{"id":41593,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/certificate-of-incorporation-corio-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"certificate-of-incorporation-corio-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/certificate-of-incorporation-corio-inc.html","title":{"rendered":"Certificate of Incorporation &#8211; Corio Inc."},"content":{"rendered":"<pre>                                    RESTATED\n                          CERTIFICATE OF INCORPORATION\n                                 OF CORIO, INC.\n\n                             a Delaware corporation\n(originally incorporated on September 1, 1998 under the name 'Continuity, Inc.')\n\n        This Restated Certificate of Incorporation has been duly adopted by the\nCorporation's Board of Directors and Stockholders in accordance with the\napplicable provisions of Sections 228, 242 and 245 of the General Corporation\nLaw of the State of Delaware.\n\n                                    ARTICLE I\n\n        The name of this Corporation is Corio, Inc.\n\n                                   ARTICLE II\n\n        The address of the registered office of the Corporation in the State of\nDelaware is Corporation Trust Center, 1209 Orange Street, in the City of\nWilmington, County of New Castle, Delaware 19081. The name of its registered\nagent at such address is The Corporation Trust Company.\n\n                                   ARTICLE III\n\n        The nature of the business or purposes to be conducted or promoted is to\nengage in any lawful act or activity for which corporations may be organized\nunder the General Corporation Law of Delaware.\n\n                                   ARTICLE IV\n\n        A. Classes of Stock. This Corporation is authorized to issue two classes\nof stock, to be designated, respectively, 'Common Stock' and 'Preferred Stock.'\nThe total number of shares which the Corporation is authorized to issue is One\nHundred Eighty-Two Million One Hundred Twenty-Seven Thousand (182,127,000)\nshares. One Hundred Thirty-Eight Million (138,000,000) shares shall be Common\nStock, par value $0.001 per share, and Forty-Four Million One Hundred\nTwenty-Seven Thousand (44,127,000) shares shall be Preferred Stock, par value\n$0.001 per share, of which Fourteen Million One Hundred Twenty-Seven Thousand\n(14,127,000) shares shall be designated 'Series A Preferred', Eleven Million\n(11,000,000) shares shall be designated 'Series B Preferred', Eight Million\n(8,000,000) shares shall be designated 'Series C Preferred', Five Million Five\nHundred Thousand (5,500,000) shares shall be designated 'Series D Preferred' and\nFive Million Five Hundred Thousand (5,500,000) shares shall be designated\n'Senior Series E Preferred'.\n\n        B. Rights, Preferences, Privileges and Restrictions of Preferred Stock.\nThe rights, preferences, privileges and restrictions granted to and imposed on\nthe Series A Preferred, Series B Preferred, Series C Preferred and Series D\nPreferred (collectively, the 'Junior Preferred') and the Senior Series E\nPreferred (the 'Senior Preferred') are as set forth below in this Article IV(B).\n\n            1. Senior Preferred Dividend Provisions. The holders of shares of\nSenior Preferred shall be entitled to receive dividends, out of any assets\nlegally available therefor, prior and in preference to any declaration or\npayment of any dividend (payable other than in Common Stock or other securities\nand rights convertible into or entitling the holder thereof to receive, directly\nor indirectly, additional shares of this\n\n\n\nCorporation) on the Junior Preferred or Common Stock of this Corporation, at the\nrate of $0.50 per share per annum for each share of Senior Preferred held by\nthem (as adjusted for any stock splits, dividends, subdivisions, combinations,\nrecapitalizations and the like hereafter with respect to such shares). Such\ndividends shall be noncumulative. No dividend shall be paid on shares of Junior\nPreferred, Common Stock or other securities of this Corporation having dividend\nrights junior to the Senior Preferred unless (i) all unpaid dividends on the\nSenior Preferred shall have been paid (or declared and set aside for payment in\nfull) and (ii) with respect to dividends paid (or declared and set aside for\npayment) on Junior Preferred or Common Stock in any fiscal year, the Senior\nPreferred shall have been paid (or the amount declared and set aside for\npayment) in such year aggregate dividends in not less than an equivalent amount\nper share (as adjusted for any stock splits, dividends, subdivisions,\ncombinations, recapitalizations and the like hereafter with respect to such\nshares).\n\n            2. Junior Preferred Dividend Provisions. After payment or the\ndeclaration and setting aside for payment in full of the dividend preference of\nthe Senior Preferred, the holders of shares of Junior Preferred shall be\nentitled to receive dividends, out of any assets legally available therefor,\nprior and in preference to any declaration or payment of any dividend (payable\nother than in Common Stock or other securities and rights convertible into or\nentitling the holder thereof to receive, directly or indirectly, additional\nshares of this Corporation) on the Common Stock of this Corporation, at the rate\nof (w) $0.0235295 per share per annum for each share of Series A Preferred held\nby them, (x) $0.10 per share per annum for each share of Series B Preferred held\nby them, and (y) $0.3250 per share per annum for each share of Series C\nPreferred held by them and (z) an amount per share per annum for each share of\nSeries D Preferred held by them equal to the product of 0.05 times the Original\nSeries D Issue Price (as defined below) (in each case as adjusted for any stock\nsplits, dividends, subdivisions, combinations, recapitalizations and the like\nhereafter with respect to such shares). Such dividends shall not be cumulative\nand shall be paid only when and if declared by the Board of Directors of the\nCorporation. If any dividends are paid on shares of any series of Junior\nPreferred, dividends shall be paid on shares of all series of Junior Preferred\non a pro rata basis based on the foregoing dividend rates. No dividend shall be\npaid on shares of Common Stock or other securities of this Corporation having\ndividend rights junior to the Junior Preferred Stock in any fiscal year unless\n(i) the aforementioned preferential dividends of the Junior Preferred shall have\nbeen paid in full and (ii) the holders of Junior Preferred participate in such\ndividend on the Common Stock or other securities of this Corporation having\ndividend rights junior to the Junior Preferred on a pro rata basis in proportion\nto the number of shares of Common Stock held of record by each such holder of\nJunior Preferred (assuming the conversion of all Preferred into Common Stock).\n\n            3. Liquidation Preference. In the event of any liquidation,\ndissolution or winding up of this Corporation, either voluntary or involuntary,\nthe holders of outstanding capital stock of the Corporation shall be entitled to\nreceive the following:\n\n               a. Senior Preferred Stock. Each holder of Senior Preferred shall\nbe entitled to receive, prior and in preference to any distribution of any of\nthe assets of this Corporation to the holders of Junior Preferred or Common\nStock by reason of their ownership thereof, (x) the amount of $10.00 (the\n'Original Senior Preferred Issue Price') for each share of Senior Preferred held\nof record by such holder (as adjusted for any stock splits, dividends,\nsubdivisions, combinations, recapitalizations and the like hereafter with\nrespect to such shares) plus (y) all declared and unpaid dividends on each such\nshare, provided, however, that if the liquidation, dissolution or winding-up of\nthe Corporation is occasioned by a Change in Control, each holder of Senior\nPreferred shall be entitled to receive, prior and in preference to any\ndistribution of any of the assets of this Corporation to the holders of Junior\nPreferred or Common Stock by reason of their ownership thereof, the amount of\n$20.00 for each share of Senior Preferred held of record by such holder (as\nadjusted for any stock splits, dividends, subdivisions, combinations,\nrecapitalizations and the like hereafter with respect to such shares) plus all\ndeclared and unpaid dividends on each such share. If upon the\n\n\n                                      -2-\n\n\noccurrence of any such liquidation, dissolution or winding-up, the assets and\nfunds of the Corporation legally available for distribution among the holders of\nSenior Preferred shall be insufficient to permit the payment to such holders of\nthe full aforesaid preferential amounts (the 'Senior Preferential Amount'), then\nthe entire assets and funds of the Corporation legally available for\ndistribution shall be distributed ratably among the holders of the Senior\nPreferred in proportion to the full preferential amount each such holder is\notherwise entitled to receive under this subsection (a).