Attachment Attachment

This document pretains to ROA-NEW-20060110-00001 for New Application on a Recognized Operating Authority filing.

IBFS_ROANEW2006011000001_476117

Del@ware ... The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF "AICENT, INC.", FILED IN THIS OFFICE ON THE TWENTY—EIGHTH DAY OF APRIL, A.D. 2005, AT 5:16 O‘CLOCK P.M. A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS. Harriet Smith Windsor, Secretary of State 3287349 8100 AUTHENTICATION: 3846093 050345259 DATE: 04—29—05

State of Delaware Secretary of State Division of Corporations Delivered 05:33 PM 04/28/2005 FILED 05:16 PM 04/28/2005 SRV 050345259 — 3287349 FILE THIRD AMENDED AND RESTATED CERTIFICAIE OF INCORPORATION OF 1 AICENT, INC. Aicent, Inc , a corporation organized and existing under the General Corporation Laws of the State of Delaware, hereby certifies that: ONE: The original name ofthe Corporationis Aicent, Inc. and the date of filing the original Certificate ofIncorporation of the Corporation with the Secretary ofState of the State of Delaware (the "Secretary of State") is September 13, 2000. Such original Certificate of Incorporation has been amended and restated by the filing of an Amended and Restated Certificate of Incorporation, filed with the Secretary of State on October 12, 2000, and a Second Amended and Restated Certificate of Incorporation, filed on August 23, 2002, as amended by a Certificate of Amendment thereto, filed with the Secretary of State on August 15, 2003 (collectively, the "Second Amended and Restated Certificate of Incorporation of the Corporation") TWO: The Second Amended and Restated Certificate of Incorporation of the Corporation, as amended, is hereby amended and restated to read as follows: L. The name of the corporation is Aicent, Inc. (the "Corporation"") IL The address ofthe registered office of the Corporation in the State of Delaware is: 2711 Centerville Road, Suite 400 Wilmington, DE 19808 County of New Castle The name ofthe Corporation‘s registered agent at said address is Corporation Service Company IHL 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 L aw of the State of Delaware. Iv. A. This Corporation is authorized to issue two classes ofstock to be designated, respectively, "Common Stock" and "Preferred Stock" The total number of shares that the Corporation is authorized to issue is Eighty Six Million Eight Hundred Forty Nine Thousand Five Hundred and Ninety (86,849,590) shares of capital stock, divided into Fifty—Ihree Million (53,000,000) shares of Common Stock at a par value of $.001 pershare ("Common Stock") and {00141389v4}

Thirty Three Million Eight Hundred Forty Nine Thousand Five Hundred and Ninety (33,849,590) shares ofPreferred Stock (the "Preferred Stock"), at a pat value of $.001 B. The number of authorized shares of Common Stock may be increased or decreased (but not below the number ofshares of Common Stock then outstanding) by the affirmative vote of the holders of a majority of the outstanding shares of capital stock ofthe Corporation (voting togethet on an as—if—converted basis), regardless of whether the Corporation has also received the affitmative vote ofthe holders of a majority of the outstanding shares of Common Stock C. Five Million Seven Hundred Forty Nire Thousand Five Hundred and Ninety (5,749,590) of the authorized shares of Prefeired Stock are hereby designated "Series A Preferred Stock" (the "Series A Stock"). Ten Million Six Hundred Thousand (10,600,000) of the authorized shares of Preferred Stock are hereby designated "Series B Preferred Stock" (the "Series B Stock"). Seventeen Million Five Hundred Thousand (17,500,000) of the authorized shares of Prefetred Stock are hereby designated "Series C Preferred Stock (the "Series C Stock") D. The rights, preferences, privileges, restrictions and other matters relating to the Preferred Stock ate as follows: 1. Dividend Rights, (a) The Preferred Stock, in preference to the holders of the Common Stock, will be entitled to receive, when and as declared by the Board of Ditrectors, but only out of funds legally available therefor, cash dividends at the rate of $0.04 per annum on each outstanding share ofSeries A Stock or Series B Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations, and the like with respect to such shares) and $0.064 per annum on each outstanding share of Series C Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations, and the like with respect to such shares) (b) Such dividends will be payable only when and as declared by the Board ofDirectors and will be non—cumulative. In the event that dividends are paid on any share of Common Stock, an additional dividend will be paid with respect to all outstanding shares of Preferted Stock in an amount equal per share (on an as—converted basis) to the amount paid or set aside foreach share of Common Stock. {€) Priority of Dividends. No dividends shall be paid to the holdets of shares ofSeries A Stock orSeries B Stock during any fiscal year until dividends in the amount set forth in Section D(1)(a) above have been paid to the holders ofSeries C Stock during that fiscal year and no dividends shall be paid on any shares of Common Stock during any fiscal yeat until dividends in the amount set forth in Section D{1){a) above have been paid to the holders of shares ofSeries A Stock and Series B Stock during that fiscal year. Further, no dividends shall be paid with respect to outstanding shares of Common Stock unless a dividend (in addition to the amounts set forth in Section (D)(1)(a) above) is paid with respect to all outstanding shares of Preferred Stock in an amount for each such share ofPreferred Stock (on an as converted basis) equal to or greater than the pershare dividend paid on such shares of Common Stock 100141389v4} 2

