Software Rights Archive, LLC v. Google Inc. et al

Filing 118

SUR-REPLY to Reply to Response to Motion re 66 MOTION to Dismiss for Lack of Standing filed by Software Rights Archive, LLC. (Attachments: # 1 Exhibit Table of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 8, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Errata Exhibit 13, # 15 Exhibit Exhibit 14, # 16 Exhibit Exhibit 15, # 17 Exhibit Exhibit 16, # 18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 18, # 20 Exhibit Exhibit 19, # 21 Exhibit Exhibit 20, # 22 Exhibit Exhibit 21, # 23 Exhibit Exhibit 22, # 24 Exhibit Exhibit 23, # 25 Exhibit Exhibit 24, # 26 Exhibit Exhibit 25, # 27 Exhibit Exhibit 26, # 28 Errata Exhibit 27)(Duvvuri, Narasa)

State of Delaware

PAGE 1

Office of the Secretary of State

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF

DELAWARE, DO HEREBY CERTIFY THE ATTACHED is A TRUE AND CORRECT

COPY OF THE RESTATED CERTIFICATE OF "LIBERTECH INC.", FILED IN .,." . THIS' OFFICE ON THE TlIRI DAY OF APRIL, A.D. 1995, AT 12:30

O'CLOCK P.M.
- ....~ .'

A CERTIFIED COpy OF THIS CERTIFICATE HAS BEEN FORWARED TO
::
:;.

THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.

. . \".

EXHIBIT 14

Edward J. Freel, Secretary of State

t~

AUTIENTICATION:

2300985 8100
DATE:

7460046

950073174
CONFIDENTIAL

04-03-95
STL0005393

,.

RESTATED CERTIFCATE OF INCORPORATION OF

LmERTECH INC.
Libertech Inc., a corporation organed and existing under the laws of the State of
Delaware, does hereby

certify:

1. The nae of the corporation is Libenech. Inc. The originl Certificate of
Incorporation was tied with the Secreta of State of the State of Delaware on June 15. 1992.

2. . The amendment and restatement herein set fort has been duly approved by the
Board of Directors of the corporation and by the stockholders of the corporation pursut to

Section 242 of the General CorPoration Law of the State of Delaware ("Delaware Law").

3. The amendment and restatement herein set fort has been duly adopted ptluat to
Section 245 of the Delaware Law. Ths Restated Certificate of Incorporation restates and
integrates and furter amends the provision of the corporation's Certificate of Incorporation as

heretofore amended.

4. The text of the Certificate of Incorporation is hereby restated and amended to read
in its entirety as follows:

ARTICLE I
The nae of the corporation is Libertech Inc.

ARTICLE II
The address of the registered offce of the corpration in th State of Delawar is

Corporation Trost Center, 1209 Orange Street, in the City of Wilmgton. County of New is The Corporation Trost Company. Castle. The nae of its registered agent at such address'
ARTICLE III

The purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organied under the General Corporation Law of Delaware.

CONFIDENTIAL

STI_0005394

ARTICLE iv

(A) Classes of Stock. The corporation. shall be autlorid to issue two classes of stock to be designated, respectively, "Prferred Stock" and "Common Stock". The number of shares of Preferred Stock authorized to be issued is Two Millon (2,00,000) and the number of .
shares of Common Stock authoried to be issued is Twenty Milion (20,00,00). The Prefetrecr
Stock and the Common Stock shal each have a par value of $0.001 per sha.

(B) Preferred Stock. Th shaes of Preferrecr Stok may be issued from time to time

in one or more series pursuat to a resolution or resolutions providig for such issue duly adopted by the Board of Directors. The Board of Directors of the corporation is eJ(pressly
authoried, by fùing a certificate pursut to th applicable law of the State of Delawar, to:

(i) establish from time to time the nuer of shaes to be include in each such series; (ii) fix
the votig powers, designations, powers, preferences and relative, parcipatig, optiona or
other rights of the shas of each such series and the qualifications, limtations or restrctions

thereof, including but not limited to th fixing or alteration of the dividend rights, dividend rate, conversion rights, conversion rate, voting rights, rights and terís of redemption (inluding sinkg fud provisions), the redemption price or prices, and the liquidation preferences of any
wholly unissued series of shares of Preferred Stock; and (ii) increase or decrease the nuber of .

shares of any series subsequent to the issue of shas then outstanding. In case the nuber of shares of any series shall be so decreased, th number of shars constituting such decrease sha
resume the status which they had prior to the adoption of the resolution originlly fixing th

number of shares of such series. The first such series shal be designated "Series A Preferrd
Stock" and shall consist of Five Hundred Ninety-Six Thousand (596,00) shaes. The second

such series shall be designated "Series B Preferred Stock" and shall consist of One Million
(1,000,000) shares. The rights, preferences, privileges and restrctions granted to or imposed

upon the Series. A Preferred Stock and the Series B Preferred Stock are as. follows:
1. Dividend Provisions.
(a) Dividend Rights of Series A Preferred Stock and Series B Preferrd. Stock. The holders of th outsdin Series A Preferred Stock' and Series B Preferred Stock

shall be enttled to receive dividends, when an as declared by the Board of Directors of the

corporation, out of any assets at the time legally available therefor, at the rate of Six Cent
$0.06 per share per aium, and $0.137 per share per annum, respectively, payable in preference and priority to any payment of any dividend on Common Stock an payable quarerly or as the