\n\n               b. Junior Preferred Stock. After payment in full of the Senior\nPreferential Amount, pursuant to Section 3(a), each holder of Junior Preferred\nStock shall be entitled to receive, prior and in preference to any distribution\nof any of the assets of this Corporation to the holders of Common Stock by\nreason of their ownership thereof, (i) an amount equal to the sum of (x)\n$0.47059 (the 'Original Series A Issue Price') for each share of Series A\nPreferred held of record by such holder (as adjusted for any stock splits,\ndividends, subdivisions, combinations, recapitalizations and the like hereafter\nwith respect to such shares) and (y) all declared but unpaid dividends on such\nshares, (ii) an amount equal to the sum of (x) $2.00 (the 'Original Series B\nIssue Price') for each share of Series B Preferred held of record by such holder\n(as adjusted for any stock splits, dividends, subdivisions, combinations,\nrecapitalizations and the like hereafter with respect to such shares) and (y)\nall declared but unpaid dividends on such shares, (iii) an amount equal to the\nsum of (x) $6.50 (the 'Original Series C Issue Price') for each share of Series\nC Preferred held of record by such holder (as adjusted for any stock splits,\ndividends, subdivisions, combinations, recapitalizations and the like hereafter\nwith respect to such shares) and (y) all declared and unpaid dividends on such\nshares and (iv) an amount equal to the sum of (x) the deemed price at which the\nSeries D Preferred is originally issued upon the conversion of Senior Preferred\npursuant to Section 5(d)(iii) below (the 'Original Series D Issue Price') for\neach share of Series D Preferred held of record by such holder (as adjusted for\nany stock splits, dividends, subdivisions, combinations, recapitalizations and\nthe like hereafter with respect to such shares) and (y) all declared and unpaid\ndividends on such shares. If upon the occurrence of such event, and after\npayment in full of the Senior Preferential Amount, the assets and funds of the\nCorporation legally available for distribution among the holders of Junior\nPreferred Stock, are insufficient to permit the payment to such holders of the\nfull aforesaid preferential amounts (collectively, the 'Junior Preferential\nAmount'), then the entire assets and funds of the Corporation legally available\nfor distribution shall be distributed ratably among the holders of the Junior\nPreferred in proportion to the full preferential amount each such holder is\notherwise entitled to receive under this subsection (b).\n\n               c. Common Stock. Following such time as payment has been made to\nthe holders of Senior Preferred and Junior Preferred of the full amounts to\nwhich they are entitled pursuant to Section 3(a) and Section 3(b), respectively,\nabove, then the entire remaining assets and funds of the Corporation legally\navailable for distribution, if any, shall be distributed ratably among the\nholders of Common Stock in a manner such that the amount distributed to each\nholder of Common Stock shall equal the amount obtained by multiplying the entire\nremaining assets and funds of the Corporation legally available for distribution\nhereunder by a fraction, (x) the numerator of which shall be the number of\nshares of Common Stock then held by such holder, and (y) the denominator of\nwhich shall be the total number of shares of Common Stock then outstanding.\n\n               d. Definition of Liquidation Event; Notice.\n\n                    (i) For purposes of this Section 3, a liquidation,\ndissolution or winding up of this Corporation shall be deemed to include and to\nbe occasioned by any 'Change in Control.' A 'Change in Control' shall herein be\ndeemed to include (A) the acquisition of the Corporation by another entity by\nmeans of any transaction or series of related transactions (including without\nlimitation any reorganization, merger or consolidation) and (B) a sale or\ntransfer of all or substantially all of the assets of the Corporation, including\na sale or transfer of intellectual property rights which, in the aggregate,\nconstitute\n\n\n                                      -3-\n\n\nsubstantially all of the Corporation's material assets; unless in any case under\n(A) or (B), the Corporation's stockholders of record as constituted immediately\nprior to such acquisition or sale will, immediately after such acquisition or\nsale (by virtue of securities issued as consideration for the Corporation's\nacquisition or sale or transfer or otherwise and excluding shares held in the\nacquiring entity by the Corporation's stockholders of record prior to such\nacquisition or sale) hold at least fifty percent (50%) of the voting power of\nthe surviving or acquiring entity; provided, however, that a Change in Control\nshall be deemed to exclude the Corporation's sale of its Common Stock in a firm\ncommitment underwritten public offering pursuant to a Registration Statement on\nForm S-1 under the Securities Act.\n\n                    (ii) In any of such events, if the consideration received by\nthe Corporation or its shareholders is other than cash, its value will be deemed\nits fair market value. Any securities shall be valued as follows:\n\n                         (A) Securities not subject to investment letter or\nother similar restrictions on free marketability shall be valued as follows: (1)\nif traded on a securities exchange or through The Nasdaq National Market, the\nvalue shall be deemed to be the average of the closing prices of the securities\non such exchange over the thirty (30) day period ending three (3) days prior to\nthe closing; (2) if actively traded over-the-counter, the value shall be deemed\nto be the average of the closing bid or sale prices (whichever is applicable)\nover the thirty (30) day period ending three (3) days prior to the closing; and\n(3) if there is no active public market, the value shall be the fair market\nvalue thereof, as determined in good faith by a majority of the Board of\nDirectors of the Corporation.\n\n                         (B) Securities subject to investment letter or other\nrestrictions on free marketability (other than restrictions arising solely by\nvirtue of a stockholder's status as an affiliate or former affiliate) shall be\nvalued in such a manner as to make an appropriate discount from the market value\ndetermined as above in (A) (1), (2) or (3) to reflect the approximate fair\nmarket value thereof, as determined in good faith by a majority of the Board of\nDirectors of the Corporation.\n\n                    (iii) The Corporation shall give each holder of record of\nPreferred Stock written notice of any such impending transaction not later than\nfifteen (15) days prior to the stockholder meeting called to approve such\ntransaction, or twenty (20) days prior to the closing of such transaction\nwhichever notice date is earlier, and shall also notify such holders in writing\nof the final approval of such transaction. The first of such notices shall\ndescribe the material terms and conditions of the impending transaction, the\nprovisions of this Section 3, and the amounts anticipated to be distributed to\nholders of each outstanding class of capital stock of the Corporation pursuant\nto this Section 3, and the Corporation shall thereafter give such holders prompt\nnotice of any material changes. The transaction shall in no event take place\nsooner than twenty (20) days after the Corporation has given the first notice\nprovided for herein or sooner than ten (10) days after the Corporation has given\nnotice of any material changes provided for herein.\n\n                    (iv) In the event the requirements of Section 3(d) are not\ncomplied with, this Corporation shall forthwith either:\n\n                         (A) cause such closing to be postponed until such time\nas the requirements of Section 3(d) have been complied with; or\n\n                         (B) cancel such transaction, in which event the rights,\npreferences and privileges of the holders of the Preferred shall revert to and\nbe the same as such rights, preferences and privileges existing immediately\nprior to the date of the first notice referred to in Section 3(d)(iii).\n\n                                      -4-\n\n\n            4. Conversion of Junior Preferred. The holders of Junior Preferred\nshall have conversion rights as follows (the 'Junior Conversion Rights'):\n\n               a. Right to Convert. Each share of Junior Preferred shall be\nconvertible, at the option of the holder thereof, at any time after the date of\nissuance of such share at the office of this Corporation or any transfer agent\nfor such stock, into such number of fully paid and nonassessable shares of\nCommon Stock as is determined (i) in the case of the Series A Preferred, by\ndividing the Original Series A Issue Price in respect of such share by the\nSeries A Conversion Price applicable to such share, determined as hereafter\nprovided, in effect on the date the certificate is surrendered for conversion,\n(ii) in the case of the Series B Preferred, by dividing the Original Series B\nIssue Price in respect of such share by the Series B Conversion Price applicable\nto such share, determined as hereafter provided, in effect on the date the\ncertificate is surrendered for conversion, (iii) in the case of the Series C\nPreferred, by dividing the Original Series C Issue Price in respect of such\nshare by the Series C Conversion Price applicable to such share, determined as\nhereafter provided, in effect on the date the certificate is surrendered for\nconversion and (iv) in the case of the Series D Preferred, by dividing the\nOriginal Series D Issue Price in respect of such share by the Series D\nConversion Price applicable to such share, determined as hereafter provided, in\neffect on the date the certificate is surrendered for conversion. The initial\nSeries A Conversion Price per share shall be the Original Series A Issue Price;\nthe initial Series B Conversion Price per share shall be the Original Series B\nIssue Price; the initial Series C Conversion Price per share shall be the\nOriginal Series C Issue Price; and the initial Series D Conversion Price shall\nbe the Original Series D Issue Price; provided, however, that each such\nConversion Price shall be subject to adjustment as set forth below (the Series A\nConversion Price, the Series B Conversion Price, the Series C Conversion Price\nand the Series D Conversion Price are individually or collectively referred to\nherein as the 'Conversion Price').