EFTA01143227.pdf

Delaware PAGE The First State I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "FOUNDATION MEDICINE, INC.", FILED IN THIS OFFICE ON THE TENTH DAY OF SEPTEMBER, A.D. 2012, AT 12:34 O'CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEWCASTLE COUNTY RECORDER OF DEEDS. jeffreywAtaxicsecrewyorstate 4725817 810O AUTHE TION: 9833193 121013684 DATE: 09-10-12 You may verify this certificate online at corp.delaware.gov/authver.shtml EFTA01143227  State of Delaware Secretary of State Division oirCorporations Delivered 12:34 PM 09/10/2012 FILED I2:34 PM 09/10/2012 SIN 121013684 - 4725817 FILE FIFTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF FOUNDATION MEDICINE, INC. Foundation Medicine, Inc. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "GCL"), does hereby certify as follows: 1. The name of this Corporation is Foundation Medicine, Inc. The original Certificate of Incorporation of the Corporation was filed with the Delaware Secretary of State on November 12, 2009 (the "Certificate") under the name Foundation Genomics, Inc. The Certificate was amended and restated on March 29, 2010 (the "Amended and Restated Certificate of incorporation"), as amended by a Certificate of Amendment dated October 28, 2010, and as further amended by a Certificate of Amendment dated May 5, 2011. The Amended and Restated Certificate of incorporation was amended and restated on August 8, 2011 (the "Second Amended and Restated Certificate of Incorporation"). The Second Amended and Restated Certificate of Incorporation was amended and restated on August 23, 2011 (the "Third Amended and Restated Certificate of Incorporation"). The Third Amended and Restated Certificate of incorporation was amended and restated on April 18, 2012 (the "Fourth Amended and Restated Certificate of Incorporation"). 2. This Fifth Amended and Restated Certificate of Incorporation amends, restates and integrates the provisions of the Fourth Amended and Restated Certificate of Incorporation and has been duly adopted in accordance with the provisions of Sections 242 and 245 of the GCL. 3. Pursuant to Section 228(a) of the GCL, the holders of outstanding shares of the Corporation, having not less than the minimum number of votes that would be necessary to authorize or take such actions at a meeting at which all shares entitled to vote thereon were present and voted, consented to the adoption of the aforesaid amendments without a meeting, without a vote and without prior notice and that written notice of the taking of such actions is being given in accordance with Section 228(e) of the GCL. 4. The text of the Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows: LBW/43835151 EFTA01143228  FIFTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF FOUNDATION MEDICINE, INC. ARTICLE I Name The name of the Corporation is Foundation Medicine, Inc. (the "Corporation"). ARTICLE II Registered Agent The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company. ARTICLE Ill Purpose The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE IV Capital Stock A. Capital Stock. Authorized Sham. The total number of shares of all classes of stock which the Corporation shall have authority to issue is: (a) 90,000,000 shares of Common stock, par value of 50.0001 per share ("Common Stock"); and (b) 62,755,304 shares of Preferred Stock of the Corporation, par value of $0.0001 per share (the "Preferred Stock"). 2 Stock Rights and Preferences. The Common Stock and Preferred Stock authorized hereunder shall have the voting powers, preferences and relative, participating, optional and other special rights, qualifications, limitations and restrictions as follows: 2 LIBC/4383513.7 EFTA01143229 B. Common Stock. General. The voting, dividend and liquidation and other rights of the holders of the Common Stock are subject to and qualified by the rights, powers and preferences of the holders of Preferred Stock. 2 Voting. Except as provided in this Fifth Amended and Restated Certificate of Incorporation or by applicable law, holders of the Common Stock are entitled to one vote for each share held. There shall be no cumulative voting. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more series of Preferred Stock that may be required by the terms of this Fifth Amended and Restated Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(bX2) of the Delaware General Corporation law. 3 Dividends. Dividends may be declared and paid on the Common Stock from funds lawfully available therefor if, as and when determined by the Board of Directors of the Corporation (the "Board of Directors") in their sole discretion, subject to provisions of law, any provision of this Fifth Amended and Restated Certificate of Incorporation, as amended from time to time, and subject to the relative rights and preferences of any shares of Preferred Stock authorized and issued hereunder. 4 Liquidation. Upon the dissolution or liquidation or winding up of the Corporation, whether voluntary or involuntary, holders of Common Stock will be entitled to receive pro rata all assets of the Corporation available for distribution to its stockholders, subject, however, to the liquidation rights of the holders of Preferred Stock authorized and issued hereunder. C. Preferred Stock. 