the holders of
shares of Preferred Stock pursuant to the foregoing paragraph, the remaining assets available for
distribution to the Corporation’s stockholders shall be distributed among the holders of the shares
of Common Stock, pro rata based on the number of shares held by each such holder.
(c) Deemed Liquidation Events.
(i) The following events shall be deemed to be a liquidation of the Corporation for purposes
of this Section 2 (a “Deemed Liquidation Event”), unless the holders of 60% of the voting
power of the Preferred Stock then outstanding elect otherwise by written notice given to the
Corporation at least 20 days prior to the effective date of any such event:
(A) a merger or consolidation in which
(I)
the Corporation
is a constituent party or
(II)
a subsidiary of
the Corporation is a constituent party and the
Corporation issues shares of its capital stock pursuant
to such merger or consolidation,
except any such merger or consolidation involving the Corporation or a subsidiary of the Company in
which the shares of capital stock of the Corporation outstanding immediately prior to such merger
or consolidation continue to represent, or are converted or exchanged for capital stock which
represent, immediately following such merger or consolidation, at least a majority,
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by voting power, of the capital stock of (1) the surviving or resulting corporation or (2) if the
surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately
following such merger or consolidation, the parent corporation of such surviving or resulting
corporation; or
(B) the closing of the transfer (whether by merger, consolidation or otherwise), in one
transaction or a series of related transactions, to a person or group of affiliated persons (other
than an underwriter of this Corporation’s securities), of this Corporation’s securities if, after
such closing, such person or group of affiliated persons would hold at least a majority of the
outstanding voting stock of this Corporation (or the surviving or acquiring entity),
provided that this Subsection 2(c)(i)(B) shall not include any equity financing transaction
involving the original issuance of the Corporation’s securities the principal purposes of which is
financing the operations and business of the Corporation; or
(C) the sale, lease, exclusive license, transfer or other disposition, in a single transaction
or series of related transactions, by the Corporation or any subsidiary of the Corporation of all
or substantially all the assets of the Corporation and its subsidiaries taken as a whole, except
where such sale, lease, exclusive license, transfer or other disposition is to a wholly owned
subsidiary of the Corporation.
(ii) The Corporation shall not have the power to effect any transaction constituting a Deemed
Liquidation Event pursuant to Subsections 2(c)(i)(A) and 2(c)(i)(B) above unless the
agreement or plan of merger or consolidation or purchase agreement provides that the consideration
payable to the stockholders of the Corporation shall be allocated among the holders of capital
stock of the Corporation in accordance with Subsections 2(a) and 2(b) above.
(iii) In the event of a Deemed Liquidation Event pursuant to Subsection 2(c)(i)(C)
above, if the Corporation does not effect a dissolution of the Corporation under the General
Corporation Law within 60 days after such Deemed Liquidation Event, then (A) the Corporation shall
deliver a written notice to each holder of Preferred Stock no later than the 60th day
after the Deemed Liquidation Event advising such holders of their right (and the requirements to be
met to secure such right) pursuant to the terms of the following clause (B) to require the
redemption of such shares of Preferred Stock, and (B) if the holders of at least 60% of the voting
power of the then outstanding shares of Preferred Stock so request in a written instrument
delivered to the Corporation not later than 75 days after such Deemed Liquidation Event, the
Corporation shall use the consideration received by the Corporation for such Deemed Liquidation
Event (net of any retained liabilities associated with the assets sold or technology licensed, as
determined in good faith by the Board of Directors of the Corporation) (the “Net Proceeds”) to
redeem, to the extent legally available therefor, on the 90th day after such Deemed
Liquidation Event (the “Liquidation Redemption Date”), all outstanding shares of Series A Preferred
Stock, Series B Preferred Stock and Series B-1 Preferred Stock at a price per share equal to the
applicable Liquidation Amount. In the event of a redemption pursuant to the preceding sentence, if
the Net Proceeds are less than the aggregate applicable Liquidation Amount for all outstanding
shares of Preferred Stock, or if the lawfully available funds to effect such redemption are less
than the aggregate Liquidation Amounts payable to all holders of Preferred Stock, the Corporation
shall redeem a pro rata portion of each holder’s shares of Preferred Stock to the fullest extent of
such Net Proceeds or such lawfully available funds, as the
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case may be, and, where such redemption is limited by the amount of lawfully available funds, the
Corporation shall redeem the remaining shares to have been redeemed as soon as practicable after
the Corporation has funds legally available therefor. The provisions of Subsections 6(b)
through 6(e) below shall apply, with such necessary changes in the details thereof as are
necessitated by the context, to the redemption of the Preferred Stock pursuant to this
Subsection 2(c)(iii). Prior to the distribution or redemption provided for in
this Subsection 2(c)(iii), the Corporation shall not expend or dissipate the consideration
received for such Deemed Liquidation Event, except to discharge expenses incurred in the ordinary
course of business.
(iv) The amount deemed paid or distributed to the holders of capital stock of the Corporation
upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or
redemption shall be the cash or the fair market value of the property, rights or securities paid or
distributed to such holders by the Corporation or the acquiring person, firm or other entity. The
fair market value of such property, rights or securities shall be determined in good faith by the
Board of Directors of the Corporation, and the Board of Directors shall notify all holders of
shares of Preferred Stock in writing of such determination. The value of such property, rights or
securities for purposes of the distribution hereunder shall be the value as so determined by the
Board of Directors, unless the holders of 60% of the voting power of the outstanding shares of
Preferred Stock shall object thereto in writing within 15 days after the date of such notice. In
the event of such objection, the valuation of such property, rights or securities for purposes of
such distribution shall be determined by an arbitrator mutually agreed upon and selected by the
objecting stockholders and the Board of Directors, or in the event a single arbitrator cannot be
agreed upon within 10 days after the written objection sent by the objecting stockholders, the
valuation of such property, rights or securities shall be determined by an arbitration in which (i)
the objecting stockholders shall name in their notice of objection one arbitrator, (ii) the Board
of Directors shall name a second arbitrator within 15 days from the receipt of such notice, (iii)
the two arbitrators thus selected shall select a third arbitrator within 15 days thereafter, and
(iv) the three arbitrators thus selected shall determine by majority vote the valuation of such
assets within 15 days thereafter for purposes of such distribution. In the event the third
arbitrator is not selected as provided herein, then such arbitrator shall be selected by the
President of the American Arbitration Association (“AAA”). The costs of such arbitration shall be
borne by the Corporation or by the holders of Preferred Stock (on a pro rata basis out of the
assets otherwise distributable to them) as follows: (i) if the valuation as determined by the
arbitrators is greater than 90% but less than 110% of the valuation as determined by the Board of
Directors, the holders of Preferred Stock shall pay the costs of the arbitration, and (ii)
otherwise, the Corporation shall bear the costs of the arbitration. The arbitration shall be held
in Boston, Massachusetts, in accordance with the rules of the AAA. The award made by the
arbitrators shall be binding upon the Corporation and the holders of all shares of Common Stock and
Preferred Stock, no appeal may be taken from such award, and judgment thereon may be entered in any
court of competent jurisdiction.