\n\n               b. Automatic Conversion. Each share of Junior Preferred shall\nautomatically be converted into shares of Common Stock at the Conversion Price\nat the time in effect for such share of Junior Preferred immediately upon the\nearlier of (i) the Corporation's sale of its Common Stock in a firm commitment\nunderwritten public offering pursuant to a Registration Statement on Form S-1\nunder the Securities Act of 1933, as amended, at a price per share not less than\n$6.50, in which the gross proceeds to the Corporation is equal to or in excess\nof thirty-three million dollars ($33,000,000) (a 'Qualified IPO'), or (ii) the\ndate specified by (A) written consent or agreement of the holders of (w) at\nleast a majority of the holders of the then outstanding shares of Series A\nPreferred, (x) at least a majority of the holders of the then outstanding shares\nof Series B Preferred, (y) at least a majority of the then outstanding shares of\nSeries C Preferred and (z) at least a majority of the then outstanding shares of\nSeries D Preferred.\n\n               c. Mechanics of Conversion. Before any holder of Junior Preferred\nshall be entitled to convert the same into shares of Common Stock, such holder\nshall surrender the certificate or certificates therefor, duly endorsed, at the\noffice of this Corporation or of any transfer agent for the Junior Preferred,\nand shall give written notice to this Corporation at its principal corporate\noffice, of the election to convert the same and shall state therein the name or\nnames in which the certificate or certificates for shares of Common Stock are to\nbe issued. This Corporation shall, as soon as practicable thereafter, issue and\ndeliver at such office to such holder of Junior Preferred, or to the nominee or\nnominees of such holder, a certificate or certificates for the number of shares\nof Common Stock to which such holder shall be entitled as aforesaid. Such\nconversion shall be deemed to have been made immediately prior to the close of\nbusiness on the date of such surrender of the shares of Junior Preferred to be\nconverted, and the person or persons entitled to receive the shares of Common\nStock issuable upon such conversion shall be treated for all purposes as the\nrecord holder or holders of such shares of Common Stock as of such date. If the\nconversion is in connection with an underwritten offering of securities\nregistered pursuant to the Securities Act, the conversion, unless otherwise\ndesignated by the holder, will be conditioned upon the closing with the\nunderwriters of the sale of securities pursuant to such offering, in which event\nthe person(s) entitled to receive the Common Stock upon conversion\n\n\n\n                                      -5-\n\n\nof the Junior Preferred shall not be deemed to have converted such Junior\nPreferred until immediately prior to the closing of such sale of securities.\n\n               d. Conversion Price Adjustments of Junior Preferred for Certain\nSplits, Dividends and Combinations. Except as otherwise provided in this Section\n4, the Conversion Price of each series of Junior Preferred shall be subject to\nadjustment from time to time as follows:\n\n                    (i)In the event the Corporation should at any time or from\ntime to time after the Original Issue Date (as defined below) fix a record date\nfor the effectuation of a split or subdivision of the outstanding shares of\nCommon Stock or for the determination of the holders of outstanding shares of\nCommon Stock entitled to receive a dividend or other distribution payable in\nadditional shares of Common Stock without payment of any consideration by such\nholder for the additional shares of Common Stock then, as of such record date\n(or the date of such dividend, distribution, split or subdivision if no record\ndate is fixed), the Conversion Price of each series of Junior Preferred shall be\nappropriately decreased so that the number of shares of Common Stock issuable on\nconversion of each share of such series shall be increased in proportion to such\nincrease of the aggregate of shares of Common Stock outstanding.\n\n                    (ii) If the number of shares of Common Stock outstanding at\nany time after the Original Issue Date is decreased by a combination of the\noutstanding shares of Common Stock or reverse stock split, then, following the\nrecord date of such combination or reverse stock split, the Conversion Price of\neach series of Junior Preferred shall be appropriately increased so that the\nnumber of shares of Common Stock issuable on conversion of each share of such\nseries shall be decreased in proportion to such decrease in outstanding shares.\n\n               e. Other Distributions. In the event the Corporation shall at any\ntime after the Original Issue Date declare a distribution payable in securities\nof other persons, evidences of indebtedness issued by this Corporation or other\npersons, assets (excluding cash dividends) or options or rights not referred to\nin Section 1 or Section 4(d)(i), then, in each such case for the purpose of this\nsubsection 4(e), the holders of Junior Preferred shall be entitled to a\nproportionate share of any such distribution as though they were the holders of\nthe number of shares of Common Stock of the Corporation into which their shares\nof Junior Preferred are convertible as of the record date fixed for the\ndetermination of the holders of Common Stock of the Corporation entitled to\nreceive such distribution.\n\n               f. Recapitalizations. If at any time or from time to time after\nthe Original Issue Date there shall be a recapitalization of the Common Stock\n(other than a subdivision, combination or merger or sale or transfer of assets\ntransaction provided for elsewhere in this Section 4 or Section 3), provision\nshall be made so that the holders of the Junior Preferred shall thereafter be\nentitled to receive upon conversion of the Junior Preferred the number of shares\nof stock or other securities or property of the Corporation or otherwise, which\na holder of Common Stock deliverable upon conversion immediately prior to such\nrecapitalization would have been entitled to receive on such recapitalization.\nIn any such case, appropriate adjustment shall be made in the application of the\nprovisions of this Section 4 with respect to the rights of the holders of the\nJunior Preferred after the recapitalization to the extent that the provisions of\nthis Section 4 (including adjustment of the Conversion Price then in effect and\nthe number of shares purchasable upon conversion of the Junior Preferred) shall\nbe applicable after that event as nearly equivalently as may be practicable.\n\n               g. Adjustments to Junior Preferred Conversion Price for Dilutive\nIssues.\n\n                    (i)Special Definitions. For purposes of this Section 4(g),\nthe following definitions shall apply:\n\n\n                                      -6-\n\n\n                         (A) 'Additional Shares of Common' shall mean all shares\nof Common Stock issued (or, pursuant to Section 4(g)(iii), deemed to be issued)\nby the Corporation after the Original Issue Date (defined below), other than\nshares of Common Stock issued, issuable or, pursuant to Section 4(g)(iii)\nherein, deemed to be issued:\n\n                              (1) upon conversion of shares of the Junior\nPreferred or the Senior Preferred;\n\n                              (2) to officers, directors or employees of, or\nconsultants and advisors to, the Corporation pursuant to a stock grant, option\nplan or purchase plan or other stock incentive program or arrangement approved\nby the Board of Directors for employees, officers, directors or consultants or\nadvisors of the Corporation;\n\n                              (3) as a dividend or distribution on the Junior\nPreferred;\n\n                              (4) in connection with any transaction for which\nadjustment is made pursuant to Section 4(d)(i), 4(d)(ii), 4(e) or 4(f) hereof;\n\n                              (5) to financial institutions or lessors in\nconnection with bona fide, arm's length commercial credit arrangements, debt\nfinancings, equipment lease financings or similar transactions, provided such\nfinancings are approved by the Board and are for other than primarily equity\nfinancing purposes;\n\n                              (6) in connection with an underwritten initial\npublic offering; or\n\n                              (7) in connection with a bona fide, arm's length\nacquisition by the Corporation, whether by merger, consolidation or purchase of\nassets, that results in the transfer of less than 25% of the voting power of the\nCorporation.\n\n                         (B) 'Convertible Securities' shall mean stock or other\nsecurities convertible into or exchangeable for Common Stock.\n\n                         (C) 'Options' shall mean rights, options or warrants to\nsubscribe for, purchase or otherwise acquire either Common Stock or Convertible\nSecurities.\n\n                         (D) 'Original Issue Date' shall mean (i) in the case of\neach series of Preferred Stock other than Series D Preferred, the date on which\nthe first share of Senior Preferred was issued, and (ii) in the case of the\nSeries D Preferred, the date on which the first share of Series D Preferred is\nissued.\n\n                    (ii) No Adjustment of Conversion Prices. No adjustment in\nthe applicable Conversion Price of any particular series of Junior Preferred\nshall be made in respect of the issuance of Additional Shares of Common unless\nthe consideration per share for an Additional Share of Common issued or deemed\nto be issued by the Corporation is less than the applicable Conversion Price in\neffect on the date of, and immediately prior to, such issue.