(d) In the event the Corporation shall declare a distribution payable in securitics ofother persons, evidences of indebtedness issued by the Corpotation or other persons, assets {excluding cash dividends) or options or rights to purchase any such securities or evidences ofindebtedness, then, in each such case the holders ofthe Preferred Stock shall be entitled to a proportionate share of any such distribution as though the holders of the Preferted Stock were the holders ofthe number of shares of Common Stock of the Corporation into which theirrespective shares ofPreferted Stock are convertible as of the record date fixed for the determination ofthe holders of Common Stock of the Corporation entitled to receive such distribution. 2. Voting Rights. (a) General Rights, Except as otherwise provided herein or as required by taw, the Preferred Stock will be voted equally with the shares of the Common Stock of the Corporation and not as a separate class, at any annual or special meeting ofstockholders of the Corporation, and may act by written consent in the same manner as the Common Stock, in either case upon the following basis: each holderofshares of Preferred Stock will be entitled to such number of votes as will be equal to the whole number ofshares of Common Stock into which such holder‘s aggregate numberofshares ofPreferred Stock are convertible (pursuant to Section 5 hereof) immediately after the close of business on the record date fixed for such meeting or the effective date ofsuch written consent (b) Board of Directors. (i) The Board of Directors shall consist ofseven (7) members The holders of Series A and B Stock, voting together as a class, shall be entitled to elect two (2) members ofthe Board of Directors. The holders ofSeries C Stock shall be entitled to elect two (2) membets of the Board of Directors (each, a "Series C Director"). The holders ofthe Preferred Stock and the holders of the Common Stock, voting togetheras a single class, shall be entitled to designate three (3) members of the Board of Directors. (ii) In the case of any vacancy in the office of a director occutring among the directors elected by the holders of the Series A and B Stock or among the directors elected by the holders ofSeries C Stock pursuant to the second and third sentences of subscction (b)(i) above, the remaining director or directors so elected by the holders of the Series A and B Stock or Series C Stock, as the case may be, may, by affitmative vote of a majority thereof {or the remaining director so elected if there is but one;, or if there is no such director remaining, by the affirmative vote of the holders of a majority of the shares of Series A and B Stock or Series C Stock, as the case may be) elect a successor or successors to hold the office for the unexpired term of the director or directors whose place or places shall be vacant Any director who shall have been elected by the holders ofthe Series A and B Stock or Series C Stock or any ditector so elected as provided in the preceding sentence hereof, may be removed during the aforesaid term ofoffice, whether with or without cause, only by the affitmative vote ofthe holders of a majority of the Series A and B Stock or Series C Stock, as the case may be {00141389v4} 3

(c) Series A Stock Special Voting Rights. Without the affirmative vote or written consent ofthe holders (acting togetheras a class) ofat least a majority ofthe then outstanding shares of Series A Stock, the Corporation will not, whether directly or indirectly by amendment, merger, consolidation orotherwise: (i) adversely alter or change the rights, preferences or privileges of the shares ofSeries A Stock; or (ii) authorize, create or issue, or obligate itself to issue, any other equity security, including any other security convertible into or exercisable for any equity security, have a preference or privilege with respect to liquidation, dividend or redemption senior to or on parity with the Series C Stock, unless such security is sold at an Effective Price greater than the then—applicable Conversion Price (as such terms are defined in Section 5 below) for the Series C Stock (d) Series B Stock Special Voting Rights. Without the affirmative vote or written consent of the holders (acting togcther as a class} ofat least a majority of the then outstanding shares of Series B Stock, the Corporation will not, whetherdirectly orindirectly by amendment, merget, consolidation or otherwise: (i) adversely alter or change the rights, preferences or privileges ofthe shares ofSeries B Stock; or (ii) authorize, create or issue, or obligate itselfto issue, any other equity security, including any other security convertible into or cxercisable for any equity security, have a preference or privilege with respect to liquidation, dividend or redemmption senior to or on patity with the Series C Stock, unless such secutity is sold at an Effective Price greater than the then—applicable Conversion Price (as such terms are defined in Section 5 below) for the Seties C Stock.. (e) Series C Stock Special Voting Rights. Without the affirmative vote or written consent ofthe holders (acting together as a class) of at least a majority of the then outstanding shares of Series C Stock, the Corporation will not, whether directly orindirectly by amendment, merger, consolidation or otherwise: ) declare any dividend or make anydistribution with respect to any security ofthe Corporation; (ii) redeem, purchase, or otherwise acquire any debt ofthe Corporation or anyshare or shares ofPreferred Stock or Common Stock; provided however, that this restriction shall not apply to the repurchase of shares of Common Stock from employees, officers, directors, consultants, or other persons performing services for the Corporation or any subsidiary at a price per share of no more than such person‘s original cost per share (as adjusted for stock splits, dividends, combinations or the like) pursuant to agreements under which the Corporation has the option to repurchase such shares upon the occurrence ofcertain events, such as the termination of employment or service, or pursuant to a right of first refusal; {00141389v4} 4