43,950,000 shares of the authorized Preferred Stock of the Corporation are hereby designated Series A Convertible Preferred Stock (the "Series A Preferred Stock") and 18,805,304 shares of the authorized Preferred Stock of the Corporation are hereby designated Series B Convertible Preferred Stock (the "Series B Preferred Stock"), in each case with the following rights, preferences, powers, privileges and restrictions, qualifications and limitations. Dividends. The holders of Preferred Stock shall be entitled to dividends out of the Corporation's assets legally available therefor only as. when and if declared by the Board of Directors. In addition, the Corporation shall not declare, pay or set aside any dividends on any shares of capital stock of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in this Fifth Amended and Restated Certificate of Incorporation) the holders of Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Preferred Stock in an amount at least equal to the sum of: (i) in the case of a dividend on shares of Preferred Stock, the aggregate amount of any dividend declared on such share of Preferred Stock and not previously paid plus (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock (including without limitation the 3 LIBC/4383515.7 EFTA01143230 Series A Preferred Stock and the Series B Preferred Stock), that dividend per share of Preferred Stock as would equal the product of (I) the dividend payable on each share of such class or series determined, if applicable, as if all such shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of such series ofPreferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such series) and (2) multiplying such fraction by an amount equal to the applicable Original Issue Price (as defined below); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Preferred Stock pursuant to this Subsection I shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Preferred Stock dividend, for each of the Series A Preferred Stock and Series B Preferred Stock, respectively. The "Series A Original Issue Price" shall mean $1.00 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock. The "Series B Original Issue Price" shall mean $2.26 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock. The "Original Issue Price" shall mean the Series A Original Issue Price in the case of the Series A Preferred Stock and the Series B Original Issue Price in the case of the Series B Preferred Stock. 2 Liquidation, Dissolution or Winding Up: Certain Mergers. Consolidations and Asset Sales. (a) Payments to Holders of Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, on a pari passu basis andbefore any payment shall be made to the holders of Common Stock or any other class or series of stock ranking on liquidation junior to the Preferred Stock by reason of their ownership thereof, an amount per share equal to the applicable Original Issue Price, plus any dividends declared but unpaid thereon. The aggregate amount of all preferential amounts required to be paid to the holders of Series A Preferred Stock pursuant to this subsection 2(a) shall be hereafter referred to as the "Series A Liquidation Amount". The aggregate amount of all preferential amounts required to be paid to the holders of Series B Preferred Stock pursuant to this subsection 2(a) shall be hereafter referred to as the "Series B Liquidation Amount". if upon any such liquidation, dissolution or winding up of the Corporation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Preferred Stock the full amount to which they shall be entitled under this Subsection 2(a), the holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. 4 LUICA13$35115.7 EFTA01143231  (b) Remaining Assets. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after the payment of all preferential amounts required to be paid to the holders of Preferred Stock pursuant to subsection (a) above, any remaining assets of the Corporation shall be distributed with equal priority and pro rata among the holders of the Corporation's Common Stock. (c) Deemed Liquidation Events. (i) Any of the following events shall be deemed to be a liquidation of the Corporation (a "Deemed Liquidation Event"), including for purposes of this Section 2 unless the holders of at least two-thirds of the shares of Preferred Stock then outstanding voting or consenting together as a single class on an as converted to Common Stock basis (the "Required Holders") elect otherwise by written notice given to the Corporation at least two (2) days prior to the effective date of any such event: (A) a merger or consolidation in which (I) the Corporation is a constituent party or (II) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation, except any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are convened or exchanged for shares of capital stock which represent, immediately following such merger or consolidation a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation (provided that for the purpose of this Subsection Vail, all shares of Common Stock issuable upon exercise of Options (as defined below) outstanding immediately prior to such merger or consolidation or upon conversion of Convertible Securities (as defined below) outstanding immediately prior to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable, convened or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of Common Stock are converted or exchanged); (B) the sale, lease, transfer, exclusive license (without material field limitation) or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Corporation; or 5 LIBC/4333515.7 EFTA01143232  (C) the sale, exchange, transfer or other disposition, in a single transaction or series of related transactions, by the stockholders of the Corporation of voting control of the Corporation. (ii) The Corporation shall not have the power to effect any transaction constituting a Deemed Liquidation Event pursuant to Subsection 2(c)(i)(A)(1) above unless the agreement or plan of merger or consolidation for such transaction (the "Merger Agreement") provides