(d) Allocation of Escrow. In the case of a Deemed Liquidation Event pursuant to
Subsection 2(c)(i)(A) above, if any portion of the consideration payable to the
stockholders of the Corporation is placed into escrow and/or is payable to the stockholders of the
Corporation subject to contingencies, the operative transaction documents for such Deemed
Liquidation Event shall provide that (i) the portion of such consideration that is not placed in
escrow and not subject to any contingencies (the “Initial Consideration”) shall be allocated
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among the holders of capital stock of the Corporation in accordance with Subsections 2(a)
and 2(b) above as if the Initial Consideration were the only consideration payable in
connection with such Deemed Liquidation Event and (ii) any additional consideration which becomes
payable to the stockholders of the Corporation upon release from escrow or satisfaction of
contingencies shall be allocated among the holders of capital stock of the Corporation in
accordance with Subsections 2(a) and 2(b) above after taking into account the
previous payment of the Initial Consideration as part of the same transaction.
3. Voting.
(a) On any matter presented to the stockholders of the Corporation for their action or
consideration at any meeting of stockholders of the Corporation (or by written consent of
stockholders in lieu of meeting), including any votes, consents, elections, requests or notices,
each holder of outstanding shares of Preferred Stock shall be entitled to cast the number of votes
equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held
by such holder are convertible as of the record date for determining stockholders entitled to vote
on such matter and shall be entitled, notwithstanding any provision hereof, to notice of any
stockholders’ meeting in accordance with the Bylaws of this Corporation. Except as provided by law
or by the provisions of Subsection 3(b) or 3(c) below, holders of Series A Preferred Stock,
Series B Preferred Stock and Series B-1 Preferred Stock shall vote together with the
holders of Common Stock, and with the holders of any other series of preferred stock the terms of
which so provide, as a single class.
(b) The holders of record of the shares of Preferred Stock, exclusively and as a separate
class, shall be entitled to elect two (2) directors of the Corporation (each a “Preferred Director”
and together “Preferred Directors”). The holders of record of the shares of Common Stock,
exclusively and voting together as a single class, shall be entitled to elect one director of the
Corporation (the “Common Director”). Any director elected as provided in the preceding two
sentences may be removed either with or without cause by, and only by, the affirmative vote of the
holders of the shares of the class or series of stock entitled to elect such director or directors,
given either at a special meeting of such stockholders duly called for that purpose or pursuant to
a written consent of stockholders. The holders of record of the shares of Preferred Stock, Common
Stock and any other class or series of voting stock, voting together as a single class, shall be
entitled to elect the balance of the total number of Directors of the Corporation. At any meeting
held for the purpose of electing a director, the presence in person or by proxy of the holders of a
majority of the outstanding shares of the class or series entitled to elect such director shall
constitute a quorum for the purpose of electing such director. A vacancy in any directorship
filled by the holders of any class or series shall be filled only by vote or written consent in
lieu of a meeting of the holders of such class or series or by any remaining director or directors
elected by the holders of such class or series pursuant to this Subsection 3(b).
(c) At any time when at least 2,867,912 shares of Preferred Stock are outstanding (subject to
appropriate adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares), except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or by the Certificate
of Incorporation, and in addition to any other vote required by law or the Certificate of
Incorporation, without the written consent or affirmative vote of the holders of at
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least 60% of the voting power of the then outstanding shares of Preferred Stock, given in writing
or by vote at a meeting, consenting or voting (as the case may be) separately as a single
class,the Corporation shall not, either directly or by amendment, merger, consolidation
or otherwise:
(i) alter or change the rights, preferences or privileges of the shares of Preferred Stock;
(ii) amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the
Corporation (whether by merger, consolidation, reorganization or otherwise);
(iii) create or authorize the creation of any equity security (including any other security
convertible into or exercisable for any such equity security) or reclassify any existing stock into
a new class or series of stock unless the same ranks junior to the Preferred Stock with regard to
redemption, liquidation preference, voting and dividends;
(iv) liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any
Deemed Liquidation Event or any other sale or disposition of a substantial portion of the
Corporation’s assets, or consent to any of the foregoing;
(v) incur or guaranty indebtedness for borrowed money, in a single or series of related
transactions, in an amount in excess of $500,000;
(vi) increase the aggregate number of shares of Common Stock available for issuance under the
Corporation’s 2004 Equity Incentive Plan or 2007 Stock Incentive Plan, as amended, or enter into
any other plan or arrangement providing for the issuance of shares of Common Stock, Options or
Convertible Securities to an officer, employee, director or independent contractor of the
Corporation;
(vii) acquire the equity interests of any other entity if such acquisition would require the
consolidation of the results of operations of such entity into the results of operations of the
Corporations in accordance with generally accepted accounting principles or acquire all or
substantially all of the assets of any other entity;
(viii) increase or decrease the authorized number of shares of Preferred Stock;
(ix) effect any recapitalization or reorganization of the Corporation;
(x) purchase or redeem or pay or declare any dividend or make any distribution on, any shares
of stock other than the Preferred Stock, except as expressly authorized herein, or permit any
subsidiary of the Corporation to take any such action, other than (A) dividends or other
distributions payable on the Common Stock solely in the form of additional shares of Common Stock,
(B) securities repurchased from former employees, officers, directors, consultants or other persons
who performed services for the Corporation or any subsidiary in connection with the cessation of
such employment or service at the lower of the original purchase price or the then-current fair
market value thereof, or (C) pursuant to rights of first refusal in favor of the Corporation set
forth in the Amended and Restated Right of First Refusal
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and Co-Sale Agreement dated on or about December 5, 2005 by and among the Corporation and the
other parties thereto, as the same may be amended from time to time;
(xi) increase or decrease the authorized number of directors constituting the Board of
Directors; or
(xii) enter into any agreement to effect any of the foregoing actions restricted by this
subsection 3(c).
(d) At any time when at least 1,166,872 shares of Series B Preferred Stock and Series B-1
Preferred Stock are outstanding (subject to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting such shares), except
where the vote or written consent of the holders of a greater number of shares of the Corporation
is required by law or by the Certificate of Incorporation, and in addition to any other vote
required by law or the Certificate of Incorporation, without the written consent or affirmative
vote of a majority of the then outstanding shares of Series B Preferred Stock and Series B-1
Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may
be) as a separate class,the Corporation shall not, either directly or by amendment,
merger, consolidation or otherwise, amend, alter or repeal any provision of the Certificate of
Incorporation or Bylaws of the Corporation if such action would adversely alter or change the
preferences, rights, privileges or powers of, or the restrictions provided for the benefit of, the
Series B Preferred Stock or Series B-1 Preferred Stock.
(e) At any time when at least 1,111,111 shares of Series B-1 Preferred Stock are outstanding
(subject to appropriate adjustment in the event of any stock dividend, stock split, combination or
other similar recapitalization affecting such shares), except where the vote or written consent of
the holders of a greater number of shares of the Corporation is required by law or by the
Certificate of Incorporation, and in addition to any other vote required by law or the Certificate
of Incorporation, without the written consent or affirmative vote of a majority of the then
outstanding shares of Series B-1 Preferred Stock, given in writing or by vote at a meeting,
consenting or voting (as the case may be) as a separate class,the Corporation shall
not, (i) either directly or by amendment, merger, consolidation or otherwise, amend, alter or
repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation if such
action would (A) reduce the preferential payment payable in respect of a share of Series B-1
Preferred Stock as set forth in Subsection (B)(2)(a) of Article FOURTH (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other similar
recapitalization affecting such share) or (B) adversely alter or change the provisions provided for
the benefit of the Series B-1 Preferred Stock in Subsection B(5)(a) or (ii) increase or decrease
the authorized number of shares of Series B-1 Preferred Stock.