\n\n                    (iii) Options and Convertible Securities. In the event that\nthe Corporation at any time or from time to time after the Original Issue Date\nshall issue any Options or Convertible Securities or shall fix a record date for\nthe determination of holders of any class of securities entitled to receive any\nsuch\n\n\n                                      -7-\n\n\nOptions or Convertible Securities, then the maximum number of shares of Common\nStock issuable upon the exercise of such Options or, in the case of Convertible\nSecurities and Options therefor, the conversion or exchange of such Convertible\nSecurities, shall be deemed to be Additional Shares of Common issued as of the\ntime of such issue or, in case such a record date shall have been fixed, as of\nthe close of business on such record date; provided, however, that Additional\nShares of Common shall not be deemed to have been issued unless the\nconsideration per share (determined pursuant to Section 4(g)(v) hereof) of such\nAdditional Shares of Common would be less than the applicable Conversion Price\nin effect on the date of and immediately prior to such issue, or such record\ndate, as the case may be, and provided further that in any such case in which\nAdditional Shares of Common are deemed to be issued:\n\n                         (A) no further adjustment in the applicable Conversion\nPrice shall be made upon the subsequent issue of shares of Common Stock or\nConvertible Securities upon either the exercise of such Options or the\nconversion or exchange of such Convertible Securities, in each case, pursuant to\ntheir respective terms;\n\n                         (B) if such Options or Convertible Securities by their\nterms provide, with the passage of time or otherwise, for any increase in the\nconsideration payable to the Corporation, or decrease in the number of shares of\nCommon Stock issuable, upon the exercise, conversion or exchange thereof, the\napplicable Conversion Price computed upon the original issue thereof (or upon\nthe occurrence of a record date with respect thereto), and any subsequent\nadjustments based thereon, shall, upon any such increase or decrease becoming\neffective, be recomputed to reflect such increase or decrease insofar as it\naffects such Options or the rights of conversion or exchange under such\nConvertible Securities;\n\n                         (C) upon the expiration of any such Options or any\nrights of conversion or exchange under such Convertible Securities which shall\nnot have been exercised, the applicable Conversion Price computed upon the\noriginal issue thereof (or upon the occurrence of a record date with respect\nthereto), and any subsequent adjustments based thereon, shall, upon such\nexpiration, be recomputed as if:\n\n                              (1) in the case of Convertible Securities or\nOptions for Common Stock, the only Additional Shares of Common issued were the\nshares of Common Stock, if any, actually issued upon the exercise of such\nOptions or the conversion or exchange of such Convertible Securities and the\nconsideration received therefor was the consideration actually received by the\nCorporation for the issue of all such Options, whether or not exercised, plus\nthe consideration actually received by the Corporation upon such exercise, or\nfor the issue of all such Convertible Securities which were actually converted\nor exchanged, plus the additional consideration, if any, actually received by\nthe Corporation upon such conversion or exchange, and\n\n                              (2) in the case of Options for Convertible\nSecurities, only the Convertible Securities, if any, actually issued upon the\nexercise thereof were issued at the time of issue of such Options, and the\nconsideration received by the Corporation for the Additional Shares of Common\ndeemed to have been then issued was the consideration actually received by the\nCorporation for the issue of all such Options, whether or not exercised, plus\nthe consideration deemed to have been received by the Corporation upon the issue\nof the Convertible Securities with respect to which such Options were actually\nexercised;\n\n                         (D) no readjustment pursuant to clauses (C)(1) or\n(C)(2) above shall have the effect of increasing the applicable Conversion Price\nto an amount which exceeds the lower of (i) the applicable Conversion Price on\nthe original adjustment date or (ii) the applicable Conversion Price that\n\n\n\n                                      -8-\n\n\nwould have resulted from other issuances of Additional Shares of Common between\nthe Original Issue Date and such readjustment date;\n\n                         (E) in the case of an Option which expires by its terms\nnot more than thirty (30) days after the date of issue thereof, no adjustment of\nthe applicable Conversion Price shall be made until the expiration or exercise\nof such Option, whereupon such adjustment shall be made in the same manner\nprovided in clause (iii) above.\n\n                    (iv) Adjustment of Conversion Price of Junior Preferred Upon\nIssuance of Additional Shares of Common. In the event that at any time after the\nOriginal Issue Date this Corporation shall issue Additional Shares of Common\n(including Additional Shares of Common deemed to be issued pursuant to Section\n4(g)(iii)) without consideration or for a consideration per share less than the\nConversion Price of a particular series of Junior Preferred in effect on the\ndate of and immediately prior to such issue, then and in such event such\nConversion Price shall be reduced, concurrently with such issue, to a price\ndetermined by multiplying such Conversion Price theretofore in effect by a\nfraction, the numerator of which shall be the number of shares of Common Stock\noutstanding immediately prior to such issue plus the number of shares of Common\nStock which the aggregate consideration received by the Corporation for the\ntotal number of Additional Shares of Common so issued would purchase at such\nConversion Price in effect immediately prior to such issue, and the denominator\nof which shall be the number of shares of Common Stock outstanding immediately\nprior to such issue plus the number of such Additional Shares of Common so\nissued; provided however, that, for the purposes of this Section 4(g)(iv), all\nshares of Common Stock issuable upon exercise, conversion or exchange of\noutstanding Options or Convertible Securities, as the case may be, shall be\ndeemed to be outstanding, and immediately after any Additional Shares of Common\nare deemed issued pursuant to Section 4(g)(iii), such Additional Shares of\nCommon shall be deemed to be outstanding. No adjustment of the Conversion Price\nfor the Junior Preferred shall be made in an amount less than one cent per\nshare, provided that any adjustments that are not required to be made by reason\nof this sentence shall be carried forward and shall be either taken into account\nin any subsequent adjustment made prior to three (3) years from the date of the\nevent giving rise to the adjustment being carried forward, or shall be made at\nthe end of three (3) years from the date of the event giving rise to the\nadjustment being carried forward.\n\n                    (v)Determination of Consideration. For purposes of this\nSection 4(g), the consideration received by the Corporation for the issue of any\nAdditional Shares of Common shall be computed as follows:\n\n                         (A) Cash and Property. Such consideration shall:\n\n                              (1) insofar as it consists of cash, be computed at\nthe aggregate amount of cash received by the Corporation excluding amounts paid\nor payable for accrued interest or accrued dividends;\n\n                              (2) insofar as it consists of property other than\ncash, be computed at the fair market value thereof at the time of such issue, as\ndetermined in good faith by a majority of the Board of Directors; and\n\n                              (3) in the event Additional Shares of Common are\nissued together with other shares or securities or other assets of the\nCorporation for consideration which covers both, be the proportion of such\nconsideration so received, computed as provided in clauses (1) and (2) above, as\ndetermined in good faith by a majority of the Board of Directors.\n\n\n                                      -9-\n\n\n                         (B) Options and Convertible Securities. The\nconsideration per share received by the Corporation for Additional Shares of\nCommon deemed to have been issued pursuant to Section 4(g)(iii), relating to\nOptions and Convertible Securities, shall be determined by dividing:\n\n                              (1) the total amount, if any, received or\nreceivable by the Corporation as consideration for the issue of such Options or\nConvertible Securities, plus the minimum aggregate amount of additional\nconsideration payable to the Corporation upon the exercise of such Options or\nthe conversion or exchange of such Convertible Securities, or in the case of\nOptions for Convertible Securities, the exercise of such Options for Convertible\nSecurities and the conversion or exchange of such Convertible Securities, by\n\n                              (2) the maximum number of shares of Common Stock\nissuable upon the exercise of such Options or the conversion or exchange of such\nConvertible Securities, or exercise and conversion or exchange of such Options\nfor Convertible Securities, as determined in Section 4(g)(iii) hereof.\n\n               h. No Impairment. The Corporation will not, by amendment of its\nCertificate of Incorporation or through any reorganization, recapitalization,\nsale or transfer of assets, consolidation, merger, dissolution, issue or sale of\nsecurities or any other voluntary action, avoid or seek to avoid the observance\nor performance of any of the terms to be observed or performed hereunder by the\nCorporation, but will at all times in good faith assist in the carrying out of\nall the provisions of this Section 4 and in the taking of all such action as may\nbe necessary or appropriate in order to protect the Junior Conversion Rights of\nthe holders of the Junior Preferred against impairment.