that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2(a) and 2(b) above. ' (iii) In the event of a Deemed Liquidation Event pursuant to Subsection 2(c)(i)(AWII). (B) or (C) above, if the Corporation does not effect a dissolution of the Corporation under the Delaware General Corporation Law (the "General Corporation Law") within thirty (30) days after such Deemed Liquidation Event, then (A) the Corporation shall deliver a written notice to each holder of Preferred Stock no later than the thirtieth (30°) day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (B) to require the redemption of such shares of Preferred Stock (the "Redemption Notification"), and (B) if the holders of at least two-thirds of the shares of Preferred Stock then outstanding, determined on an as convened to Common Stock basis, so request in a written instrument delivered to the Corporation not later than forty-five (45) days after such Deemed Liquidation Event (the "Redemption Request"), the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board of Directors), together with any other assets of the Corporation available for distribution to its stockholders (the "Available Proceeds") to redeem, to the extent legally available therefor, on the sixtieth (60th) day after such Deemed Liquidation Event (the "Liquidation Redemption Date"), all outstanding shares of Preferred Stock at a price per share equal to the Series A Liquidation Amount in the case of the Series A Preferred Stock or the Series B Liquidation Amount in the case of the Series B Preferred Stock (the "Liquidation Redemption Price"). Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Preferred Stock, the Corporation shall redeem a pro rata portion of each holder's shares ofPreferred Stock to the fullest extent of such Available Proceeds, based on the respective amounts which would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares, and shall redeem the remaining shares to have been redeemed as soon as practicable after the Corporation has funds legally available therefor. On or before the Liquidation Redemption Date, each holder of shares of Preferred Stock to be redeemed on such Liquidation Redemption Date, unless such holder has exercised his, her or its right to convert such shares as provided in Section 4, shall surrender the certificate or certificates representing such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, in the manner and at the place designated in the Redemption Notification, and thereupon the Liquidation Redemption Price shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof. In the event less than all of the shares of Preferred Stock represented by a certificate 6 L1BC/43835 15.7 EFTA01143233 are redeemed, a new certificate representing the unredeemed shares of Preferred Stock shall promptly be issued to such holder. If the Redemption Notification shall have been duly given by the Corporation and the Redemption Request duly received by the Corporation, and if on the Liquidation Redemption Date, the entire Liquidation Redemption Price payable upon redemption of the shares of Preferred Stock to be redeemed on such Liquidation Redemption Date is paid or tendered for payment or deposited with an independent payment agent so as to be available therefor in a timely manner, then notwithstanding that the certificates evidencing any of the shares of Preferred Stock so called for redemption shall not have been surrendered, dividends with respect to such shares of Preferred Stock shall cease to accrue after such Liquidation Redemption Date, and all rights with respect to such shares shall forthwith after the Liquidation Redemption Date terminate, except only the right of the holders to receive the Liquidation Redemption Price without interest upon surrender of their certificate or certificates therefor. Prior to the distribution or redemption provided for in this Subsection 2(cXiii), the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in the ordinary course ofbusiness. (iv) The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity. The value of such property, rights or securities shall be determined in good faith by the Board of Directors. (d) Allocation of Contingent Payments. In the event of a Deemed Liquidation Event, if any portion of the consideration payable to the stockholders of the Corporation is (i) placed into escrow (the "Escrowed Initial Consideration") and/or (ii) subject to contingencies (the "Contingent Consideration," which term, for clarity, excludes any Escrowed Initial Consideration), then the definitive agreement with respect to such Deemed Liquidation Event shall provide that (a) all consideration other than the Contingent Consideration (the "Initial Consideration," which term, for clarity, includes any Escrowed Initial Consideration) shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections al), AU and al as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event and (b) any Contingent Consideration which becomes payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2(a) aun and 21c1 after taking into account the previous payment of the Initial Consideration and any previously paid Contingent Consideration as part of the same transaction. (e) No Necessity to Convert. Notwithstanding the foregoing, upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, including any Deemed Liquidation Event, (a "Liquidation Event"), each holder of a series of Preferred Stock shall be entitled to receive, for each such share of Preferred Stock then held, out of the proceeds available for distribution, on a series-by-series basis, the greater of (i) the aggregate amount of cash, securities or other property to which such holder would be entitled to receive with respect to such shares in a Liquidation Event pursuant to Subsection 2(a) and, if applicable, Subsections 2(b) and (21(d1 (but without giving effect to this Subsection 2(e)) or (ii) the aggregate amount of cash, securities or other property to which such holder would be entitled to receive in a Liquidation 7 1.1B04383515.7 EFTA01143234 Event with respect to such shares if such shares of Preferred Stock had actually been converted to Common Stock immediately prior to such Liquidation Event, giving effect to this Subsection 2(e). For purposes of this Fifth Amended and Restated Certificate of Incorporation, the terms "Series A Liquidation Amount" and "Series B Liquidation Amount" shall encompass such greater amount. 