Amended and Restated Certificate of Incorporation

 ENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
[NAME OF COMPANY]

[_______________], a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:

FIRST: The name of the Corporation is [_______________]. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on ____________________, ____.

SECOND: Pursuant to Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, this Amended and Restated Certificate of Incorporation restates and integrates and further amends the provisions of the Certificate of Incorporation of the Corporation.

THIRD: The text of the original Certificate of Incorporation and any amendment and restatement thereto is hereby amended and restated to read in its entirety as follows:

ARTICLE I

The name of the Corporation is ______________________________.

ARTICLE II

The address of the registered office of the corporation in the State of Delaware is _____________________, in the City of ______________, County of __________________, and the name of its registered agent at that address is ______________________.

ARTICLE III

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

ARTICLE IV

1. The Corporation is authorized to issue __________ shares of its capital stock, which shall be divided into two classes known as Common Stock, $.001 par value, and Preferred Stock, $.001 par value, respectively. The total number of shares of Common Stock which the Corporation is authorized to issue is ______. The total number of shares of Preferred Stock which the Corporation is authorized to issue is ________.
   
   
2. The Preferred Stock may be divided into such number of series as the Board of Directors may determine. The Board of Directors is authorized to determine and alter the rights, preferences, privileges and restrictions granted to and imposed upon any wholly unissued series of Preferred Stock, and to fix the number of shares of any series of Preferred Stock and the designation of any such series of Preferred Stock. The Board of Directors, within the limits and restrictions stated in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any series, may increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series subsequent to the issue of shares of that series. The first series of Preferred Stock shall be designated as Series A Preferred Stock (the “Series A Preferred Stock”), which shall consist of ____________________ shares, and shall have the rights, preferences, privileges and restrictions hereinafter provided. [Upon the filing of this __________ Amended and Restated Articles of Incorporation, each outstanding share of Common Stock shall be split and converted into ____ shares of Common Stock.]
   
   
3. The Corporation shall from time to time in accordance with the laws of the State of Delaware increase the authorized amount of its Common Stock if at any time the number of shares of Common Stock remaining unissued and available for issuance shall not be sufficient to permit conversion of the Preferred Stock in accordance with the applicable conversion provisions set forth herein.

ARTICLE V

The rights, preferences, privileges and restrictions granted to or imposed upon the respective classes of the Corporation’s shares of capital stock or the holders thereof are as follows:

1. Dividend Rights

a. The holders of the then outstanding Series A Preferred Stock shall be entitled to receive, out of any funds legally available therefor, when and as declared by the Board of Directors, cumulative dividends at an annual rate of __________ percent (__%) of the original Series A Preferred Stock purchase price of ______ dollar ($________) (the “Original Series A Issue Price”) on each then outstanding share of Series A Preferred Stock, payable in preference and priority to any payment of any dividend on any shares of Common Stock of the Corporation, when and as declared by the Board of Directors (the “Cumulative Dividends”). If declared by the Board, such Cumulative Dividends on the Series A Preferred Stock shall be payable annually on each ________ __, commencing on ___________, ____. [The right to such dividends on the Series A Preferred Stock shall not be cumulative, and no rights shall accrue to the holders of Series A Preferred Stock by reason of the fact that dividends on such shares are not declared or paid in any prior year] [or] [The right to such dividends on the Series A Preferred Stock shall be cumulative, and shall be declared and paid upon the occurrence of any of the following events:

1. on redemption of the Series A Preferred Stock;
   
   
2. on any event described in Article V.2 hereof;
   
   
3. on the public offering and close of the sale of any of the Corporation’s securities in a public offering which results in the automatic conversion of the Series A Preferred Stock pursuant to Article V.5.1(b) hereof; or
   
   
4. when and as declared by the Board.] Cumulative Dividends, if paid, or if declared and set apart for payment, must be paid on, or declared and set apart for payment on, all then outstanding shares of Series A Preferred Stock. After such Cumulative Dividends on the Series A Preferred Stock shall have been declared and paid or set apart for any one year, if the Board shall elect to declare additional dividends out of funds legally available therefor in excess of the Cumulative Dividends on the Series A Preferred Stock for the year in question, such additional dividends shall be declared in equal amounts per share on all then outstanding shares of the Series A Preferred Stock and the Common Stock;

provided, however, that notwithstanding the foregoing, no dividends shall be paid or declared by the Corporation on the Common Stock without the prior written consent of the holders of at least a majority of the then outstanding Series A Preferred Stock to the payment of any such dividends.

b. Subject to the rights of holders of all classes of stock at the time outstanding having prior rights as to dividends, the holders of the Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of any assets of the Corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors. No dividend shall be paid with respect to the Common Stock during any year until the Cumulative Dividends owed on the Series A Preferred Stock shall have been paid or declared and set apart during that year.

c. Dividends shall be paid by forwarding a check, postage prepaid, to the address of each holder (or, in the case of joint holders, to the address of any such holder) of the Series A Preferred Stock and/or the Common Stock, as applicable, as shown on the books of the Corporation, or to such other address as such holder specifies for such purpose by written notice to the Corporation.

2. Liquidation Rights

In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of each share of Series A Preferred Stock then outstanding shall be entitled to receive, out of the assets of the Corporation available for distribution to its stockholders, before any amount shall be paid to holders of Common Stock, the Original Series A Issue Price for each share of Series A Preferred Stock (appropriately adjusted for any stock splits, stock dividends, combinations and similar events), plus their Cumulative Dividends (the “Liquidation Preference”). If, upon the occurrence of the liquidation, dissolution or winding up of the Corporation, the assets and surplus funds distributed among the holders of Series A Preferred Stock shall be insufficient to permit the payment to such holders of their Liquidation Preference, then the entire assets and surplus funds of the Corporation legally available for distribution shall be distributed ratably among the holders of Series A Preferred Stock. If, upon the occurrence of the liquidation, dissolution or winding up of the Corporation, after the payment to the holders of Series A Preferred Stock of their Liquidation Preference, assets or surplus funds remain in the Corporation, the holders of Series A Preferred Stock and the Common Stock shall be entitled to share in all such remaining assets and surplus funds in the same manner as if all shares of Series A Preferred Stock had been converted into Common Stock at the then effective Conversion Price (as defined in Section 5 below) immediately prior to the liquidation, dissolution or winding up of the Corporation.

At the election of the holders of a majority of the outstanding shares of the Series A Preferred Stock, for purposes of this Section 2, a liquidation, dissolution or winding up of the Corporation shall be deemed to be occasioned by, and to include, the Corporation’s sale, conveyance or disposition of all or substantially all of its assets or the effectuation by the Corporation (or third party acquirors) of a transaction or series of related transactions in which more than 50% of the voting power of the Corporation is disposed of, excluding transfers by the holders of the Series A Preferred Stock not...