Board of Directors may from time to time detennine. Such dividends shall not be cumulative
(except in the case of a liquidation under Section 2)

so tht if such dividends in respect of any

fiscal quarter of the corporation (calculated at said rate per share per anum) shall not have been.

paid on, or declared and set apart for, all shares of Series A Preferred Stock and Series B . Preferred Stock at the time outstading, no right shal accrue to the holders of Series A
Preferred Stock and Series B Preferred Stock by reason of the fact tht dividends on said shas

NMGOSK.W4ZiSP3) 03/ZS/9S

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CONFIDENTIAL

STI_0005395

are not declared or paid with respect to any fiscal year of the corporation. No undeclared or
unpaid dividends shall bear or accrue interest.
(b) Dividend Rights of Common Stock. Dividends may be declared

and paid upon Common Stock in any fiscal year of the corporation if dividends shall have been paid or declared and set apart upon all shares of Series A Preferred Stock and Series B Preferrd Stock at the annual rates set fort in Section l(a) above for each quarer of such fiscal year of the corporation, including the fiscal quarer in which such dividends upon Common Stock are declared; provided, however, tht if dividends ar declared on Common Stock, dividends mut
likewise be declared at the same rate (assuming, for such purpose, the conversion of all .

outstanding shares of Series A Preferred Stock and Series B Preferred Stock into Common Stock'
as provided in Section 3 hereof) with respect to the outstadig Series A Preferred Stock and

Series B Preferred Stock, and payment of any such dividends shall be made contemporaneously
to the holders of Series A Preferred Stock, Series B Preferred Stock and Common Stock.

deemed to have consented to any distrbutions made by the corporation in connection with the repurchase of shares of Common issued to or held by offcers, directors, employees or consultants of the corporation or its subsidiaries upon termintion of their employment or
services pursuant to agreements or as otherwise set fort in the Bylaws of the corporation
I II

(c) Consent. Each holder of an outstading share of Preferred shall be

providing for the right of said repurchase between the corporation and such persons.
2. Liquidation Preference. LLñ:e-event-of-anY.liquidation! dissolution, or

winding up of the corporation (or the deemed occurrenctLt.such event pursuant to
subsection Cd) below), either volunta or involuntary, Æjs.trb.utions to the shareholders of.th:Ð

Icorporation~shall-be-iñde;in the following maer:
¡,

(a) Amount of Liquidation Preference. The holders of the Series A
Preferrd Stock an Series B Preferred Stock shall be entitled to receive, prior and in preference

.' l

to any distribution of any of the assets or surlus funds of the corporation to the holders of the Common Stock by reason of thir ownership of such stock, the amount of $1.00 per sha for each share of Series A Preferred Stock then held by them and the amount of $2.283906 for each share of Series B Preferrd Stock then held by them, adjusted for any combintions,
consolidations, or stock distributions or dividends with respect to such shaes and, in addition,

an amount equal to all accrued but unpaid dividends on the Series A Preferrd Stock and Series
B Preferred Stock, respectively.
. \,,

If the assets and funds thus available for distrbution among the holders of the Series A
Preferred Stock and the Series B Preferred Stock shal be inuffcient to permit the payment to

such holders of their full aforesaid preferential amount, then th entire amount of the assets an

funds of the corporation legally available for distrbution shall be distrbuted ratably among the
holders of the Series A Preferred Stock and Series B Preferred Stock in such a maner tht the

aiount to be distributed to each holder of Series A Preferred Stock an Series B Preferred Stock

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CONFIDENTIAL

STI_0005396

shall equal the amount obtained by multiplying the entire assets and funds of the corporation
legally available for distribution hereunder by a fraction, the numerator of which shall be the

sum of the products obtained by multiplying the number of shares of Series A Preferred Stock and Series B Preferred Stock then held by the holder by the respective liquidation preference of the Series A Preferred Stock and Series B Preferred Stock, and the denomintor of which shall be the sum of the products obtained by multiplying the total number of shares of Series A Preferred Stock and Series B Preferred Stock then outstading by the respective liquidation preference of the Series A Preferred Stock and the Series B Preferred Stok.
(b) Distribution after Payment of Liquidation Preference. After

payment has been made to the holders of the Series A Preferrd Stock and the Seriesß ·
" , I

P.~rred~Stock~of..the-fuILpreferential amg,unt~set-fort~in.Section~2(a)~above, pi entir;: ~ temaing assets cld~funds.oLthe_~rl'oration.Jegally available fpcdistrbutio!!5f.~Y., Çli be

fdstrbuted.ratably-among~ili.ë.liolaers.of~the-Series~A..P.r.e.(erred S~ck.an~Señes B PreferredJ

Sfë~subject to the limitations set fort below i and the holders oCCommon Stock in a manr such that the amount distributed to each holder of the corporation's capital stock shall equal the amount obtained by multiplying the entire assets and fuds of the corporation legally available for distribution pursuant to this Section 2(b) by a fraction, the numerator of which shall be the sum of the number of shares of Common Stock then held by the holder an the number of shares
of Common Stock issuable upon conversion of the shares of the Series A Preferred Stock and