3 Voting. (a) On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Preferred Stock entitled to vote thereon shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the provisions of Subsections 3(b) a(e), msu or Rd below, holders of Preferred Stock shall vote together with the holders of Common Stock, and with the holders of any other series of Preferred Stock the terms of which so provide, as a single class. (b) The holders of record of the shares of Series A Preferred Stock, exclusively and as a separate class, shall be entitled to elect up to three (3) directors of the Corporation (the "Preferred Stock Directors"). Any director elected as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the Series A Preferred Stock, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of Series A Preferred Stock fail, or pursuant to any agreement among the stockholders arc ineligible, to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as.a separate class, pursuant to the first sentence of this Subsection 3(b), then any directorship not so filled shall remain vacant until such time as the holders of the Series A Preferred Stock elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the holders of the Series A Preferred Stock, voting exclusively and as a separate class. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, shall be entitled to elect the balance of the total number of directors of the Corporation. A vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 3(131. The rights of the holders of the Series A Preferred Stock under the first sentence of this Subsection 3(b) shall terminate on the earlier to occur of: (i) the closing of a firm commitment underwritten initial public offering pursuant to an effective registration statement filed under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock resulting in the automatic conversion of all outstanding shares of Series A Preferred Stock to Common Stock; or (ii) the closing of a Deemed Liquidation Event, provided that in the case of a sale of assets, such termination shall occur only upon completion of the distribution of all proceeds of such sale to the stockholders of the Corporation in accordance with this Fifth Amended and Restated Certificate of Incorporation. 8 LIBC/4383515.7 EFTA01143235  (c) At any time when at least nine hundred fifty thousand (950,000) shares of Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock) are outstanding, except where the vote or written consent of the holders of a greater number of shares of the Corporation is required by law or by this Fifth Amended and Restated Certificate of Incorporation, and in addition to any other vote required by law or this Fifth Amended and Restated Certificate of Incorporation, without the written consent or affirmative vote of the Required Holders, given in writing or by vote at a meeting, the Corporation shall not, either directly or indirectly or by amendment, merger, consolidation, capital reorganization or otherwise, and any such transaction entered into without such consent or vote shall be null and void ab initio and of no force or effect: (i) Alter, amend, repeal or change the rights, preferences or privileges of the Series A Preferred Stock or the Series B Preferred Stock; or (ii) Amend or repeal any provision of, or add any provision to or alter, the Corporation's Certificate of Incorporation or By-laws; or (iii) Create, or authorize the creation of, or issue or obligate itself to issue, shares of any additional class or series of capital stock, unless the same ranks junior to the Series A Preferred Stock and the Series B Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation and with respect to the payment of dividends and unless the same has no redemption rights, or increase or decrease the number of authorized shares of Series A Preferred Stock or Series B Preferred Stock or increase or decrease the number of authorized shares of any additional class or series of capital stock unless the same ranks junior to the Series A Preferred Stock and the Series B Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation and with respect to the payment of dividends and unless the same has no redemption rights, increase or decrease the par value of the Series A Preferred Stock or the Series B Preferred Stock, or create or authorize any obligation or security convertible into shares of any class or series of stock unless the same ranks junior to the Series A Preferred Stock and the Series B Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation and with respect to the payment of dividends and unless the same has no redemption rights; or • (iv) Pay or declare any dividend or make any distribution on any shares of the Corporation's capital stock (except dividends payable solely in shares of Common Stock); or (v) Effect a change of control, liquidation, dissolution, merger, reincorporation, recapitalization, reorganization, consolidation, or