\n\n               i. No Fractional Shares; Certificate as to Adjustment.\n\n                    (i) No fractional shares shall be issued upon the conversion\nof any share or shares of the Junior Preferred, and the number of shares of\nCommon Stock to be issued shall be rounded to the nearest whole share. Such\nrounding shall be determined on the basis of the total number of shares of\nJunior Preferred the holder is at the time converting into Common Stock and the\nnumber of shares of Common Stock issuable upon such aggregate conversion.\n\n                    (ii) Upon the occurrence of each adjustment or readjustment\nof the applicable Conversion Price of Preferred pursuant to this Section 4, the\nCorporation, at its expense, shall promptly compute such adjustment or\nreadjustment in accordance with the terms hereof and prepare and furnish to each\nholder of Junior Preferred a certificate executed by the Corporation's President\nor Chief Financial Officer setting forth such adjustment or readjustment and\nshowing in detail the facts upon which such adjustment or readjustment is based.\nThe Corporation shall, upon the reasonable written request at any time of any\nholder of Junior Preferred, furnish or cause to be furnished to such holder a\nlike certificate setting forth (A) such adjustment and readjustment, (B) the\napplicable Conversion Price for the Junior Preferred at the time in effect, and\n(C) the number of shares of Common Stock and the amount, if any, of other\nproperty which at the time would be received upon the conversion of a share of\nJunior Preferred held by such holder.\n\n               j. Notices of Record Date. In the event of any taking by the\nCorporation of a record date for determining the holders of any class of\nsecurities who are entitled to receive any dividend (other than a cash dividend)\nor other distribution, any right to subscribe for, purchase or otherwise acquire\nany shares of stock of any class or any other securities or property, or to\nreceive any other right, this Corporation shall mail to each holder of Junior\nPreferred, at least fifteen (15) days prior to the record date specified\ntherein, a notice specifying the record date for the purpose of such dividend,\ndistribution or right, and the amount and character of such dividend,\ndistribution or right.\n\n\n                                      -10-\n\n\n               k. Reservation of Stock Issuable Upon Conversion. This\nCorporation shall at all times reserve and keep available out of its authorized\nbut unissued shares of Common Stock, solely for the purpose of effecting the\nconversion of the then outstanding shares of the Junior Preferred, such number\nof its shares of Common Stock as shall from time to time be sufficient to effect\nthe conversion of all outstanding shares of the Junior Preferred; and if at any\ntime the number of authorized but unissued shares of Common Stock shall not be\nsufficient to effect the conversion of all then outstanding shares of the Junior\nPreferred, in addition to such other remedies as shall be available to the\nholder of such Junior Preferred, the Corporation will take such corporate action\nas may, in the opinion of its counsel, be necessary to increase its authorized\nbut unissued shares of Common Stock to such number of shares as shall be\nsufficient for such purposes, including without limitation engaging in best\nefforts to obtain the requisite Board of Directors and stockholder approval of\nany necessary amendment to this Restated Certificate of Incorporation.\n\n               l. Notices. All notices and other communications required by the\nprovisions of this Restated Certificate of Incorporation shall be in writing,\nshall be effective when given, and shall in any event be deemed to be given upon\nreceipt or, if earlier, (a) five (5) days after deposit with the U.S. Postal\nService or other applicable postal service, if delivered by first class mail,\npostage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business\nday after the business day of deposit with Federal Express or similar overnight\ncourier, freight prepaid or (d) one (1) business day after the business day of\nfacsimile transmission (with confirmation), if delivered by facsimile\ntransmission with copy by first class mail, postage prepaid, and shall be\naddressed to each holder of record at his address appearing on the books of the\nCorporation.\n\n            5. Conversion of Senior Preferred. The holders of Senior Preferred\nshall have conversion rights as follows (the 'Senior Conversion Rights'):\n\n               a. Automatic Conversion Upon Qualified IPO. Immediately upon the\nCorporation's sale of its Common Stock in a Qualified IPO, each share of Senior\nPreferred shall automatically be converted into such number of fully paid and\nnonassessable shares of Common Stock as is determined by dividing the Original\nSenior Preferred Issue Price by the Senior Preferred Conversion Price,\ndetermined as hereafter provided, then applicable to such share.\n\n               b. Automatic Conversion Upon Specified Large Financing. Upon any\nSpecified Large Financing (as defined herein), each share of Senior Preferred\nshall automatically convert into such number of fully paid and nonassessable\nshares of Series D Preferred as is determined by dividing the Original Senior\nPreferred Issue Price in respect of such share by the Senior Preferred\nConversion Price applicable to such share, determined as hereafter provided, in\neffect on the date the certificate is surrendered for conversion. In this\nSection 5(b), a 'Specified Large Financing' shall mean the closing of the\nCorporation's first equity financing after the date hereof in which the lead\ninvestor is an independent professionally managed institutional investor and\nsuch financing results in gross cash proceeds received by the Corporation of\nmore than Fifty-Five Million Dollars ($55,000,000) and, for greater certainty,\nshall not include a Qualified IPO or any sale of Senior Preferred.\n\n               c. Optional Conversion Upon Specified Small Financing. Upon and\nat any time following a Specified Small Financing (as defined herein), each\nshare of Senior Preferred shall be convertible, at the option of the holder\nthereof into such number of fully paid and nonassessable shares of Series D\nPreferred as is determined by dividing the Original Senior Preferred Issue Price\nin respect of such share by the Senior Preferred Conversion Price applicable to\nsuch share, determined as hereafter provided, in effect on the date the\ncertificate is surrendered for conversion. No less than thirty (30) days prior\nto the occurrence of a Specified Small Financing, the Corporation, at its\nexpense, shall furnish to each holder of Senior Preferred, a notice (the\n'Specified Small Financing Notice') informing each holder of its rights under\nthis Section 5(c) and describing the particulars of the Specified Small\nFinancing. At any time on or following the closing of\n\n\n                                      -11-\n\n\nthe Specified Small Financing, any holder of Senior Preferred may elect to\nconvert such shares of Senior Preferred into Series D Preferred by written\nnotice (a 'Conversion Notice') to the Corporation specifying the number of\nshares of the Senior Preferred then held by such holder which such holder so\nelects to convert under this Section 5(c). In this Section 5(c), a 'Specified\nSmall Financing' shall mean the closing the Corporation's first equity financing\nafter the date hereof in which the lead investor is an independent\nprofessionally managed institutional investor and such financing results in\ngross cash proceeds received by the Corporation of not less than Twenty Million\nDollars ($20,000,000) and not more than Fifty-Five Million Dollars ($55,000,000)\nand, for greater certainty, shall not include a Qualified IPO or a sale of\nSenior Preferred.\n\n               d. Conversion Price. In this Section 5, the Senior Preferred\nConversion Price shall be deemed to be the amount specified by Section 5(d)(i),\n(ii) or (iii), as applicable:\n\n                    (i)Deemed Senior Preferred Conversion Price on Pre-2001\nQualified IPO. In the event that after the Original Issue Date of the Senior\nPreferred and prior to January 1, 2001 the Corporation shall complete its\nQualified IPO giving rise to automatic conversion of the Senior Preferred\npursuant to Section 5(a), then, at the closing of such Qualified IPO and for the\npurposes of the automatic conversion of the Senior Preferred, the Senior\nPreferred Conversion Price shall be deemed to be a price equal to seventy-three\npercent (73%) of the offering price to the public per share of Common Stock in\nsuch Qualified IPO.\n\n                    (ii) Deemed Senior Preferred Conversion Price on Post-2000\nQualified IPO. In the event that after December 31, 2000, the Corporation shall\ncomplete its Qualified IPO giving rise to automatic conversion of the Senior\nPreferred pursuant to Section 5(a), then, at the closing of such Qualified IPO\nand for the purposes of the automatic conversion of the Senior Preferred, the\nSenior Preferred Conversion Price shall be deemed to be a price equal to\nsixty-five percent (65%) of the offering price to the public per share of Common\nStock in such Qualified IPO.