4. Optional Conversion The holders of the Preferred Stock shall have conversion rights
as follows (the “Conversion Rights”):
(a) Right to Convert Each share of Preferred Stock shall be convertible, at the option
of the holder thereof, at any time and from time to time, and without the payment of additional
consideration by the holder thereof, into such number of fully paid and nonassessable shares of
Common Stock as is determined (x) in the case of the Series A Preferred Stock, by
10
dividing $0.5795 (subject to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization affecting the Series A Preferred Stock) by the
Series A Conversion Price (as defined below) in effect at the time of conversion, (y) in the case
of the Series B Preferred Stock, by dividing $0.815 (subject to appropriate adjustment in the
event of any stock dividend, stock split, combination or other similar recapitalization
affecting the Series B Preferred Stock) by the Series B Conversion Price (as defined below) in
effect at the time of conversion, and (z) in the case of the Series B-1 Preferred Stock, by
dividing $4.50 (subject to appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting the Series B-1 Preferred Stock) by the
Series B-1 Conversion Price (as defined below) in effect at the time of conversion. The “Series A
Conversion Price” shall initially be equal to the Series A Original Issue Price, the “Series B
Conversion Price” shall initially be equal to the Series B Original Issue Price, and the “Series
B-1 Conversion Price” shall initially be equal to the Series B-1 Original Issue Price. The Series
A Conversion Price, the Series B Conversion Price and the Series B-1 Conversion Price are each
referred to sometimes herein as a “Conversion Price”. The initial Series A Conversion Price, the
initial Series B Conversion Price, the initial Series B-1 Conversion Price and the rate at which
shares of Series A Preferred Stock, Series B Preferred Stock and Series B-1 Preferred Stock may be
converted into shares of Common Stock, shall be subject to adjustment as provided below.
In the event of a notice of redemption of any shares of Preferred Stock pursuant to
Section 6 hereof, the Conversion Rights of the shares designated for redemption shall
terminate at the close of business on the last full day preceding the date fixed for redemption,
unless the redemption price is not paid on such redemption date, in which case the Conversion
Rights for such shares shall continue until such price is paid in full. In the event of a
liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation Event, the
Conversion Rights shall terminate at the close of business on the last full day preceding the date
fixed for the payment of any such amounts distributable on such event to the holders of Preferred
Stock, unless such amounts are not paid on such date fixed for payment, in which case the
Conversion Rights for such shares shall continue until immediately prior to such amount being paid
in full.
(b) Fractional Shares. No fractional shares of Common Stock shall be issued upon
conversion of the Preferred Stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the fair
market value of a share. Whether or not fractional shares would be issuable upon such conversion
shall be determined on the basis of the total number of shares of Preferred Stock the holder is at
the time converting into Common Stock and the aggregate number of shares of Common Stock issuable
upon such conversion.
(c) Mechanics of Conversion.
(i) In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock
into shares of Common Stock, such holder shall surrender the certificate or certificates for such
shares of Preferred Stock (or, if such registered holder alleges that such certificate has been
lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the
Corporation to indemnify the Corporation against any claim that may be made against the Corporation
on account of the alleged loss, theft or destruction of such
11
certificate), at the office of the transfer agent for the Preferred Stock (or at the principal
office of the Corporation if the Corporation serves as its own transfer agent), together with
written notice that such holder elects to convert all or any number of the shares of the Preferred
Stock represented by such certificate or certificates and, if applicable, any event on which such
conversion is contingent. Such notice shall state such holder’s name or the names of the nominees
in which such holder wishes the certificate or certificates for shares of Common Stock to be
issued. If required by the Corporation, certificates surrendered for conversion shall be endorsed
or accompanied by a written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in
writing. The close of business on the date of receipt by the transfer agent of such certificates
(or lost certificate affidavit and agreement) and notice (or by the Corporation if the Corporation
serves as its own transfer agent) shall be the time of conversion (the “Conversion Time”), and the
shares of Common Stock issuable upon conversion of the shares represented by such certificate shall
be deemed to be outstanding of record as of such date. The Corporation shall, as soon as
practicable after the Conversion Time, issue and deliver at such office to such holder of Preferred
Stock, or to his, her or its nominees, a certificate or certificates for the number of shares of
Common Stock to which such holder shall be entitled, together with cash in lieu of any fraction of
a share.
(ii) The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve
and keep available out of its authorized but unissued stock, for the purpose of effecting the
conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all outstanding Preferred Stock;
and if at any time the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the
Corporation shall take such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes,
including, without limitation, engaging in best efforts to obtain the requisite stockholder
approval of any necessary amendment to this Certificate of Incorporation. Before taking any action
which would cause an adjustment reducing the Conversion Price of any series of Preferred Stock
below the then par value of the shares of Common Stock issuable upon conversion of such series of
Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Conversion Price.
(iii) All shares of Preferred Stock which shall have been surrendered for conversion as herein
provided shall no longer be deemed to be outstanding and all rights with respect to such shares,
including the rights, if any, to receive notices and to vote, shall immediately cease and terminate
at the Conversion Time, except only the right of the holders thereof to receive shares of Common
Stock in exchange therefor, such amounts shall be paid in full by the Corporation at the Conversion
Time. Any shares of Preferred Stock so converted shall be retired and cancelled and shall not be
reissued as shares of such series, and the Corporation (without the need for stockholder action)
may from time to time take such appropriate action as may be necessary to reduce the authorized
number of shares of Preferred Stock accordingly.
12
(iv) Upon any such conversion, no adjustment to the Conversion Price of any series of
Preferred Stock shall be made for any declared but unpaid dividends on such series of Preferred
Stock surrendered for conversion or on the Common Stock delivered upon conversion.
(v) The Corporation shall pay any and all issue and other similar taxes that may be payable in
respect of any issuance or delivery of shares of Common Stock upon conversion of shares of
Preferred Stock pursuant to this Section 4. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved in the issuance
and delivery of shares of Common Stock in a name other than that in which the shares of Preferred
Stock so converted were registered, and no such issuance or delivery shall be made unless and until
the person or entity requesting such issuance has paid to the Corporation the amount of any such
tax or has established, to the satisfaction of the Corporation, that such tax has been paid.
(d) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this Section 4, the following
definitions shall apply:
(A) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise
acquire Common Stock or Convertible Securities.
(B) “Series B-1 Original Issue Date” shall mean the date on which the first share of Series
B-1 Preferred Stock was issued.
(C) “Convertible Securities” shall mean any evidences of indebtedness, shares or other
securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding
Options.