Series B Preferred Stock then held by the holder, and the denomintor of which shall be the sum
of the total number of shares of Common Stock then outstag and the total number of shaes of Common Stock issuable upon conversion of the total number of shes of the Series A
Preferred Stock and Series B Preferred Stock then outstading; provided, however, tht at such

time as the distrbution of liquidation preferences pursuant to ths Aricle iV, Section 2
(including subsections (a) and (b) hereof) shal equal (i) $2.00 per shae of Series A Preferred

Stock or (ii) $4.567812 per share of Series B Preferred Stock, such holders of Series A Preferred Stock and Series B Preferred Stock, as the case may be, shall not be entitled to any
furter distribution pursuant to ths subsection 2(b) with respect to shares of Series A Preferred

Stock or Series B Preferred Stock, as the case may be. ~e.after~any..r.emaing::sets.andl
Jlnds-=legall~~available~for-distribution~hereudecshaLbe~distrbuted;s.Qy.-to~the=holders-:of.;the:t

~ommTitock!in a maner such tht the remaig amount distrbuted to. each holder of

Common Stock shal equal the amount obtained by multiplying the entir assets and funds of the
corporation legally available for distrbution hereunder by a fraction, the numerator of which

shall be the number of shares of Common Stock then held by such holder, and the denomintor
of which shall be the total number of shares of Common Stock then outstading.
. ...

(c) Shares not Treated as Both Preferred Stock and Common Stock in

any Distribution. Shares of Preferred Stock shall not be entitled to be converted into shares of Common Stock in order to paricipate in any distrbution, or series of distributions, as shares of
Common Stock, without first foregoing paricipation in the distribution, or series of

distributions, as shares of Preferred Stock.

NMGOSK. W42(5P3J 03128195

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CONFIDENTIAL

STI_ 0005397

consolidation of the corporation with or into any other corporation or any other person or entity,
other than a wholly-owned subsidiary of the corporation, (ii) any other corporate reorganiation,

(d) Events Deemed a Liquidation. In the event of (i) a merger or

sharholders of the corporation imediately prior to such a subsection (i), (ii) or (ii) traaction are holders of at least a majority of the voting securities of the surviving or acquirg corporation irediately thereafter, such event shall be treated.a~ a liquidation, dissolution or winding up with the meanig of ths Section 2.
or (ii) a sale of all or substatially all of the assets of the corporation, unless

3. Conversion. The holders of the Series A Preferred Stock and Series B

Preferred Stock shall have conversion rights as follows:
(a)

Right to Convert and Automatic Conversion. ¡
;,'.

(i) The Series A Preferred Stock shall be convertible, at the
option of the respective holders thereof, at any tie at the office of ths corporation or any

transfer agent for such shares, into fully paid and non-assessable shaes of Common Stock

(calculated to the nearest one-hundredth of a share, fractions of less th one-hundredth of a share being disregarded) of this corporation, based upon the applicable Series A Conversion Price (as defmed below) in effect at the time of conversion. The number of shares of Common Stock into which each share of Series A Preferred Stock may be convened shall be equal to
!'

$1.00 divided by the then current Series A Conversion Price. The price at which each shae of Common Stock shall be deliverable upon conversion of the Series A Preferred Stock (herein

sometimes referred to as the "Series A Conversion Price") shall intially be $1.00. Such initial
Series A Conversion Price shall be subject to adjustment from time to time in certin intaces,

l
"I

as hereinfter provided in this Section 3. Ths corporation shall make no payment or adjustment
on account of any declared but unpaid dividends on the shares of the Series A Preferred Stock
surrendered for conversion.

(ii) The Series B Preferred Stock shal be convertible, at the

option of the respective holders thereof, at any time at the office of th corporation or any transfer agent for such shares, into fully paid and non-assessable shaes of Common Stock (calculated to. the neaest one-hundredth of a share, fractions of less ma one-hundredth of a
share bein disregarded) of ths corporation, based upon th applicable Series B Conversion

Price (as defmed below) in effect at the time of conversion. The number of shares of Conion Stock into which each share of Series B Preferred Stock may be converted shall be equal to
1\

$2.283906 divided by the then curent Series B Conversion Price. The price at which each share of Common Stock shall be deliverable upon conversion of the Series B Preferred Stock

(herein sometimes referred to as the "Series B. Conversion Prce") shall intially be $2.283906. Such initial Series B Conversion Price shall be subject to adjustnent from time to time in certin
instances, as hereinfter provided in tls Section 3. Tls corporation shall make no payment or
adjustment on account of any declared but unpaid dividends on the shares of the Series B

NMGOK. W42(SP3) 03/28195

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Î

CONFIDENTIAL

STI_0005398

.'1

Preferred Stock surrendered for conversion. The Series A Conversion Price and the Series B Conversion Price are sometimes referred to herein, collectively, as the "Conversion Prices".
(ii) Each shae of Series A Preferred Stock and Series B

Preferred Stock shall automatically be converted into shares of Common Stock at the then
effective Series A Conversion Price or Series B Conversion Price, if applicable, iiediately

.!