sale or other transfer of a substantial part of the Corporation's assets, including without limitation, effect any Deemed Liquidation Event; or (vi) (i) Reclassify, alter or amend any existing security of the Corporation that is pari passu with the Series A Preferred Stock or the Series B Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation or the payment of dividends, if such reclassification, alteration or amendment would render such other security senior to the Series A Preferred Stock or the Series B Preferred Stock in respect of any such right, preference or privilege or if the same would grant such security redemption rights, or 9 L1B04383SIS.7 EFTA01143236 (ii) reclassify, alter or amend any existing security of the Corporation that is junior to the Series A Preferred Stock or the Series B Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation or the payment of dividends, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Series A Preferred Stock or the Series B Preferred Stock in respect of any such right, preference or privilege or would grant such security redemption rights; or (vii) Sell, abandon, transfer, lease, pledge, subject to a lien, encumber, grant a security interest in or otherwise dispose of all or any material portion of the properties or assets of the Corporation, including any exclusive license of intellectual property rights of the Corporation or any subsidiary; or (viii) Change the authorized number of directors of the Corporation; or (ix) Create or authorize the creation of any debt security issuable by the Corporation; or (x) Effect any change to the principal business of the Corporation or any subsidiary or enter into new lines of business not primarily related to the business of the Corporation or any subsidiary on the filing date of this Fifth Amended and Restated Certificate of Incorporation; or (xi) Create or hold capital stock in any subsidiary that is not a wholly- owned subsidiary or dispose of any capital stock of a subsidiary or all or substantially all of the assets of any subsidiary; or (xii) Exchange, repurchase, redeem, retire or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any shares of capital stock of the Corporation; provided, however, that this restriction shall not apply to (A) redemption of the Series A Preferred Stock or the Series B Preferred Stock in connection with a Deemed Liquidation Event in accordance with Section 2 (B) the repurchase of shares of Common Stock from employees, officers, directors, consultants or other persons performing services for the Corporation or any subsidiary pursuant to agreements approved by the Board ofDirectors under which the Corporation has the option to repurchase such shares at the lesser of cost or the fair market value upon the termination of employment or service, and (C) the redemption of any shares of Series A Preferred Stock or Series B Preferred Stock in accordance with Section 6. (d) At any time when at least seven hundred thousand (700,000) shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock) are outstanding, except where the vote or written consent of the holders of a greater number of shares of the Corporation is required by law or by this Fifth Amended and Restated Certificate of Incorporation, and in addition to any other vote required by law or this Fifth Amended and Restated Certificate of Incorporation, without the written consent or affirmative vote of the holders of at least sixty percent (60%) of the shares of Series A Preferred Stock then outstanding, given in writing or by vote at a meeting, the Corporation shall not, either directly or indirectly or by I0 L18OO815I 5.7 EFTA01143237 amendment, merger, consolidation, capital reorganization or otherwise, and any such transaction entered into without such consent or vote shall be null and void ab initio and of no force or effect; (i) Alter, amend, repeal or change the rights, preferences or privileges of the Series A Preferred Stock set forth in this Article IV, provided, that the authorization, designation or issuance of a new series of capital stock with rights, preferences or privileges senior to or on parity with the Series A Preferred Stock, including without limitation any alteration, amendment, repeal or change in the rights or privileges of the Preferred Stock to vote, consent or otherwise act together, shall not be deemed to be an alteration, amendment, repeal or change requiring the written consent or affirmative vote pursuant to this Subsection 3(d) of the holders of at least sixty percent (60%) of the shares of Series A Preferred Stock then outstanding; or (ii) Increase or decrease the number of authorized shares of Series A Preferred Stock. (e) At any time when at least two hundred fifty thousand (250,000) shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) are outstanding, except where the vote or written consent of the holders of a greater number of shares of the Corporation is required by law or by this Fifth Amended and Restated Certificate of Incorporation, and in addition to any other vote required by law or this Fifth Amended and Restated Certificate of Incorporation, without the written consent or affirmative vote of the holders of at least a majority of the shares of Series B Preferred Stock then outstanding, given in writing or by vote at a meeting, the Corporation shall not, either directly or indirectly or by amendment, merger, consolidation, capital reorganization or otherwise, and any such transaction entered into without such consent or vote shall be null and void ab initio and of no force or effect: (i) Alter, amend, repeal or change the rights, preferences or privileges of the Series B Preferred Stock set forth in this Article IV, provided, that the authorization, designation or issuance of a new series of capital stock with rights, preferences or privileges senior to or on parity with the Series B Preferred Stock, including without limitation any alteration, amendment, repeal or change in the rights or privileges of the Preferred Stock to vote, consent or otherwise act together, shall not be deemed to be an alteration, amendment, repeal or change requiring the written consent or affirmative vote pursuant to this Subsection 3(e) of the holders of at least a majority of the shares of Series B Preferred Stock then outstanding; or (ii) Increase or decrease the number of authorized shares of Series B Preferred Stock. 