(D) “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or,
pursuant to Subsection 4(d)(iii) below, deemed to be issued) by the Corporation after the
Series B-1 Original Issue Date, other than the following (“Exempted Securities”):
(I)
shares of Common
Stock issued or deemed issued as a dividend or
distribution on the Series A Preferred Stock, the Series
B Preferred Stock or the Series B-1 Preferred Stock or
upon conversion of the Series A Preferred Stock, the
Series B Preferred Stock or the Series B-1 Preferred
Stock in accordance with the terms of this Fifth Amended
and Restated Certificate of Incorporation;
(II)
shares of Common
Stock issued or issuable by reason of a dividend, stock
split, split-up or other distribution on shares of
Common Stock that is covered by Subsection 4(e) or
4(f) below (provided
13
such dividend, stock split, split-up or other
distribution is coupled with an issuance of Common
Stock to holders of shares of Series A Preferred
Stock, Series B Preferred Stock and Series B-1
Preferred Stock in an appropriate amount);
(III)
up to 9,633,582
shares of Common Stock, or such greater number as may be
approved from time to time by the Board of Directors of
the Corporation (including the Preferred Directors),
issued or deemed issued to employees, officers or
directors of, or consultants or advisors to, the
Corporation or any of its subsidiaries pursuant to the
Corporation’s 2004 Incentive Plan or 2007 Stock
Incentive Plan, as each such plan may be amended from
time to time;
(IV)
shares of Common
Stock or Convertible Securities actually issued upon the
exercise of Options or shares of Common Stock actually
issued upon the conversion or exchange of Convertible
Securities, in each case provided such issuance is
pursuant to the terms of such Option or Convertible
Security, and after giving effect to Subsections
4(d)(iii) and 4(d)(iv) below;
(V)
shares of Common
Stock issued or deemed issued in connection with a
financing by bank, equipment lessors or other lending
institutions, provided that such issuances, in the
aggregate, do not exceed one percent (1%) of the total
issued and outstanding capital stock of the Corporation
on a common stock equivalent basis assuming the exercise
of all outstanding Options and the conversion into
common stock of all outstanding Convertible Securities,
provided any such financing is approved by the Board of
Directors of the Corporation, such approval to include
the approval of each of the Preferred Directors then in
office;
(VI)
shares of Common
Stock issued or deemed issued solely in consideration
for the acquisition (whether by merger or otherwise) by
the Corporation or any of its subsidiaries of all or
substantially all of the stock or assets of any other
person or entity, provided any such acquisition is
approved by the Board of Directors of the Corporation,
such
14
approval to include the approval of each of the
Preferred Directors then in office; or
(VII)
shares of Common
Stock issued or deemed issued solely in connection with
a joint venture in which the Company is a participant,
or a license, marketing or distribution agreement to
which the Company is a party, provided that such
issuances, in the aggregate, do not exceed one percent
(1%) of the total issued and outstanding capital stock
of the Company on a common stock equivalent basis
assuming the exercise of all outstanding Options and the
conversion into common stock of all outstanding
Convertible Securities, provided any transaction covered
by foregoing is approved by the Board of Directors of
the Corporation, such approval to include the approval
of each of the Preferred Directors then in office.
(ii) No Adjustment of Conversion Price. No adjustment in the Conversion Price of a
series of Preferred Stock shall be made as the result of the issuance of Additional Shares of
Common Stock if: (a) the consideration per share (determined pursuant to Subsection
4(d)(v)) for such Additional Shares of Common Stock issued or deemed to be issued by the
Corporation is equal to or greater than the applicable Conversion Price for such series of
Preferred stock in effect immediately prior to the issuance or deemed issuance of such Additional
Shares of Common Stock, or (b) prior to such issuance or deemed issuance, the Corporation receives
written notice from the holders of at least 60% of the voting power of the then outstanding shares
of Preferred Stock agreeing that no such adjustment shall be made as the result of the issuance or
deemed issuance of such Additional Shares of Common Stock.
(iii) Deemed Issue of Additional Shares of Common Stock.
(A) If the Corporation at any time or from time to time after the Series B-1 Original Issue
Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities
which, upon exercise, conversion or exchange thereof, would entitle the holder thereof to receive
Exempted Securities) or shall fix a record date for the determination of holders of any class of
securities entitled to receive any such Options or Convertible Securities, then the maximum number
of shares of Common Stock (as set forth in the instrument relating thereto, assuming the
satisfaction of any conditions to exercisability, convertibility or exchangeability but without
regard to any provision contained therein for a subsequent adjustment of such number) issuable upon
the exercise of such Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issue or, in case such a record date shall have been
fixed, as of the close of business on such record date.
15
(B) If the terms of any Option or Convertible Security, the issuance of which resulted in an
adjustment to the Conversion Price of a series of Preferred Stock pursuant to the terms of
Subsection 4(d)(iv) below, are revised (either automatically pursuant to the provisions
contained therein or as a result of an amendment to such terms, but excluding automatic adjustments
to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible
Security) to provide for either (1) any increase or decrease in the number of shares of Common
Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security
or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise,
conversion or exchange, then, effective upon such increase or decrease becoming effective, such
Conversion Price computed upon the original issue of such Option or Convertible Security (or upon
the occurrence of a record date with respect thereto) shall be readjusted to the Conversion Price
as would have obtained had such revised terms been in effect upon the original date of issuance of
such Option or Convertible Security. Notwithstanding the foregoing, no adjustment pursuant to this
clause (B) shall have the effect of increasing the Conversion Price of any series of Preferred
Stock to an amount which exceeds the lower of (i) the Conversion Price as adjusted immediately
after the original issuance of such Options or Convertible Securities (or the record date therefor)
on the original adjustment date, and (ii) the Conversion Price that would have resulted from any
issuances of Additional Shares of Common Stock between such original issuance of such Options or
Convertible Securities and the date of any readjustment of such Conversion Price pursuant to this
Subsection 4(d)(iii)(B).
(C) If the terms of any Option or Convertible Security (excluding Options or Convertible
Securities which, upon exercise, conversion or exchange thereof, would entitle the holder thereof
to receive Exempted Securities), the issuance of which did not result in an adjustment to the
Conversion Price of a series of Preferred Stock pursuant to the terms of Subsection
4(d)(iv) below (either because the consideration per share (determined pursuant to
Subsection 4(d)(v) hereof) of the Additional Shares of Common Stock subject thereto was
equal to or greater than the Conversion Price of such series of Preferred Stock then in effect, or
because such Option or Convertible Security was issued before the Series B-1 Original Issue Date),
are revised after the Series B-1 Original Issue Date to provide for either (1) any increase or
decrease in the number of shares of Common Stock issuable upon the exercise, conversion or exchange
of any such Option or Convertible Security or (2) any increase or decrease in the consideration
payable to the Corporation upon such exercise, conversion or exchange, then such Option or
Convertible Security, as so amended, and the Additional Shares of Common Stock subject thereto
(determined in the manner provided in Subsection 4(d)(iii)(A) above) shall be deemed to
have been issued effective upon such increase or decrease becoming effective.
(D) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged
Convertible Security which resulted (either upon its original issuance or upon a revision of its
terms) in an adjustment to the Conversion Price of a series of Preferred Stock pursuant to the
terms of Subsection 4(d)(iv) below, such Conversion Price, to the extent affected by or in
any way computed based on the issuance of such Option or Convertible Security, shall be readjusted
to such Conversion Price so as to reflect the issuance of only the number of Additional Shares of
Common Stock (and Convertible Securities that remain in effect) actually issued upon the exercise
of such Option or conversion or exchange of such Convertible Security.