.1
i

upon the first to occur of the following: (A) the closing of an underwrittn public offerig coverig the corporation's Common Stock pursuan to an effective registrtion statement under th Securities Act of 1933, as amended, where the gross proeeds to the corporation ar at least $10,000,000 and the per share public offerig price is at least $5.00, as presently constuted; or (B) at such time as the consent of the holders of at least a majority of the then-outstading shaes of Preferred Stock to such conversion has been obtained.
(b) Mechanics of Conversion. Before any holder of shares of th

Preferred Stock shall be entitled to convert the same into shares of Common Stock, the holder
.1 , I

shall surrnder the cenificate or certficates therefor, duly endorse in blan or accompaned by
proper instrents of transfer, at the office of ths corporation or of any tranfer agent for the shares of the Preferred Stock and shall give written notice to ths corporation at such office that such holder elects to convert the same and shall state in writing therein the nae or naes in which such holder wishes the certificate or certificates for shares of Common Stock to be issued.

i,

Th corporation shall, as soon as practicable thereafter, issue and deliver at such offce to such holder of shares of the Preferred Stock or to such holder's nominee or nomies, certificas for the number of full shaes of Common Stock to which such holder shal be entitled, as aforesaid, together with cash in lieu of any fraction of a share as hereinftr provided in th Section 3.
Such conversion shall be deemed to have been made as of the date of such surrndr of the

I'

shares of the Preferrd Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shaes of Common Stock on said date.
(c) Adjustment for Stock Splits and Combinations. If the corporation

'j

I

I:

shall at any time or from time to time after the Issue Date (as dermed below in ths subsection (c) effect a subdivision of the outstading Common Stock, the Conversion prices then
in effect iidiately before tht subdivision shal be proportionately decreased, and conversely,

if the corporation shall at any time or from time to time after the Issue Date combine the outstanding shares of Common Stock, the Conversion Prices then in effect imediately before
the combination shall be proportionately increased. Any adjustment under

ths subsection (c)

i i,.

shall become effective at the close of business on the date the subdivision or combintion
becomes effective. "Issue Date" for Series A Preferred Stock and the Series B Preferred Stock

shall mean the date of the fiing of ths Restated Certificate of Incorporation with the Delaware
Secretary of State.
(d) Adjustment for Certin Dividends and Distrbutions. In the event

the corporation at any time, or from time to time after the Issue Date shall make or issue, or fix.

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CONFIDENTIAL

STI_0005399

a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in additional shares of Common Stock, then and in each such event
the Conversion Prices then in effect shall be decreased as of the time of such issuace or, in the

event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Conversion Prices then in effect by a fraction:
(i) th numerator of which shal be th total nuber of shaes

of Common Stock issued and outstading imediately prior to the tim of such issuace or the
close of business on such record date, and
(ii) the denomitor of which shall be th total number of shaes

of Common Stock issued and outstading imdiately prior to the time of such issuace or the close of business on such record date plus the number of shars of Common Stock issuble in
payment of such dividend or distrbution; provided, however, tht if such record date sha have

been fixed and such dividend is not fully paid or if such distrbution is not fully made on the date fixed therefor, the Conversion Prices shall be recomputed accordingly as of the close of
businss on such record date and thereafter Conversion Prices shall be adjusted pursuant to ths
subsection (d) as of the tie of actual payment of such dividends or distrbutions.

(e) Adjustments for Other Dividends and Distrbutions. In the event
the corporation at any time or from :.

tie to time after the Issue Date shal make or issue, or flX

entitled to receive, a dividend or other distribution payable in securities of the corporation other than shas of Common StQck,
a record date for the determination of holders of Common Stock

,, ¡

then and in each such event provision shal be made so that the holders of Preferred Stock shal receive upon conversion thereof in addition to the number of shares of Common Stock receivable thereupon, the amount of securities of the corporation which thy would have received had thir Preferred Stock been convertd into Common Stock on the date of such event and had thereafter,
during the period from the date of such event to and including the conversion date, retaed such

securities (together with any distributions payable thereon durig such period) receivable by them as aforesaid during such period, giving application to all adjustments called for durig such period under ths Section 3 with respect to the rights of the holders of the Preferred Stock.
I' .
(t) Adjustment for Reclassification. Exchan or Substitution. If the

Common Stock issuable upon the conversion of the Preferred Stock shal be chaged into the

same or different number of shares of any other class or clases of stock, by capital
reorganition, involving exchange, substitution, reclassification or otherwise (other th a

'r..

subdivision or combination of shaes or stock dividend

provided for above, ora reorganation, merger, consolidation or sale of assets provided for below in ths Section 3), thn and in each such event the holder of each share of Preferred Stock shall have the right thereafter to convert
receivable upon such reorganiation, reclassification or other chae, as holders of the number

each such share into the kind and amount of shas of stock and other securties and propert
I

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of shares of Common Stock into which such shares of Preferred Stock might have been

"j

NMGOSK.W42(SPJ) 03/28/95

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CONFIDENTIAL

STI_0005400

converted imediately prior to such reorganition, reclassification or change, all subject to
furter adjustment as provided herein.