4 Optional Conversion. The holders of the Preferred Stock shall have conversion rights as follows (the "Conversion Rights"): (a) Right to Convert. Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing (i) the applicable Original Issue Price by (ii) 11 LIBC/4383515.7 EFTA01143238 the applicable Conversion Price (as defined below) in effect at the time of conversion. The "Series A Conversion Price" shall be as of September 10, 2012 equal to the Series A Original Issue Price. The "Series B Conversion Price" shall be as of September 10, 2012 equal to the Series B Original Issue Price. Such initial Series A Conversion Price and Series B Conversion Price, and the rate at which shares of Preferred Stock may be converted into shares of Common Stock, shall be subject to adjustment as provided below. The "Conversion Price" shall mean the Series A Conversion Price, in the case of the Series A Preferred Stock, and the Series B Conversion Price. in the case of the Series B Preferred Stock. In the event of a liquidation, dissolution or winding up of the Corporation, including any Deemed Liquidation Event, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of any such amounts distributable on such event to the holders of Preferred Stock. (b) Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board of Directors. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of shares of Preferred Stock the holder is at the time converting into Common Stock and the aggregate number of shares of Common Stock issuable upon such conversion. (c) Mechanics ofConversion. (i) In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock into shares of Common Stock, such holder shall surrender the certificate or certificates for such shares of Preferred Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Preferred Stock (or at the principal office of the Corporation if the Corporation •serves as its own transfer agent), together with written notice that such holder elects to convert all or any number of the shares of the Preferred Stock represented by such certificate or certificates and, if applicable, any event on which such conversion is contingent. Such notice shall state such holder's name or the names of the nominees in which such holder wishes the certificate or certificates for shares of Common Stock to be issued. If required by the Corporation, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt by the transfer agent of such certificates (or lost certificate affidavit and agreement) and notice (or by the Corporation if the Corporation serves as its own transfer agent) shall be the time of conversion (the "Conversion Time"), and the shares of Common Stock issuable upon conversion of the shares represented by such certificate shall be deemed to be outstanding ofrecord as of such date. The Corporation shall, as soon as practicable after the Conversion Time, issue and deliver at such office to such holder of Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock to which such holder shall be entitled 12 UBC/4383315.7 EFTA01143239 and a certificate for the number (if any) of shares of Preferred Stock represented by the surrendered certificate that were not convened into Common Stock, together with (i) cash in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and (ii) cash equal to all declared but unpaid dividends on the shares of Preferred Stock converted. (ii) The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Fifth Amended and Restated Certificate of Incorporation. Before taking any action which would cause an adjustment reducing the applicable Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of a series of Preferred Stock, the Corporation will take any corporate action which may, in the' opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such adjusted applicable Conversion Price. (iii) All shares of Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall immediately cease and terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and to receive payment in lieu of any fractional share otherwise issuable upon conversion in accordance with Subsection 4(b) above and to receive payment of any dividends declared but unpaid thereon. Any shares of Preferred Stock so convened shall be retired and cancelled and shall not be reissued as shares of such series, and the Corporation (without the need for stockholder action) may from time to time take such appropriate action as may be necessary to reduce the authorized number of shares of Preferred Stock accordingly. (iv) Upon any such conversion, no adjustment to the applicable Conversion Price shall be made for any declared but unpaid dividends on a series of Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion. (v) The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Preferred Stock pursuant to this Section 4. The Corporation shall not, however, be required to pay any tax which may be payable in respec