16
(iv) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common
Stock. In the event the Corporation shall at any time after the Series B-1 Original Issue Date
issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be
issued pursuant to Subsection 4(d)(iii)), without consideration or for a consideration per
share less than the Conversion Price of a series of Preferred Stock in effect immediately prior to
such issue, then such Conversion Price shall be reduced, concurrently with such issue, to a price
(calculated to the nearest one-hundredth of a cent) determined in accordance with the following
formula:
CP2 = CP1 * (A + B) ¸ (A + C)
For purposes of the foregoing formula, the following definitions shall apply:
(A) “CP2”shall mean the applicable Conversion Price in effect
immediately after such issue of Additional Shares of Common Stock
(B) “CP1” shall mean the applicable Conversion Price in effect immediately prior to
such issue of Additional Shares of Common Stock;
(C) “A” shall mean the number of shares of Common Stock outstanding and deemed outstanding
immediately prior to such issue of Additional Shares of Common Stock (treating for this purpose as
outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately
prior to such issue or upon conversion of Convertible Securities (including the Preferred Stock)
outstanding immediately prior to such issue);
(D) “B” shall mean the number of shares of Common Stock that would have been issued if such
Additional Shares of Common Stock had been issued at a price per share equal to CP1
(determined by dividing the aggregate consideration received by the Corporation in respect of such
issue by CP1); and
(E) “C” shall mean the number of such Additional Shares of Common Stock issued in such
transaction.
(v) Determination of Consideration. For purposes of this Subsection 4(d), the
consideration received by the Corporation for the issue of any Additional Shares of Common Stock
shall be computed as follows:
(A) Cash and Property: Such consideration shall:
(I)
insofar as it
consists of cash, be computed at the aggregate amount of
cash received by the Corporation, excluding amounts paid
or payable for accrued interest;
(II)
insofar as it
consists of property other than cash, be computed at the
fair market value thereof at the
17
time of such issue, as determined in good faith
by the Board of Directors of the Corporation
(including each of the Preferred Directors then in
office); and
(III)
in the event
Additional Shares of Common Stock are issued together
with other shares or securities or other assets of the
Corporation for consideration which covers both, be the
proportion of such consideration so received, computed
as provided in clauses (I) and (II) above, as
determined in good faith by the Board of Directors of
the Corporation.
(B) Options and Convertible Securities. The consideration per share received by the
Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to
Subsection 4(d)(iii), relating to Options and Convertible Securities, shall be determined
by dividing
(IV)
the total amount,
if any, received or receivable by the Corporation as
consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate
amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment
of such consideration) payable to the Corporation upon
the exercise of such Options or the conversion or
exchange of such Convertible Securities, or in the case
of Options for Convertible Securities, the exercise of
such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities,
by
(V)
the maximum
number of shares of Common Stock (as set forth in the
instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment
of such number) issuable upon the exercise of such
Options or the conversion or exchange of such
Convertible Securities.
(vi) Multiple Closing Dates. In the event the Corporation shall issue on more than
one date Additional Shares of Common Stock that are a part of one transaction or a series of
related transactions and that would result in an adjustment to the Conversion Price of a series of
Preferred Stock pursuant to the terms of Subsection 4(d)(iv) above, and such issuance dates
occur within a period of no more than 90 days from the first such issuance to the final such
issuance, then, upon the final such issuance, such Conversion Price shall be readjusted to give
effect to all such issuances as if they occurred on the date of the first such issuance (and
without
18
additional giving effect to any adjustments as a result of any subsequent issuances within
such period).
(e) Adjustment for Stock Splits and Combinations. If the Corporation shall at any
time or from time to time after the Series B-1 Original Issue Date effect a subdivision of the
outstanding Common Stock without a comparable subdivision of the Series A Preferred Stock, Series B
Preferred Stock and the Series B-1 Preferred Stock or combine the outstanding shares of Series A
Preferred Stock, Series B Preferred Stock and/or Series B-1 Preferred Stock without a comparable
combination of the Common Stock, the Conversion Price of the applicable series of Preferred Stock
in effect immediately before that subdivision or combination shall be proportionately decreased so
that the number of shares of Common Stock issuable on conversion of each share of such series shall
be increased in proportion to such increase in the aggregate number of shares of Common Stock
outstanding. If the Corporation shall at any time or from time to time after the Series B-1
Original Issue Date combine the outstanding shares of Common Stock without a comparable combination
of the Series A Preferred Stock, Series B Preferred Stock and/or Series B-1 Preferred Stock or
effect a subdivision of the outstanding shares of Series A Preferred Stock, Series B Preferred
Stock and/or Series B-1 Preferred Stock without a comparable subdivision of the Common Stock, the
Conversion Price of the applicable series of Preferred Stock in effect immediately before the
combination or subdivision shall be proportionately increased so that the number of shares of
Common Stock issuable on conversion of each share of such series shall be decreased in proportion
to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment
under this subsection shall become effective at the close of business on the date the subdivision
or combination becomes effective.
(f) Adjustment for Certain Dividends and Distributions. In the event the Corporation
at any time or from time to time after the Series B-1 Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to receive, a dividend
or other distribution payable on the Common Stock in additional shares of Common Stock, then and in
each such event the Series A Conversion Price, the Series B Conversion Price and the Series B-1
Conversion Price in effect immediately before such event shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the close of business on
such record date, by multiplying each such Conversion Price in effect immediately prior to such
dividend or other distribution by a fraction:
(i) the numerator of which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of business on such record
date, and
(ii) the denominator of which shall be the total number of shares of Common Stock issued and
outstanding immediately after to the time of such issuance or the close of business on such record
date plus the number of shares of Common Stock issuable in payment of such dividend or
distribution;
provided, however, that if such record date shall have been fixed and such dividend
is not fully paid or if such distribution is not fully made on the date fixed therefor, each such
Conversion Price shall be recomputed accordingly as of the close of business on such record date
and
19
thereafter each such Conversion Price shall be adjusted pursuant to this subsection as of the
time of actual payment of such dividends or distributions; and provided further,
however, that no such adjustment shall be made to the Conversion Price of any series of
Preferred Stock if the holders of such series of Preferred Stock simultaneously receive (i) a
dividend or other distribution of shares of Common Stock in a number equal to the number of shares
of Common Stock as they would have received if all outstanding shares of such series of Preferred
Stock had been converted into Common Stock on the date of such event or (ii) a dividend or other
distribution of shares of such series of Preferred Stock which are convertible, as of the date of
such event, into such number of shares of Common Stock as is equal to the number of additional
shares of Common Stock being issued with respect to each share of Common Stock in such dividend or
distribution.
(g) Adjustments for Other Dividends and Distributions. In the event the Corporation
at any time or from time to time after the Series B-1 Original Issue Date shall make or issue, or
fix a record date for the determination of holders of capital stock of the Corporation entitled to
receive, a dividend or other distribution payable in securities of the Corporation (other than a
distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in
other property and the provisions of Section (B)(1) of this Article Fourth do not apply to such
dividend or distribution, then and in each such event the holders of Preferred Stock shall receive,
simultaneously with the distribution to the holders of such capital stock, a dividend or other
distribution of such securities or other property in an amount equal to the amount of such
securities or other property as they would have received if all outstanding shares of Preferred
Stock had been converted into Common Stock on the date of such event.