(g) Reorganiation. Merger. Consolidation or Sale of Assets. If at any

time or from time to time there shall be a capital reorganation of the Common Stock (other
thn a subdivision, combination, reclassification or exchange of shaes provided for elsewhere in

this Section 3) or a merger or consolidation of the corporation with or into another corporation, or the sale of all or substatially all of the corporation's propertes and assets to any othr person, then, as a pan of such reorganation, merger, consolidation or sale, provision sha be made so that th holders of th Preferrd Stock shall thereaftr be entitled to receive upon
conversion of such Preferred Stock the nuber of shaes of stock or other securties or propert
...1
i

of the corporation, or of the successor corporation resulting from such reorgantion, merger,

consolidation or sale, to whih a holder of Common Stock deliverable upon conversion would have been entitled on such capital reorgantion, merger, consolidation or sale. In any suh
case, appropriate adjustment shall be made in the application of the provisions of ths Section 3

with respect to the rights of the holders of the Preferred Stock after th reorganation, merger,
consolidation or sale to

the end that the provisions of ils Section 3 (including adjustment of the

Conversion Prices then in effect and the number of shares receivable upon conversion of the Preferred Stock) shall be applicable after that event as nearly equivalent as may be practicable.
i ii

(h)

Sale of Shares Below Conversion Price.
(i) If at any time or from time to time after the Issue Date the

corporation shall issue or sell Additional Shares of Common Stock (as defined in Section 3(i) below), other than as a dividend or other distrbution on any class of stock as provided in
I'

subsections (d) and (e) above and other th upon a subdivision or combintion of shas of
Common Stock as provided in subsection (c) above, for a consideration per shae less th the

¡,

and in each case the Conversion Prices shal be reduced, as of the openig of business on the date of such issue or sale, to a price determed by
then applicable Conversion Prices, then

"I

multiplying the Conversion Prices by a fraction, the numerator of which shal be (x) the nuber

. . (., ,

of shares of Common Stock outstading at the close of business on the day next preceding the . date of such issue or sale, plus (y) the number of shaes of Common Stock which the aggrgate consideration received by the corporation for the tota number of Additiona Shas of Common Stock so issued would purchase at the Conversion Prices an the denomitor of which shal be the number of shares of Common Stock outstading at the close of business on the date of such issue or sale after giving effect to the issuance of such Additional Shaes of Common Stock. For purposes of ths Section 2(h) and except as provided below, references to "Coouon Stoc" shall include Common Stock receivable upon conversion of Convertible Securities and upon exercise of all Options outstading on the date imediately preceding date of the issuance of
Additional Shares of Common Stock, except tht shaes of Common Stock subject to Options shall not be included to th extent tht the per shar exercise price is greater th the then-

,¡ ,\

current fair maket value of such Common Stock, as detennind in good faith by the Board of
Directors.

.r
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(ii) For th purpose of makg any adjusnnent in the

Conversion Prices or number of shares of Common Stock receivable on conversion of Preferred
Stock as provided in ths subsection (h), the consideration received by the corporation for any

issue or sale of securities shall:

(A) to the extent it consists of cash, be computed at the
aiount of cash received by the corporation before deduction of any expenses payable by the

corporation and any underwriting or similar commissions, compenations, or concessions paid or allowed by the corporation in connection with such issue or sale;
.1

(B) to the extent it consists of propert other th cash,
be computed at the fair value of tht propert as determd in good faith by the Board of
Directors; and
(C) if Additional Shaes of Common Stock, Convertble

'.I

Securities (as defined in paragraph (ii) below) or rights or options to purchase either Additiona
I,
I I

Shares of Connon Stock or Convertible Securities ar issued or sold together with other stock

or securities or other assets of the corporation for a consideration which covers both, be computed as the portion of the consideration so received tht may be reasonably determined in
good faith by the Board of Directors to be allocable to such Additional Shaes of Common

I"

Stock, Convertible Securities or rights or options.
(ii) For the purposes of ths subsection (h), the term "Options"

shall mean rights, options or warants to subscribe for, purchae, or otherwise acquir either
t

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Common Stock or Convenible Securties, as defined herein, and the term "Convertible Securities" shall mean any evidences of inebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Coinon Stock. In the event the corporation at

any time or from time to time after the Issue Date shall issue any Options or Convertible Securities or shall fix a record date for the determintion of holders of any class of securities entitled to receive any such Options or Convertble Securities, then the maimum number of
shaes (as set fort in the intrent relating thereto without regard to any provisions contined

.1..

therein for a subsequent adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible Securties an Options therefor, th conversion or exchange of such Convertible Securties, shal be deemed to be Additiona Shares

-.1

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, provided tht Additional Shaes of
Common Stock shall not be deemed to have been issued unless the consideration per sha

1'"
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,i

t'.

(determined pursuant to paragraph (ii) hereof assuming the payment of all consideration required to effect th exercise or conversion of Options or Convertble Securities, as the case may be) of such Additiona Shares of Common Stock would be less than the Conversion Prices in effect on the date of and imediately prior to such issue, or such record date, as the case may be, and provided furter that in any such case in which Additiona Shares of Common Stock are deemed
to be issued:

I

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.. .... . - . ...
STL0005402

(A) no furter adjustment in the Conversion Prices shall

be made upon the subsequent issue of Convertible Securities or shares of Common Stock upon
the exercise of such Options or conversion or exchange of such Convertible Securities;

(B) if such Options or Convertible Securities by their
tenns provide. with the passage of time or otherwise, for any increase in th consideration

payable to the corporation, or decrease in the number of shaes of Common Stock issuable, upon

the exercise, conversion or exchage thereof, the Conversion Prices computed upon the origin
issue thereof (or upon th occurence of a record date with respect threto), and any subseuent
adjustments based thereon, shal, upon any such inrease or decrease becomi effective, be

recomputed to reflect such inrease or decrease inofar as it affects such Options or the rights of
conversion or exchae under such Convertble Securties, which are outstag at such tie;
"I