(iii) alter or change the rights, preferences or privileges ofthe shares ofSeries C Stock; (iv) authorize, create or issue, or obligate itself to issue, any other equity security, including any other security convertible into or exercisable for any equity security, have a preference or privilege with respect to liquidation, dividend orredemption senior to or on parity with the Scries C Stock; {v) amend this Third Amended and Restated Certificate of Incorporation or the Corporation‘s bylaws in any mannerthat is adverse to the holders of Series C Stock; (vi) effect any sale, lease, assignment, transfer, or other conveyance of all orsubstantially all ofthe assets of the Corporation or any ofits subsidiaries, or any consolidation or merger involving the Corporation or any of its subsidiaries, or any reclassification or other change ofany stock, or anyliquidation, dissolution or recapitalization of the Corporation, or effect any transaction or series ofrelated transactions in which more than 50% ofthe voting power ofthe Corporation is transfeired or disposed of; (vii) inctease the number of shares reserved for issuance pursuant to the Company‘s 2000 Stock Option Plan or adopt any other stock option in excess of 6.5 million shares (as adjusted for stock splits, dividends, combinations and the like) or equity plan; (viii) increase or decrease the total number ofauthorized shares ofPreferted Stock or the total number of authorized shares of Common Stock; (ix) directly or indirectly (including through a subsidiary) acquire any business or entity, including all or substantially all the assets of any business or entity, whether through a merget or consolidation, share purchase or asset purchase or any other means; or (x) inctrease or decrease the authorized number of directors constituting the Corporation‘s Board ofDirectors (1) Preferred Stock Special Voting Rights. Without the affirmative vote or written consent of the holders (acting togetheras a class) of at least a majority of the then outstanding shares of Preferred Stock, the Corporation will not, whether directly or indirectly by amendment, merger, consolidation or otherwise: (i) declare any dividend or make anydistribution with respect to any security of the Corporation; (ii}) redeem, purchase, or otherwise acquire any debt of the Corporation or any share or shares ofPrefetted Stock or Common Stock; provided however, that this restriction shall not apply to the repurchase ofshares of Common Stock from employecs, officers, ditectors, consultants, or other persons performing services for the Corporation or any subsidiary at a price per share ofno more than such person‘s original cost per share (as adjusted {00141389v4} 5

for stock splits, dividends, combinations or the like) pursuant to agreements under which the Corporation has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right offirst refusal; (iii) effect any sale, lease, assignment, transfer, or other conveyance of all or substantially all ofthe assets of the Corporation or any of its subsidiaries, or any consolidation or merger involving the Corporation or any ofits subsidiaries, or any reclassification or other change of any stock, or any liquidation, dissolution orrecapitalization of the Corporation, or effect any transaction or series of related transactions in which more than 50% of the vating power ofthe Corporation is transferred ordisposed of; (iv) increase the number of shares reserved for issuance pursuant to the Company‘s 2000 Stock Option Plan or adopt any otherstock option in excess of 6.5 million shares {as adjusted for stock splits, dividends, combinations and the like) or equity plan; (v) increase or decrease the total number of authorized shares ofPreferred Stock or the total number of authorized shares of Common Stock; or (Vl) increase or dectrease the authorized number of directors constituting £ the Cor poxation’s Board of Directors. 3. Liquidation Rights. (a) Upon any liquidation, dissolution, or winding up ofthe Cotporation, whether voluntary orinvoluntary, before any distribution or payment will be made to the holders of Common Stock, each holder of shares ofPreferred Stock will be entitled to be paid out ofthe assets ofthe Corporation the greatet of(and in addition to any other payment such holder will be entitled to either as a holder of any other securities of the Corporation ot otherwise): (A) the sum of (i) foreach outstanding share ofSerties A Stock and Series B Stock then held by such holder an amount equal to $0.50 and foreach outstanding share ofSeries C Stock then held by such holder an amount equal to $0.80 (in each case as adjusted for any stock splits, dividends, combination and the like), (ii) all declared and unpaid dividends on such shares ofPreferred Stock, and (iii) an amount out ofthe assets available fordistribution to the Corporation‘s stockholders remaining after payment ofthe amounts in (i) and (i) above equal to such holdet‘s pro rata portion of such remaining amount based on the number of shares of Common Stock into which such holder‘s Preferred Stock is then convertible until such holdet has received an aggregate under this clause {A) of $2 00 pershare ofScrics A Stock and Seties B Stock held by such holder and an aggregate under this clause (A) of $3.20 pershare of Series C Stock held by such holder, and (B) the amount such holder would be entitled to ifsuch holder‘s shares ofPreferred Stock and any declared but unpaid dividends thereon had been converted into shares of Common Stock immediately prior to such liquidation, dissofution or winding up of the Corporation (the greater of (A) and (B) is referred to herein as the "Liquidation Preference"). Thereafter, all ofthe remaining assets ofthe Corporation available to distribution to stockholders will be distributed ratably among the holders of Common Stock in proportion to the number of {00141389v4; 6