(h) Adjustment for Merger or Reorganization, etc. Subject to the provisions of
Subsection 2(c), if there shall occur any reorganization, recapitalization, reclassification,
consolidation or merger involving the Corporation in which the Common Stock (but not the Preferred
Stock) is converted into or exchanged for securities, cash or other property (other than a
transaction covered by Subsections (e), (f) or (g) of this Section 4), then, following any such
reorganization, recapitalization, reclassification, consolidation or merger, each share of Series A
Preferred Stock, Series B Preferred Stock and Series B-1 Preferred Stock shall thereafter be
convertible in lieu of the Common Stock into which it was convertible prior to such event into the
kind and amount of securities, cash or other property which a holder of the number of shares of
Common Stock of the Corporation issuable upon conversion of one share of such series of Preferred
Stock immediately prior to such reorganization, recapitalization, reclassification, consolidation
or merger would have been entitled to receive pursuant to such transaction; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors of the Corporation)
shall be made in the application of the provisions in this Section 4 with respect to the rights and
interests thereafter of the holders of the Preferred Stock, to the end that the provisions set
forth in this Section 4 (including provisions with respect to changes in and other adjustments of
the Conversion Price of each series of Preferred Stock) shall thereafter be applicable, as nearly
as reasonably may be, in relation to any securities or other property thereafter deliverable upon
the conversion of the Preferred Stock.
(i) Certificate as to Adjustments. Upon the occurrence of each adjustment or
readjustment of the Conversion Price of a series of Preferred Stock pursuant to this Section 4, the
Corporation at its expense shall, as promptly as reasonably practicable but in any event not later
20
than 10 days thereafter, compute such adjustment or readjustment in accordance with the terms
hereof and furnish to each holder of such series of Preferred Stock a certificate setting forth
such adjustment or readjustment (including the kind and amount of securities, cash or other
property into which such series of Preferred Stock is convertible) and showing in detail the facts
upon which such adjustment or readjustment is based. The Corporation shall, as promptly as
reasonably practicable after the written request at any time of any holder of Preferred Stock (but
in any event not later than 10 days thereafter), furnish or cause to be furnished to such holder a
certificate setting forth (i) the Conversion Price of each series of Preferred Stock held by such
holder then in effect, and (ii) the number of shares of Common Stock and the amount, if any, of
other securities, cash or property which then would be received upon the conversion of such series
of Preferred Stock.
(j) Notice of Record Date. In the event:
(i) the Corporation shall take a record of the holders of its Common Stock (or other stock or
securities at the time issuable upon conversion of the Preferred Stock) for the purpose of
entitling or enabling them to receive any dividend or other distribution, or to receive any right
to subscribe for or purchase any shares of stock of any class or any other securities, or to
receive any other right; or
(ii) of any capital reorganization of the Corporation, any reclassification of the Common
Stock of the Corporation, or any Deemed Liquidation Event; or
(iii) of the voluntary or involuntary dissolution, liquidation or winding-up of the
Corporation,
then, and in each such case, the Corporation will send or cause to be sent to the holders of the
Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend,
distribution or right, and the amount and character of such dividend, distribution or right, or
(ii) the effective date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or such other stock or securities
at the time issuable upon the conversion of the Preferred Stock) shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up, and the amount per share and character of such exchange
applicable to the Preferred Stock and the Common Stock. Such notice shall be sent at least 20 days
prior to the record date or effective date for the event specified in such notice. Any notice
required by the provisions hereof to be given to a holder of shares of Preferred Stock shall be
deemed sent to such holder if deposited in the United States mail, postage prepaid, and addressed
to such holder at his, her or its address appearing on the books of the Corporation.
5. Mandatory Conversion.
(a) Upon the earlier of (i) the closing of the sale of shares of Common Stock to the public at
a price (the “Price to Public”) of at least $4.075 per share (subject to appropriate adjustment for
stock splits, stock dividends, combinations and other similar recapitalizations
21
affecting such shares), in a firm-commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended, resulting in at
least $50 million of gross proceeds to the Corporation (a “Qualified IPO”) or (ii) a date specified
by vote or written consent of the holders of at least (A) 60% of the voting power of the then
outstanding shares of Preferred Stock; (B) a majority of the Series B Preferred Stock and (C) a
majority of the Series B-1 Preferred Stock, which date shall not be later than the close of
business on the last full day preceding the date fixed for the payment of grants distributed on a
Deemed Liquidation Event (the “Mandatory Conversion Date”); (A) subject to the last sentence of
this Subsection (a), all outstanding shares of Preferred Stock shall automatically be converted
into shares of Common Stock, at the then effective applicable rate of conversion specified in
Subsection 4(a) above, and (B) such shares may not be reissued by the Corporation as shares of such
series. Notwithstanding the above, in the event the Price to Public in a Qualified IPO is less
than $4.50 per share (subject to appropriate adjustment for stock splits, stock dividends,
combinations and other similar recapitalizations affecting such shares), then the then effective
Series B-1 Conversion Price shall automatically be decreased immediately prior to the conversion
pursuant to this Subsection 5(a) to a price equal to the Price to Public (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other similar recapitalizations
affecting such shares).
(b) All holders of record of shares of Preferred Stock shall be given written notice of the
Mandatory Conversion Date and the place designated for mandatory conversion of all such shares of
Preferred Stock pursuant to this Section 5. Such notice need not be given in advance of
the occurrence of the Mandatory Conversion Date. Such notice shall be sent by first class or
registered mail, postage prepaid, or given by electronic communication in compliance with the
provisions of the General Corporation Law, to each record holder of Preferred Stock. Upon receipt
of such notice, each holder of shares of Preferred Stock shall surrender his, her or its
certificate or certificates for all such shares to the Corporation at the place designated in such
notice, and shall thereafter receive certificates for the number of shares of Common Stock to which
such holder is entitled pursuant to this Section 5. On the Mandatory Conversion Date, all
outstanding shares of Preferred Stock shall be deemed to have been converted into shares of Common
Stock, which shall be deemed to be outstanding of record, and all rights with respect to the
Preferred Stock so converted, including the rights, if any, to receive notices and vote (other than
as a holder of Common Stock), will terminate, except only the rights of the holders thereof, upon
surrender of their certificate or certificates therefor, to receive certificates for the number of
shares of Common Stock into which such Preferred Stock has been converted. If so required by the
Corporation, certificates surrendered for conversion shall be endorsed or accompanied by written
instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by
the registered holder or by his, her or its attorney duly authorized in writing. As soon as
practicable after the Mandatory Conversion Date and the surrender of the certificate or
certificates for Preferred Stock, the Corporation shall cause to be issued and delivered to such
holder, or on his, her or its written order, a certificate or certificates for the number of full
shares of Common Stock issuable on such conversion in accordance with the provisions hereof and
cash as provided in Subsection 4(b) in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion.
(c) All certificates evidencing shares of Preferred Stock which are required to be surrendered
for conversion in accordance with the provisions hereof shall, from and after the
22
Mandatory Conversion Date, be deemed to have been retired and cancelled and the shares of
Preferred Stock represented thereby converted into Common Stock for all purposes, notwithstanding
the failure of the holder or holders thereof to surrender such certificates on or prior to such
date. Such converted Preferred Stock may not be reissued as shares of such series of Preferred
Stock, and the Corporation may thereafter take such appropriate action (without the need for
stockholder action) as may be necessary to reduce the authorized number of shares of Preferred
Stock accordingly.
5A. Special Mandatory Conversion.