\n\n                    (iii) Deemed Senior Preferred Conversion Price on Specified\nSmall Financing and Specified Large Financing. In the event that after the\nOriginal Issue Date of the Senior Preferred, the Corporation shall complete (x)\na Specified Large Financing giving rise to automatic conversion of the Senior\nPreferred pursuant to Section 5(b) or (y) a Specified Small Financing in respect\nof which shares of Senior Preferred are converted at the option of holders\nthereof pursuant to Section 5(c), then, at the closing of such Specified Large\nFinancing or Specified Small Financing, as the case may be, and for the purposes\nof the conversion of the Senior Preferred under Section 5(b) or Section 5(c), as\nthe case may be, the Senior Preferred Conversion Price shall be deemed at such\ntime to be a price equal to sixty-five percent (65%) of the aggregate average\noffering price to the purchasers per share of stock issued in such Specified\nLarge Financing or Specified Small Financing (as the case may be) determined on\nan as-converted into Common Stock basis. In such event, the 'Original Series D\nIssue Price' referenced in Section 3(b) shall be deemed to be such Senior\nPreferred Conversion Price.\n\n               e. Mechanics of Conversion. Before any holder of Senior Preferred\nshall be entitled to convert the same into shares of Common Stock or Series D\nPreferred (as the case may be) under Section 5(a), Section 5(b) or Section 5(c),\nsuch holder shall surrender the certificate or certificates therefor, duly\nendorsed, at the office of this Corporation or of any transfer agent for the\nSenior Preferred, and shall give written notice to this Corporation at its\nprincipal corporate office, of the conversion of the same and shall state\ntherein the name or names in which the certificate or certificates for shares of\nCommon Stock or Series D Preferred (as the case may be) are to be issued. This\nCorporation shall, as soon as practicable thereafter, issue and deliver at such\noffice to such holder of Senior Preferred, or to the nominee or nominees of such\nholder, a certificate or certificates for the number of shares of Common Stock\nor Series D Preferred (as the case may\n\n\n\n                                      -12-\n\n\nbe) to which such holder shall be entitled as aforesaid. Such conversion shall\nbe deemed to have been made immediately prior to the close of business on the\ndate of such surrender of the shares of Senior Preferred to be converted, and\nthe person or persons entitled to receive the shares of Common Stock or Series D\nPreferred (as the case may be) issuable upon such conversion shall be treated\nfor all purposes as the record holder or holders of such shares of Common Stock\nor Series D Preferred (as the case may be) as of such date; provided, however,\nif the conversion is in connection with a Qualified IPO under Section 5(a), the\nconversion will be conditioned upon the closing with the underwriters of the\nsale of securities pursuant to such offering, in which event the person(s)\nentitled to receive the Common Stock upon conversion of the Senior Preferred\nshall not be deemed to have converted such Senior Preferred until immediately\nprior to the closing of such sale of securities; and provided, further, if the\nconversion is in connection with a Specified Large Financing under Section 5(b)\nor a Specified Small Financing under Section 5(c), the conversion will be\nconditioned upon the closing of such sale of securities.\n\n               f. No Impairment. The Corporation will not, by amendment of its\nCertificate of Incorporation or through any reorganization, recapitalization,\nsale or transfer of assets, consolidation, merger, dissolution, issue or sale of\nsecurities or any other voluntary action, avoid or seek to avoid the observance\nor performance of any of the terms to be observed or performed hereunder by the\nCorporation, but will at all times in good faith assist in the carrying out of\nall the provisions of this Section 5 and in the taking of all such action as may\nbe necessary or appropriate in order to protect the Senior Conversion Rights of\nthe holders of the Senior Preferred against impairment.\n\n               g. No Fractional Shares; Certificate as to Adjustment.\n\n                    (i) No fractional shares shall be issued upon the conversion\nof any share or shares of the Senior Preferred, and the number of shares of\nCommon Stock or Series D Preferred (as the case may be) to be issued shall be\nrounded to the nearest whole share. Such rounding shall be determined on the\nbasis of the total number of shares of Senior Preferred the holder is at the\ntime converting into Common Stock or Series D Preferred (as the case may be) and\nthe number of shares of Common Stock or Series D Preferred (as the case may be)\nissuable upon such aggregate conversion.\n\n                    (ii) Upon the occurrence of each adjustment or readjustment\nof the applicable Conversion Price of Senior Preferred pursuant to this Section\n5, the Corporation, at its expense, shall promptly compute such adjustment or\nreadjustment in accordance with the terms hereof and prepare and furnish to each\nholder of Senior Preferred a certificate executed by the Corporation's President\nor Chief Financial Officer setting forth such adjustment or readjustment and\nshowing in detail the facts upon which such adjustment or readjustment is based.\nThe Corporation shall, upon the reasonable written request at any time of any\nholder of Senior Preferred, furnish or cause to be furnished to such holder a\nlike certificate setting forth (A) such adjustment and readjustment, (B) the\napplicable Conversion Price for the Senior Preferred at the time in effect, and\n(C) the number of shares of Common Stock and the amount, if any, of other\nproperty which at the time would be received upon the conversion of a share of\nSenior Preferred held by such holder.\n\n               h. Notices of Record Date. In the event of any taking by the\nCorporation of a record date for determining the holders of any class of\nsecurities who are entitled to receive any dividend (other than a cash dividend)\nor other distribution, any right to subscribe for, purchase or otherwise acquire\nany shares of stock of any class or any other securities or property, or to\nreceive any other right, this Corporation shall mail to each holder of Senior\nPreferred, at least fifteen (15) days prior to the record date specified\ntherein, a notice specifying the record date for the purpose of such dividend,\ndistribution or right, and the amount and character of such dividend,\ndistribution or right.\n\n\n                                      -13-\n\n\n               i. Reservation of Stock Issuable Upon Conversion. This\nCorporation shall at all times reserve and keep available out of its authorized\nbut unissued shares of Common Stock and Series D Preferred Stock, solely for the\npurpose of effecting the conversion of the then outstanding shares of the Senior\nPreferred, such number of its shares of Common Stock and Series D Preferred\nStock (together with Common Stock issuable on conversion of such Series D\nPreferred Stock) as shall from time to time be sufficient to effect the\nconversion of all outstanding shares of the Senior Preferred; and if at any time\nthe number of authorized but unissued shares of Series D Preferred Stock or\nCommon Stock shall not be sufficient to effect the conversion of all then\noutstanding shares of the Senior Preferred, in addition to such other remedies\nas shall be available to the holder of such Senior Preferred, the Corporation\nwill take such corporate action as may, in the opinion of its counsel, be\nnecessary to increase its authorized but unissued shares of Series D Preferred\nStock or Common Stock to such number of shares as shall be sufficient for such\npurposes, including without limitation engaging in best efforts to obtain the\nrequisite Board of Directors and stockholder approval of any necessary amendment\nto this Restated Certificate of Incorporation.\n\n               j. Notices. All notices and other communications required by the\nprovisions of this Restated Certificate of Incorporation shall be in writing,\nshall be effective when given, and shall in any event be deemed to be given upon\nreceipt or, if earlier, (a) five (5) days after deposit with the U.S. Postal\nService or other applicable postal service, if delivered by first class mail,\npostage prepaid, (b) upon delivery, if delivered by hand, (c) one (1) business\nday after the business day of deposit with Federal Express or similar overnight\ncourier, freight prepaid or (d) one (1) business day after the business day of\nfacsimile transmission (with confirmation), if delivered by facsimile\ntransmission with copy by first class mail, postage prepaid, and shall be\naddressed to each holder of record at his address appearing on the books of the\nCorporation.\n\n            6. Voting Rights.\n\n               a. Junior Preferred Voting Rights. Each holder of shares of\nJunior Preferred shall be entitled to a number of votes equal to the number of\nshares of Common Stock into which the shares of Junior Preferred held by such\nholder could be converted, shall have voting rights and powers equal to the\nvoting rights and powers of the holders of Common Stock (except as otherwise\nexpressly provided herein or as required by law) and shall be entitled to notice\nof any stockholder meeting in accordance with the Bylaws of the Corporation and\nshall be entitled to vote, together with holders of Common Stock with respect to\nany question upon which holders of Common Stock have the right to vote.\nFractional votes shall not be permitted and any fractional voting rights\nresulting from the above formula (after aggregating all shares into which shares\nof Junior Preferred held by each holder could be converted) shall be rounded to\nthe nearest whole number (with one-half being rounded upward).