(C) upon th expirtion of any such Options or any rights

of conversion or exchange undr such Convertible Securties which shal not have been
exercised, the Conversion Prices computed upon the origin issue threof (or upon the
~,

occurrence of a record date with respect thereto), and any subsequent adjustments based thereon,
shall, upon such expiration, be recomputed as if:

I

(I) in the case of Convertible Securities or

I,

Options for Common Stock, the only Additiona Shares of Common Stock issued were the shas

of Common Stock, if any, actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the corporation for the issue of all such Options, whether or not exercised, plus the additiona consideration actually received by th corporation upon such
exercise, or for the issue of all such Convertible Securties which were actually converted or

I

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,i

exchanged, plus the additional consideration, if any, actully received by the corporation upon such conversion or exchange; and
(i) in the cas of Options for Convertble

,i'

Securties, only the Convertible Securities, if any, actuly issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the corporaon for the Additional Shas of Common Stock deemed to have been then issued was the consideration actully received by the corporation for the issue of all such Options, whether or not exercised,
plus the consideration deemed to have been received by th corporation (determed pursu to

(I

paragraph (ii) above) upon the issue of the ,Convertible Securities upon th actual exercise of such Options.

(D) no readjustment pursuant to clause (B) or (C) above
shall have the effect of increasing the Conversion Prces; to an amount which exceeds the lower
I

, ., .

of: (i) the Conversion Prices on the originl adjustment date, or (ii) the Conversion Prces tht would have resulted from any other issuace of Additional Shares of Common Stock between the
original adjustment date and such readjustment date; and

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CONFIDENTIAL

STI_0005403

(E) in the case of any Options which expir by their

terms not more than thrty (30) days after the date of issue thereof, no adjustment of the

Conversion Prices shall be made until the expiration or exercise of all such options, whereupon such adjustment shall be made in the same maner provided in clause (C) above.
(i) Definition. The term "Additional Shares of Common Stock" as

used herein shall mean all shas of Common Stock issued by the corporation aftr the Issue
Date, whether or not subsequently reacquired or retired by the corporation, other th:

(i) shaes of Common Stock issued upon conversion of the Preferred Stok; (ii) shaes of Common Stock issued pursuat to stock option plan, stok purchae plan. stock bonus plan or

othr forms of stock incentive plans for officers, employees, constats and/or directors of ths

corporation; (ii) shes of Common Stock issued as a dividend or distrbution on Preferred Stock; (iv) shas of Common Stock or options or warants to purcha Common Stock issued to
equipment lessors or intitttional lenders purt to leasing or other fincing tractions

approved by the Board of Directors, or (v) shas of Common Stock that are issued purt to

I,

options or warants outstading as of the Issue Date.
however, shall be made in amount less than $0.05. but any such lesser adjustments shall be
cared forward and shall be made at the time together with the next subsequent adjustmnt

(j Minium Adjustment. No adjustment of the Conversion Prices,

Ii

which together with any adjustments so cared forward shall amount to $0.05 or more.

(k) Certificate of Adjusttent. Upon the occurence of each adjustment
or readjustment of the Conversion Prices pursut to ths Section 3, ths corporation shal

promptly compute such adjustment or readjustment in accordance with the tenn hereof an

l
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prepare and furnsh to each holder of Preferred Stock, as applicable, a certificate, signed by the

Chair of the Board, the President or the Chief Fincial Officer, settg fort such
adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based.
(1)

Notices of Record Date. If:
(i) ths corporation shall set a record date for the purse of

i

entitling the holders of its shares of Common Stock to receive a dividend, or any other
distrbution, payable otherwise than in cash;
l

(ii) ths corporation shall set a record date for the purpose of

I'"

entitling the holders of its shares of Common Stock to subscribe for or purchase any shares of any class or to receive any other rights;
(ii) thre shall occur any capital reorganation of ths

1

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corporation, reclassifcation of the shares of ths corporation (other th a subdivision or combintion of its outstanding Common Stock), consolidation or merger of ths corporation with

NMGOSK. W42(SP3)

03/28(9S
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CONFIDENTIAL

STI_0005404

or into

another corporation, or conveyance of all or substantially all of the assets of ths

corporation to another corporation; or
(iv) there shal occur a volunta or involuntary dissolution,

liquidation, or winding up of this corporation;
.1

then, and in each such case, th corporation shall case notice to be given to th holders of

record of the outstading shares of the Preferred Stock in the maner provided in Section 7
I

hereof, at least twenty (20) days prior to the dates hereinr specifed, a notice stati th date

which (x) has been set as the record date for the purose of such dividend, distrbution, or rights, or (y) such reclassification, reorganation, consolidation, merger, conveyance, dissolution, liquidation, or wining up is to tae plac an th date, if any is to be frxed, as of
which holders of Common Stock of record shal be enttled to exchage their shas of Common

Stock for securities or other propert deliverable upon such reclassification, reorgaiation, consolidation, merger, conveyance, dissolution, liquidation, or winding up
'I

(m) Fractional Shares. No fractional shares of Common Stock shal be
issued upon conversion of Preferred Stock. In lieu of any fractional shars to which the holder
would otherwise be entitled, the corporation shall pay cash equal to the product of such frction

multiplied by the fair market value of one share of the corporation's Coinon Stock on the date

of conversion, as determined in good faith by the Board of Dirctors.
~.