(a) In the event that any holder of shares of Preferred Stock does not participate in a
Qualified Financing (as defined below) by purchasing in the aggregate, in such Qualified Financing
and within the time period specified by the Corporation (provided that the Corporation has given
such holder at least twenty (20) days written notice of the Qualified Financing and that such
holder’s failure to purchase as required by this Section 5A could result in conversion of such
holder’s shares of Preferred Stock into Common Stock pursuant to this Section 5A), such holder’s
Pro Rata Amount (as defined below), then each share of Preferred Stock held by such holder shall
automatically, and without any further action on the part of such holder, be converted into shares
of Common Stock at the applicable rate of conversion specified in Subsection 4(a) above
then in effect immediately prior to the consummation of such Qualified Financing (without giving
effect to any adjustment to such Conversion Price due to such Qualified Financing), effective upon,
subject to, and concurrently with, the consummation of the Qualified Financing. For purposes of
determining the number of shares of Preferred Stock owned by a holder, and for determining whether
a holder of Preferred Stock has purchased such holder’s Pro Rata Amount in a Qualified Financing,
all shares of Preferred Stock held by Affiliates of such holder shall be aggregated with such
holder’s shares and all Offered Securities purchased by Affiliates of such holder shall be
aggregated with the Offered Securities purchased by such holder (provided that no shares or
securities shall be attributed to more than one entity or person within any such group of
affiliated entities or persons). Upon such conversion (a “Special Mandatory Conversion”), any
shares of Preferred Stock so converted shall be cancelled and not subject to reissuance.
(b) Upon a Special Mandatory Conversion, each holder of shares of Preferred Stock converted
pursuant to Section 5A(a) shall surrender his, her or its certificate or certificates for
all such shares to the Corporation at the place designated in such notice, and shall thereafter
receive certificates for the number of shares of Common Stock to which such holder is entitled
pursuant to this Section 5A. All rights with respect to the Preferred Stock converted
pursuant to Section 5A(a), including the rights, if any, to receive notices and vote (other
than as a holder of Common Stock), will terminate, except only the rights of the holders thereof,
upon surrender of their certificate or certificates therefor, to receive certificates for the
number of shares of Common Stock into which such Preferred Stock has been converted. If so
required by the Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized
in writing. As soon as practicable after the Special Mandatory Conversion and the surrender of the
certificate or certificates for Preferred Stock so converted, the Corporation shall cause to be
issued and
23
delivered to such holder, or on his, her or its written order, a certificate or certificates
for the number of full shares of Common Stock issuable on such conversion in accordance with the
provisions hereof and, cash as provided in Subsection 4(b) in respect of any fraction of a
share of Common Stock otherwise issuable upon such conversion.
(c) All certificates evidencing shares of Preferred Stock which are required to be surrendered
for conversion in accordance with the provisions hereof shall, from and after the time of the
Special Mandatory Conversion, be deemed to have been retired and cancelled, and the shares of
Preferred Stock converted pursuant to Section 5A(a) represented thereby shall, from and
after the time of the Special Mandatory Conversion, be deemed to have been converted into Common
Stock for all purposes, notwithstanding the failure of the holder or holders thereof to surrender
such certificates on or prior to such date. The Corporation may thereafter take such appropriate
action (without the need for stockholder action) as may be necessary to reduce the authorized
number of shares of Preferred Stock accordingly.
(d) For purposes of this Section 5A, the following definitions shall apply:
(i) “Affiliate” shall mean, with respect to any holder of shares of Preferred Stock, any
person, entity or firm which, directly or indirectly, controls, is controlled by or is under common
control with such holder, including, without limitation, any entity of which the holder is a
partner or member, any partner, officer, director, member or employee of such holder and any
venture capital fund now or hereafter existing of which the holder is a partner or member which is
controlled by or under common control with one or more general partners of such holder or shares
the same management company with such holder.
(ii) “Offered Securities” shall mean the equity securities of the Corporation set aside by the
Board of Directors for purchase by holders of outstanding shares of Preferred Stock in connection
with a Qualified Financing, and offered to such holders.
(iii) “Pro Rata Amount” shall mean, with respect to any holder of Preferred Stock, the lesser
of (a) a number of Offered Securities calculated by multiplying the aggregate number of Offered
Securities by a fraction, the numerator of which is equal to the number of shares of Preferred
Stock owned by such holder, and the denominator of which is equal to the aggregate number of
outstanding shares of Preferred Stock, or (b) the maximum number of Offered Securities that such
holder is offered by the Corporation to purchase in such Qualified Financing, after giving effect
to any cutbacks or other limitations established by the Board of Directors and applied on a pro
rata basis to all holders of Preferred Stock.
(iv) “Qualified Financing” shall mean any transaction involving the issuance or sale of equity
securities of the Corporation after the Series B-1 Original Issue Date that (a) results in at least
an aggregate of $1,000,000 in gross proceeds to the Corporation; (b) would result in the reduction
of the Series B Conversion Price or the Series B-1 Conversion Price pursuant to the terms of this
Certificate of Incorporation (without giving effect to the operation of Section 4(d)(ii)(b)
hereof); and (c) follows a good faith effort by the Corporation to raise capital from parties who
are not investors in the Corporation prior to such transaction, and provided that the capital
raising effort shall include contacting at least five (5) venture capital firms not investors in
the Corporation prior to such transaction. Notwithstanding the foregoing,
24
the holders of 60% of the voting power of the Series B Preferred Stock and the Series B-1
Preferred Stock, acting together as a separate class, may elect, by written notice given to the
Corporation at least 20 days prior to the consummation of any transaction described in the
preceding sentence, to have such transaction not be deemed a “Qualified Financing” for purposes of
this Section 5A.
6. Redemption.
(a) Redemption Shares of Preferred Stock shall be redeemed by the Corporation out of funds lawfully available
therefor (x) in the case of the Series A Preferred Stock, at a price equal to the Series A Original
Issue Price per share, plus any Series A Accruing Dividends accrued but unpaid thereon, whether or
not declared, together with any other dividends declared but unpaid thereon (the “Series A
Redemption Price”), (y) in the case of the Series B Preferred Stock, at a price equal to the Series
B Original Issue Price per share, plus any Series B Accruing Dividends accrued but unpaid thereon,
whether or not declared, together with any other dividends declared but unpaid thereon (the “Series
B Redemption Price”), and (y) in the case of the Series B-1 Preferred Stock, at a price equal to
the Series B-1 Original Issue Price per share, plus any Series B-1 Accruing Dividends accrued but
unpaid thereon, whether or not declared, together with any other dividends declared but unpaid
thereon (the “Series B-1 Redemption Price”, and together with the Series A Redemption Price and the
Series B Redemption Price, the “Redemption Price”), in three (3) equal annual installments
commencing 60 days after receipt by the Corporation at any time on or after the fourth anniversary
of the Series B-1 Original Issue Date, from the holders of at least 60% of the voting power of the
then outstanding shares of Preferred Stock, of written notice requesting redemption of all shares
of Preferred Stock (the date of each such installment being referred to as a “Redemption Date”).