\n\n               b. Senior Preferred Voting Rights. Each holder of shares of\nSenior Preferred shall be entitled to two votes per share, shall have voting\nrights and powers equal to the voting rights and powers of the holders of Common\nStock (except as otherwise expressly provided herein or as required by law) and\nshall be entitled to notice of any stockholder meeting in accordance with the\nBylaws of the Corporation and shall be entitled to vote, together with holders\nof Common Stock with respect to any question upon which holders of Common Stock\nhave the right to vote. Fractional votes shall not be permitted and any\nfractional voting rights resulting from the above formula (after aggregating all\nshares into which shares of Senior Preferred held by each holder could be\nconverted) shall be rounded to the nearest whole number (with one-half being\nrounded upward).\n\n               c. Required Class Vote. In addition to any other rights provided\nby law, so long as at least 1,000,000 shares of Preferred Stock shall be\noutstanding (as adjusted for stock splits, dividends, subdivisions,\ncombinations, recapitalizations and the like hereafter), this Corporation shall\nnot, without first obtaining the affirmative vote or written consent of the\nholders of not less than sixty percent\n\n\n\n                                      -14-\n\n\n(60%) of the voting power of the then outstanding shares of Preferred Stock,\nvoting as a single class and on an as converted basis:\n\n                    (i) increase or decrease the total number of authorized\nshares of the Preferred Stock (or any series thereof) or Common Stock;\n\n                    (ii) authorize a liquidation, dissolution, winding up, or\nChange in Control of the Corporation;\n\n                    (iii) redeem or repurchase any shares of capital stock of\nthe Corporation (excluding shares of Series E Preferred redeemed pursuant to\nSection 8 and excluding shares repurchased at or below cost upon termination of\nan officer, director, employee, consultant or advisor of the Corporation\npursuant to a restricted stock purchase agreement);\n\n                    (iv) change the number of directors from the number set\nherein or in the Corporation's Bylaws; or\n\n                    (v)authorize the creation or issuance of shares of any\nseries or class of capital stock or any other security exercisable for,\nconvertible into or exchangeable for shares of any series or class of capital\nstock (including by means of reclassification of any existing securities) which\nis senior to or on a parity with any series of Preferred Stock with respect to\ndividend rights, redemption rights, rights upon liquidation or conversion\nrights.\n\n               d. Required Series Vote - Junior Preferred. In addition to any\nother rights required by law, so long as at least 1,000,000 shares of Series A\nPreferred, Series B Preferred, Series C Preferred or Series D Preferred shall be\noutstanding, as the case may be (as adjusted for stock splits, dividends,\nsubdivisions, combinations, recapitalizations and the like hereafter), this\nCorporation shall not, without first obtaining the affirmative vote or consent\nof the holders of not less than a majority of the voting power of the then\noutstanding shares of each such series, voting as a separate series:\n\n                    (i)authorize any action (including without limitation the\namendment or repeal of any provision of, or the addition of any provision to,\nthis Corporation's Restated Certificate of Incorporation or Bylaws), if such\naction would alter or change the preferences, rights, privileges or powers of,\nor the restrictions provided for the benefit of, such series of Preferred Stock\nother than the creation of any new series of Preferred Stock approved by the\nholders of not less than 60% of the voting power of the then outstanding shares\nof Preferred Stock, voting as a single class and on an as-converted basis,\npursuant to Section 6(c) above; or\n\n                    (ii) authorize the creation or issuance of shares of any new\nseries or class of capital stock or any other security exercisable for,\nconvertible into or exchangeable for shares of any series or class of capital\nstock (including by means of reclassification of any existing securities) which\nis senior to such series of Preferred Stock with respect to dividend rights,\nredemption rights, rights upon liquidation or conversion rights.\n\n               e. Required Series Vote - Senior Preferred. In addition to any\nother rights required by law, so long as Senior Preferred shall be outstanding,\nthis Corporation shall not, without first obtaining the affirmative vote or\nconsent of the holders of not less than sixty percent (60%) of the voting power\nof the then outstanding shares of such series.\n\n\n\n                                      -15-\n\n\n                    (i) authorize any action (including without limitation the\namendment or repeal of any provision of, or the addition of any provision to,\nthis Corporation's Restated Certificate of Incorporation or Bylaws), if such\naction would alter or change the relative preferences, rights, privileges or\npowers of, or the restrictions provided for the benefit of, Senior Preferred\nother than the creation of a new series of Preferred which is junior to the\nSenior Preferred with respect to dividend rights, redemption rights, or rights\nupon liquidation; or\n\n                    (ii) authorize the creation or issuance of shares of any new\nseries or class of capital stock or any other security exercisable for,\nconvertible into or exchangeable for shares of any series or class of capital\nstock (including by means of reclassification of any existing securities) which\nis senior to or on parity with the Senior Preferred with respect to dividend\nrights, redemption rights or rights upon or liquidation.\n\n               f. Board Size. The authorized number of directors of the\nCorporation's Board of Directors shall be determined as set forth in the Bylaws\nof the Corporation; provided, however, that the authorized number of directors\nof the Corporation's Board of Directors shall not exceed eight (8) members\nunless the Corporation shall have obtained the affirmative vote of at least a\nmajority of the voting power of the then outstanding shares of Preferred, voting\nas a single class.\n\n               g. Board of Directors Election. The holders of the Series A\nPreferred, so long as at least 2,000,000 shares of Series A Preferred remain\noutstanding, voting as a separate series (on an as-converted basis) (as\nappropriately adjusted for stock splits, dividends, subdivisions, combinations,\nrecapitalizations and the like hereafter), shall be entitled to elect three (3)\ndirectors of the Corporation at each annual election of directors; the holders\nof the Series B Preferred, so long as at least 2,000,000 shares of Series B\nPreferred remain outstanding (as appropriately adjusted for stock splits,\ndividends, subdivisions, combinations, recapitalizations and the like\nhereafter), voting as a separate series (on an as-converted basis), shall be\nentitled to elect two (2) directors of the Corporation at each annual election\nof directors; and the holders of a majority of the Senior Preferred, the Junior\nPreferred and the Common Stock, voting together as a single class and not as\nseparate series (with the Junior Preferred voting on an as-converted basis),\nshall be entitled to elect the remaining number of directors authorized, if any,\nto be elected as a director of the Corporation at each annual election of\ndirectors. In the case of any vacancy (other than a vacancy caused by removal)\nin the office of a director occurring among the directors elected by the holders\nof a class or series of stock pursuant to this Section 4(e), the remaining\ndirectors so elected by that class or series may by affirmative vote of a\nmajority thereof (or the remaining director so elected if there be but one, or\nif there are no such directors remaining, by the affirmative vote of the holders\nof a majority of the shares of that class or series), elect a successor or\nsuccessors to hold office for the unexpired term of the director or directors\nwhose place or places shall be vacant. Any director who shall have been elected\nby the holders of a class or series of stock or by any directors so elected as\nprovided in the immediately preceding sentence hereof may be removed during the\naforesaid term of office, either with or without cause, by, and only by, the\naffirmative vote of the holders of the shares of the class or series of stock\nentitled to elect such director or directors, given either at a special meeting\nof such stockholders duly called for that purpose or pursuant to a written\nconsent of stockholders, and any vacancy thereby created may be filled by the\nholders of that class or series of stock represented at the meeting or pursuant\nto unanimous written consent.\n\n            7. Status of Converted Preferred Stock. In the event any shares of\nJunior Preferred or Senior Preferred shall be converted pursuant to Section 4 or\nSection 5, respectively, the shares so converted shall be canceled and shall not\nthereafter be issuable by the Corporation. The Certificate of Incorporation of\nthe Corporation shall be appropriately amended to effect the corresponding\nreduction in the Corporation's authorized capital stock.\n\n\n\n                                      -16-\n\n\n            8. Redemption Rights.\n\n               a. Senior Preferred. The holders of Senior Preferred shall have\nredemption rights as follows:\n\n                    (i) Upon the written request of the holders of not less than\ntwo-thirds (2\/3) of the then outstanding shares of Senior Preferred, at any time\nafter December 31, 2002, (the 'Triggering Event'), the Corporation shall redeem\nall of the issued, outstanding and unconverted shares of Senior Preferred from\nany funds legally available therefor.