(n) Reservation of Stock Issuable Upon Conversion. Ths corporation
,~

Î
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shall at all ties reserve and keep available, out of its authorized but unissued Common Stock, solely for the purpose of effecting the conversion of Series A Preferred Stock and the Series B Preferred Stock, the full number of shares of Common Stock deliverable upon the conversion of
all shaes of the Series A Preferred Stock and the Series B Preferred Stock from time to time

outstading. This corporation shall from time to time, in accordce with the laws of the State of Delaware, inrease the authorized amount of its Common Stock ü at any time th authorid
number of shares of Common Stock remaing unssued shal not be sufficient to pennt the conversion of all of the shaes of the Series A Preferred Stock an the Series B Preferred Stok

.1

.j.

at the time outstaing.
(0) Payment of Taxes. The corporation shal pay any an all issue and

other taes that may be payable in respect of any issue or delivery of Common Stock on
I

conversion of the Series A Preferred Stock and the Series B Preferred Stok pursuant hereto.
Ths corporation shall not, however, be requird to pay any ta which may be payable in respect

I""

of any tranfer involved in the issue and delivery of Common Stock in a nae other th tht in
which the Series A Preferred Stock or Series B Preferrd Stock, as th case may be, so

converted was registered, and no such issue or delivery shall be made uness and until the person requesting such issue ,has paid to ths corporation the amount of any such ta.

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NMOO5K.W42(5P3) 03/28195

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,

I

'_9 .. .
CONFIDENTIAL

STL0005405

a majority of the outstading shaes of each series of Preferred Stock, ths corporation wil not,
by amendment of its Certificate of Incorporation or thugh any reorgantion, trnsfer of

(p) No Impairment. Except upon the afIirative vote of the holders of

assets, consolidation, merger, dissolution, issue or sale of securities or any other volunta action, avoid or seek to avoid th observance or performce of any of the term to be observed or performed hereunder by this corporation, but wil at all times in good faith assist in the
,I

caing out of all the provisions of th Section 3 and in the ta. of all such action as may be

necessary or appropriate in order to protect the conversion rights of the holders of the Preferred
Stock againt impairment.

4. Voting Rights.
.1

(a) Except as otherwise required by law, th holder of each shae of Common Stock issued and outstading shl have one vote, an the holder of each sha of

Preferred Stock issued and outstading shall be entitled to the number of votes equal to the

number of shas of Conuon Stock into which such shas of Preferred Stock could be
I
convened at the record date for determintion of the stockholders entitled to vote

on such

matters or, if no such record date is estalished, at the date such vote is tan or any writtn
,I

consent of stockholders is solicited, such votes to be counted together with all other shaes of stock of the corporation having general voting power and not separately as a class.
(b) Notwithtading anytg to th contr contained in subparagraph

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1

(as adjusted for stock splits and like events) of are outstanding, the holders of the Series A Preferred Stock, voting as a single class, shall by majority vote be entitled to elect one (1) member to the Board of Directors of the corporation. Except as otherwise provided by law such director may be removed only by a vote of the holders of a majority of the then outstading Series A Preferred Stock. A successor to fill the position on the Board of Dirctors which is elected exclusively by vote of the holders of the Series A Preferred Stok and which vacancy occurs for any reason shall be filed exclusively by a vote of the holders of a majority of the Series A Preferr Stock, voting as a single class.
(a) above, so long as at least 200,00 shares Series A Preferred Stock

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.1

(c) Notwithtading anythg to the contrar contained in subpargraph
(a) above, so long as at least 200,000 shaes (as adjusted for stock splits an like events) of
Series B Preferred Stock are outstading, the holders of the Series B Preferred Stock, voti as a

single class, shall by majority vote be entitled to elect two (2) members to the Board of Directors of the corporation. Except as otherwise provided by law such directOrs may be
1\." i

removed only by a vote of the holders of a majority of the then outstaing Series B Preferred

Stock. A successor to fiIl a position on the Board of Directors which is elected exclusively by
vote of the holders of the Series B Preferred Stock and which vacany occurs for any reason
I l"

shall be filed exclusively by a vote of the holders of a majority of the Series B Preferred Stock, voting as a single class.

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NMOO5K.W42(5P3) 03128/95
I

-13-

I

CONFIDENTIAL

STL0005406

(as adjusted for stock splits and like events) of Preferred Stock are outstanding, the corporation shall not, without.
5. Protective Provisions. So long as at least 100,00 shares

first obtaing the approval (by vote or written consent, as provided by law) of the holders of at

. least a majority of the outstading shaes of Preferred Stock do anythg which:
(i) adversely alters or changes the rights, preferences or privileges of

the Preferrd Stok,
(ii) creates any class or series of stock having any preferene over or

being on a party with the Preferr Stock,
....
'. .