On each Redemption Date, the Corporation shall redeem, on a pro rata basis in accordance with the
number of shares of Series A Preferred Stock, Series B Preferred Stock and Series B-1 Preferred
Stock owned by each holder, that number of outstanding shares of Series A Preferred Stock, Series B
Preferred Stock and Series B-1 Preferred Stock determined by dividing (i) the total number of
shares of Series A Preferred Stock outstanding immediately prior to such Redemption Date, the total
number of shares of Series B Preferred Stock outstanding immediately prior to such Redemption Date
and the total number of shares of Series B-1 Preferred Stock outstanding immediately prior to such
Redemption Date by (ii) the number of remaining Redemption Dates (including the Redemption Date to
which such calculation applies). If the Corporation does not have sufficient funds legally
available to redeem on any Redemption Date all shares of Series A Preferred Stock, Series B
Preferred Stock and Series B-1 Preferred Stock and of any other class or series of stock to be
redeemed on such Redemption Date, the Corporation shall redeem a pro rata portion of each holder’s
redeemable shares of such stock out of funds legally available therefor, based on the respective
amounts which would otherwise be payable in respect of the shares to be redeemed (with the Series A
Preferred Stock, the Series B Preferred Stock and Series B-1 Preferred Stock being redeemed on a
pari passu basis) if the legally available funds were sufficient to redeem all such shares, and
shall redeem the remaining shares to have been redeemed as soon as practicable after the
Corporation has funds legally available therefor. Any amount due on a particular Redemption Date
that is not paid when due shall thereafter accrue interest at the rate of one percent (1%) per
month until paid in full.
25
(b) Redemption Notice. Written notice of the mandatory redemption (the “Redemption Notice”) shall be mailed,
postage prepaid, to each holder of record of Preferred Stock, at its post office address last shown
on the records of the Corporation, or given by electronic communication in compliance with the
provisions of the General Corporation Law, not less than 40 days prior to each Redemption Date.
Each Redemption Notice shall state:
(I)
the number of
shares of each series of Preferred Stock held by the
holder that the Corporation shall redeem on the
Redemption Date specified in the Redemption Notice;
(II)
the Redemption
Date and the Redemption Price;
(III)
the date upon
which the holder’s right to convert such shares
terminates (as determined in accordance with Section
4(a)); and
(IV)
that the holder
is to surrender to the Corporation, in the manner and at
the place designated, his, her or its certificate or
certificates representing the shares of Preferred Stock
to be redeemed.
(c) Surrender of Certificates; Payment. On or before the applicable Redemption Date,
each holder of shares of Preferred Stock to be redeemed on such Redemption Date, unless such holder
has exercised his, her or its right to convert such shares as provided in Section 4 hereof, shall
surrender the certificate or certificates representing such shares to the Corporation, in the
manner and at the place designated in the Redemption Notice, and thereupon the Redemption Price for
such shares shall be payable to the order of the person whose name appears on such certificate or
certificates as the owner thereof, and each surrendered certificate shall be canceled and retired.
In the event less than all of the shares of Preferred Stock represented by a certificate are
redeemed, a new certificate representing the unredeemed shares of Preferred Stock shall promptly be
issued to such holder.
(d) Rights Subsequent to Redemption. If the Redemption Notice shall have been duly
given, and if on the applicable Redemption Date the Redemption Price payable upon redemption of the
shares of Preferred Stock to be redeemed on such Redemption Date is paid or tendered for payment or
deposited with an independent payment agent so as to be available therefor, then notwithstanding
that the certificates evidencing any of the shares of Preferred Stock so called for redemption
shall not have been surrendered, dividends with respect to such shares of Preferred Stock shall
cease to accrue after such Redemption Date and all rights with respect to such shares shall
forthwith after the Redemption Date terminate, except only the right of the holders to receive the
Redemption Price without interest upon surrender of their certificate or certificates therefor.
(e) Redeemed or Otherwise Acquired Shares. Any shares of Preferred Stock which are
redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically
and immediately canceled and shall not be reissued, sold or transferred. Neither
26
the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to
the holders of Preferred Stock following redemption.
7. Waiver Except as expressly provided in subsection 3(d), any of the rights,
powers or preferences of the holders of Preferred Stock set forth herein may be defeased by the
affirmative consent or vote of the holders of at least 60% of the voting power of the shares of
Preferred Stock then outstanding; provided that no conversion of the Series B Preferred Stock and
Series B-1 Preferred Stock, together as a single class, pursuant to subsection 5(a) shall
be effective without the requisite consent of the holders of Series B Preferred Stock and Series
B-1 Preferred Stock, acting together as a separate class, as provided therein.
FIFTH: Subject to any additional vote required by this Fifth Amended and Restated Certificate
of Incorporation, in furtherance and not in limitation of the powers conferred by statute, the
Board of Directors is expressly authorized to make, repeal, alter, amend and rescind any or all of
the Bylaws of the Corporation.
SIXTH: Subject to any additional vote required by this Fifth Amended and Restated Certificate
of Incorporation, the number of directors of the Corporation shall be determined in the manner set
forth in the Bylaws of the Corporation.
SEVENTH: Elections of directors need not be by written ballot unless the Bylaws of the
Corporation shall so provide.
EIGHTH: Meetings of stockholders may be held within or without the State of Delaware, as the
Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State
of Delaware at such place or places as may be designated from time to time by the Board of
Directors or in the Bylaws of the Corporation.
NINTH: To the fullest extent permitted by law, 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. If the General Corporation Law or any other law of the State of
Delaware is amended after approval by the stockholders of this Article Ninth 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
General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Article Ninth 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, or increase the liability of any director of the
Corporation with respect to any acts or omissions of such director occurring prior to, such repeal
or modification.
TENTH: To the fullest extent permitted by applicable law, the Corporation shall provide
indemnification of (and advancement of expenses to) directors, officers and agents of the
Corporation (and any other persons to which General Corporation Law permits the Corporation to
provide indemnification) through Bylaw provisions, agreements with such agents or other persons,
vote of stockholders or disinterested directors or otherwise, in excess of the
27
indemnification and advancement otherwise permitted by Section 145 of the General Corporation
Law.
Any amendment, repeal or modification of the foregoing provisions of this Article Tenth shall
not adversely affect any right or protection of any director, officer or other agent of the
Corporation existing at the time of, or increase the liability of any director of the Corporation
with respect to any acts or omissions of such director, officer or other agent occurring prior to,
such amendment, repeal or modification.
ELEVENTH: Subject to any additional vote required by this Fifth Amended and Restated
Certificate of Incorporation, the Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Fifth Amended and Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein
are granted subject to this reservation.
TWELFTH: The Corporation renounces, to the fullest extent permitted under applicable law, any
interest or expectancy of the Corporation in, or in being offered an opportunity to participate in,
any Excluded Opportunity. An “Excluded Opportunity” is any matter, transaction or interest that is
presented to, or acquired, created or developed by, or which otherwise comes into the possession
of, (i) any director of the Corporation who is not an employee of the Corporation or any of its
subsidiaries, or (ii) any holder of Preferred Stock or any partner, member, director, stockholder,
employee or agent of any such holder, other than someone who is an employee of the Corporation or
any of its subsidiaries (collectively, “Covered Persons”), unless such matter, transaction or
interest is presented to, or acquired, created or developed by, or otherwise comes into the
possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a
director of the Corporation.
* * *
3) The foregoing amendment and restatement was approved by the holders of the requisite number
of shares of said corporation in accordance with Section 228 of the General Corporation Law.
4) That said Fifth Amended and Restated Certificate of Incorporation, which restates and
integrates and further amends the provisions of the Corporation’s Certificate of Incorporation, has
been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Fifth Amended and Restated Certificate of Incorporation has been
executed by a duly authorized officer of the Corporation on this 26th day of December, 2007.