\n\n                    (ii) Redemption Price. The redemption price for each share\nof Senior Preferred repurchased shall be equal to (i) the Original Senior\nPreferred Issue Price (adjusted for any stock split, dividend, combination,\nrecapitalization or similar event with respect to such shares after the Original\nIssue Date of the Senior Preferred) plus a redemption premium which shall\naccumulate at a rate of eight percent (8%) per year (based on the Original\nSenior Preferred Issue Price), compounded annually from the Original Issue Date\nof the Senior Preferred through the date such share is redeemed, less (ii) the\namount of any cash dividends actually paid on each share of Senior Preferred\nthrough the Redemption Date.\n\n                    (iii) Procedure on Redemption. If the Corporation shall\nreceive written notice from holders of no less than two-thirds (2\/3) of the then\noutstanding shares of Senior Preferred requiring the Corporation to redeem the\nshares of Senior Preferred pursuant to Section 8(a)(i)(a) above, then the\nCorporation shall provide written notice of redemption to each holder of record\nof Senior Preferred at least thirty (30) but not more than sixty (60) days prior\nto the date of redemption set by the Corporation. Such notice shall be sent by\ncertified mail, postage prepaid, addressed to each holder at the address shown\nin the Corporation's records and shall specify the Redemption Date, the number\nof shares to be redeemed and the date at which conversion rights terminate\n(which date shall be no earlier than five (5) days prior to the date fixed for\nredemption). On or after the Redemption Date, as specified in such notice, each\nholder shall surrender his certificate for the number of shares to be redeemed\nas stated in the notice (except that such number of shares shall be reduced by\nthe number of shares which have been converted pursuant to Section 5 hereof\nbetween the date of notice and the date on which conversion rights terminate) to\nthis Corporation at the place specified in such notice. Provided such notice is\nduly given, and provided that on the Redemption Date specified there shall be a\nsource of funds legally available for such redemption, and funds necessary for\nthe redemption shall have been paid or made available at the place fixed for\nredemption, then all rights with respect to such shares shall, after the\nspecified Redemption Date, terminate whether or not said certificates have been\nsurrendered, excepting only that in the latter instance the right of the holder\nto receive the redemption price thereof, without interest, upon such surrender\nwill not terminate.\n\n                    (iv) Partial Redemption. If upon a Triggering Event, the\nCorporation is lawfully able to redeem only a part of the outstanding Senior\nPreferred, the Corporation shall redeem from each such holder that number of\nshares of Senior Preferred equal to the product obtained by multiplying the\ntotal number of shares of Senior Preferred to by redeemed by the Corporation by\na fraction, the numerator of which is the number of shares of Senior Preferred\nthen held by such holder and the denominator of which is the total number of\nSenior Preferred then outstanding. The shares of Senior Preferred not redeemed\nunder this Section 8 shall remain outstanding and entitled to all the rights and\npreferences provided herein. At any time thereafter when additional funds of the\nCorporation are legally available for the redemption of Senior Preferred, such\nfunds shall immediately be used to redeem the balance of the Senior Preferred\nwhich the Corporation has become obliged to redeem under this Section 8, but\nwhich it has not redeemed. The shares of Senior Preferred which have not been\nredeemed shall continue to be entitled to the dividend, conversion and other\nrights, preferences and privileges and restrictions of the Senior Preferred\nuntil such shares have been redeemed and the redemption price has been paid or\nset aside with respect thereto.\n\n\n                                      -17-\n\n\n               b. Junior Preferred. The Junior Preferred is not redeemable.\n\n        C. Common Stock.\n\n            1. Dividend Rights. Subject to the prior rights of holders of all\nclasses of stock at the time outstanding having prior rights as to dividends,\nthe holders of the Common Stock shall be entitled to receive, when and as\ndeclared by the Board of Directors, out of any assets of the Corporation legally\navailable therefor, such dividends as may be declared from time to time by the\nBoard of Directors.\n\n            2. Liquidation Rights. Upon the liquidation, dissolution or winding\nup of the Corporation, the assets of the Corporation shall be distributed as\nprovided in Section 3 of Article IV(B) hereof.\n\n            3. Voting Rights. Each holder of Common Stock shall be entitled to\none (1) vote for each share of Common Stock held, shall be entitled to notice of\nany stockholder meeting in accordance with the Bylaws of the Corporation, and\nshall be entitled to vote upon such matters and in such manner as is otherwise\nprovided herein or as may be provided by law.\n\n            4. Redemption. The Common Stock is not redeemable.\n\n                                    ARTICLE V\n\n        The Corporation is to have perpetual existence.\n\n                                   ARTICLE VI\n\n        Except as otherwise provided in this Restated Certificate of\nIncorporation, the Board of Directors may make, repeal, alter, amend or rescind\nany or all of the Bylaws of the Corporation.\n\n                                   ARTICLE VII\n\n        Elections of directors at an annual or special meeting need not be by\nwritten ballot unless a stockholder demands election by written ballot at the\nmeeting and before voting begins or unless the Bylaws of the Corporation shall\nso provide.\n\n                                  ARTICLE VIII\n\n        Meetings of stockholders may be held within or without the State of\nDelaware, as the Bylaws may provide. The books of the Corporation may be kept\n(subject to any provision contained in the statutes) outside the State of\nDelaware at such place or places as may be designated from time to time by the\nBoard of Directors or in the Bylaws of the Corporation.\n\n                                   ARTICLE IX\n\n        Subject to Section 6 of Article IV, the Corporation may amend, alter,\nchange or repeal any provision contained in this Restated Certificate of\nIncorporation, in the manner now or hereafter prescribed by statute. All rights\nconferred on stockholders herein are granted subject to this reservation.\n\n\n                                      -18-\n\n\n                                    ARTICLE X\n\n        To the fullest extent permitted by the General Corporation Law of\nDelaware, as the same may be amended from time to time, a director of the\nCorporation shall not be personally liable to the Corporation or its\nstockholders for monetary damages for breach of fiduciary duty as a director. If\nthe General Corporation Law of Delaware is hereafter amended to authorize, with\nor without the approval of a Corporation's stockholders, further reductions in\nthe liability of the corporation's directors for breach of fiduciary duty, then\na director of the Corporation shall not be liable for any such breach to the\nfullest extent permitted by the General Corporation Law of Delaware as so\namended.\n\n        Any repeal or modification of the foregoing provisions of this Article\nX, by amendment of this Article X or by operation of law, shall not adversely\naffect any right or protection of a director of the Corporation with respect to\nany acts or omissions of such director occurring prior to such repeal or\nmodification.\n\n                                   ARTICLE XI\n\n        To the fullest extent permitted by applicable law, the Corporation is\nauthorized to provide indemnification of (and advancement of expenses to)\ndirectors, officers, employees and other agents of the Corporation (and any\nother persons to which Delaware law permits the Corporation to provide\nindemnification), through Bylaw provisions, agreements with any such director,\nofficer, employee or other agent or other person, vote of stockholders or\ndisinterested directors, or otherwise, in excess of the indemnification and\nadvancement otherwise permitted by Section 145 of the Delaware General\nCorporation Law, subject only to limits created by applicable Delaware law\n(statutory or nonstatutory), with respect to actions for breach of duty to a\ncorporation, its stockholders and others.\n\n        Any repeal or modification of any of the foregoing provisions of this\nArticle XI, by amendment of this Article XI or by operation of law, shall not\nadversely affect any right or protection of a director, officer, employee or\nother agent or other person existing at the time of, or increase the liability\nof any director of the Corporation with respect to any acts or omissions of such\ndirector, officer or agent occurring prior to such repeal or modification.\n\n\n                                      -19-\n\n\n        IN WITNESS WHEREOF, the undersigned has executed this certificate on\nApril 20, 2000.\n\n                                  CORIO, INC.\n\n\n                                  By: _________________________________________\n                                       President and Chief Executive Officer\n\n\n                                      -20-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7212],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9573,9575],"class_list":["post-41593","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-corio-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-formation","corporate_contracts_types-formation__incorporation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41593","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41593"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41593"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41593"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41593"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}