(ii) reclassifes any Common Stock ino shaes havin preference over
I

or being on a parity with the Preferrd Stock,
(iv) applies any of th corporation's assets to the payment of dividends

or the redemption of Common Stock other th repurchaes of shas from employees or
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consultats upon termintion of employment or services, or
(v) results in a consolidation or merger with or ino any other

corporation or the sale or other tranfer in a single transaction or a series of related traactions

::1 ¡

of all or substantially all of the assets of ths corporation, or otherwise results in the reorganation of ths Corporation uness th stockholders or ths corporation imediately prior to any such transaction are holders of a majority of the voting securities of the surviving or
acquirig corporation imediately thereaftr.

l

6. Status of Converted Stock. In cae any shas of Preferred Stock shall be

converted pursuant to Section 3 hereof, the shares so converted shal assume the status of
authorized but undesignated and unisued shas of Preferr Stock.

7. Notices. Any notice requied by th provisions of th Restated Certcate

. ! '.

of Incorpration, except as otherwise specificaly provided herein, to be given to th. holders of shares of Preferred Stock or Common Stock shal be in writing and may be delivered by personal service or sent by telegraph or cable or sent by registered or certified mail, retu receipt requested, with postage thereon fully prepaid. All such communcations shall be adressed to each holder of record at its address appearing on the books of his corporation. If sent by telegraph or cable, a confined copy of such telegraphic or cabled notice shal promptly be sent by mail (in the maner provided above) to the holders. Servce of any such cammunication made only by mail shall be deemed complete on the date of actual delivery as
shown by the addressee's registry or certification receipt or at the expiration of the tld (3rd)

business day after the date of mailing, whichever is earlier in time.
i I, .

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03128195

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CONFIDENTIAL

STL0005407

l

(C) Conuon Stock
1. Relative Rights of Preferrd Stock and Common Stock. All prefernces.

voting powers, relative, paricipating, optional or other special rights and privileges, and qualifcations, limitations. or restrctions of the Common Stock ar expressly made subject and :
subordinte to those that may be fixed with respect to any shas of th Preferred Stock.
2. Voting Rights. Except as otherwise required by law or th Restte

Certficate of Incorporation, each holder of Common Stock sh have one vote in respect of
t

each shae of stock: held by hi of record on th books of th corporation for th elecon of

.1

directors and on all matters submitted to a vote of stockholders of the corpration.
3. Dividends. Subject to the preferential nghts of th Preferrd Stok, the

holders of shas of Common Stock shal be enttled to receive, when and if declard by the

Board of Dirctors. out of the assets of the corporation which ar by law available threfor,
dividends payable either in cash. in propert or in shaes of capita stock.

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ARTICLE V
I

I.

The corporation is to have perpetu existence.

ARTICLE VI
I

In furterance and not in limitation of the powers conferrd by the laws of the State of
Delaware:

..I"

(A) The Board of Dirctors of the corporation is expressly authoried to adopt, amend
"I

or repeal the Bylaws of the corporation.

(B) Elections of directrs need not be by wrttn ballot uness the Bylaws of th
corporation shal so provide.

(C) The books of the corporation may be ket at such place with or without th

, , ,"

I

State of Delaware as the Bylaws of the corporation may provide or as may be designte from

time to time by the Board of Directors of the corporation.

(D) The number of directors which constitute the whole Board of Directors of th corporation shal be determed in accordane with the Bylaws of th corporation.
i
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(E) Subject to th provisions of Arcle lV, Section 4 hereof, vacaies create by the

resignation of one or more members of th Board of Directors an newly created dirctorships,

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NMGO.W42(5P3)
03128/95

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CONFIDENTIAL

STI_0005408

created in accordance with the Bylaws of ths corporation, may be filled by th vote of a

majority, although less man a quoru, of the dirctors then in offce, or by a sole remaing

dirctor.
ARTICLE VI
i

I

(a) To th fullest extent permtted by the Delawar Genera Corporation Law as the same exists or as may hereafter be aindd, a dirctor of th corporaion shal not be personaly

.~

liable to the corporation or its stockholders for moneta dages for breach of fiduciar duty as :
a director.

l

(b) The corporation may indemnfy to the fulest extent pennned by law any person made or theatened to be made a pat to an action or proceeding, whether cri, civil,
adminstrative or investigative, by reason of the fact tht he, hi testator or inestate is or was a

dirctor,. offcer or employee of the corporation or any predecessor of the corporation or serves

or served at any other enterprie as a director. offcer or employee at the request of the corporation or any predecessor to the corporation.
(c) Neither any amendment nor repeal of ths Aricle VI, nor the adoption of any

I,

provision of ths corporation's Certificate of Inorporation inconsistnt with ths Arcle vn, shall eliminte or reduce the effect of ths Aricle VI, in respect of any maer occurrg, or any
action or proceeding accruing or arising or tht, but for ths Arcle VI, would accrue or are,
prior to such amendment, repeal or adoption of an

inconsistent provision.

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ARTICLE VIII

The corporation reserves the right to amend or repeal any provision contained in ths
Restated Certifcate of Incorporation, in the maer now or hereafter prescribed by sttute, and all rights confem:d upon a stockholder herein ar grated subject to th reservation. II

'i
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.Il~

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03128/9S

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CONFIDENTIAL

STI_0005409

THE UNDERSIGNED, being the President'of ths corporation, does make ths
Certficate, hereby declaring and certifying that ths is his act and deed an the facts herein

stated are true, and accordingly, has hereunto set his had ths 4th day of Apri, 1995.

B

Attest:

.' \,".

\.

NMGOSK. W42(SPJ)

0312819

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CONFIDENTIAL

STI_0005410