shares of Common Stock owned by each such holder If, upon any such liquidation, distribution, or winding up, the assets ofthe Corporation as set forth above will be insufficient to make paymeat in full to each holder of Preferred Stock of an amount equal to the sum of the amounts set forth in (A)(i) and (A)(ii) above with respect to all shares ofPreferred Stack then held by such holder, such assets will be distributed among the holders of Preferred Stock at the time outstanding, with the holders ofshares of Series C Stock being allocated seventy—five percent (75%) ofsuch assets pro rata amongst themselves in proportion to the full amounts to which such holders would otherwise be entitled to receive underclauses {(A)G) and (A)(ii) above with respect to their shares ofSeries C Stock, and with the holders of shares of Series A Stock and Series B Stock being allocated twenty—five percent (25%) ofsuch assets pro rata amongst themselves in proportion to the full amounts to which such holders would otherwise be entitled to receive under clauses (A)(i) and (A)(ii) above with respect to theit shares of Series A Stock and Series B Stock. (b) The following events will be considered a liquidation underthis Section: i) any consolidation or mergerof the Corporation with or into any other corporation or other entity or person, or any other corporate reorganization, in which the stockholders of the Corporation immediately prior to such consolidation, merger or reorganization, own 50% or less ofthe surviving corporation‘s (or its parent‘s, as applicable) voting power immediately after such consolidation, merger or reorganization; or any transaction or series of related transactions to which the Corporation is a party in which shares ofstock representing fifty percent (50%) or more of the Corporation‘s voting power is transferred, excluding any consolidation or merget effected exclusively to change the domicile of the Corporation; or (11) a sale, lease or other disposition of all or substantially all of the assets of the Corporation. 4. Redemption. The Preferred Stock is not redeemable 5. Conversion Rights (a) Optional Conversion. Each share of Preferred Stock is convertible, at any time or from time to time at the option of the holder thereof, into fully paid and nonassessable shares of Common Stock as provided herein. (b) Preferred Stock Conversion Price. Each share ofPreferred Stock is convertible into the number ofshares of Common Stock that results from dividing the conversion price ofthe Preferred Stock that is in effect at the time ofconversion (the applicable "Conversion Price") into the Original Issue Price forthe Preferred Stock. The initial Conversion Price of the Series A Stock is $0.50. The Original Issue Price for the Series A Stock is $0.50. The initial Conversion Price of the Series B Stock is $0.50. The Original Issue Price for the Series B Stock is $0.50. The initial Conversion Price of the Series C Stock is $0.80. The Original Issue Price for the Series C Stock is $0.80. The Conversion Prices for the Series A {O0I41389v4} 7

Stock, the Seties B Stock, and the Series C Stock are subject to adjustment from time to time as provided below. (e) Mechanies of Conversion. To exercise the conversion privilege, a holder of Preferred Stock will surrenderthe certificate or certificates therefor, duly endorsed, at the office ofthe Corporation or any transfer agent for the Preferred Stock, and will give written notice to the Corporation at such office that such holder elects to convert the same. As promptly as practicable on or after the conversion date, the Corporation will issue and mail or deliver to such holdera certificate or certificates for the numberof shares of Common Stock to which such holderis entitled. Such conversion will be deemed to have been made at the close of business on the date of such surrender of the certificates representing the shares of Preferred Stock to be converted, and the person entitled to receive the shares of Common Stock issuable upon such conversion will be treated for all purposes as the record holderof such shares of Common Stock on such date. (d) Adjustment for Stock Splits and Combinations. Ifthe Corporation will at any time or from time to time after the date that the fitst share of Series C Stock is first issued (the "Qriginal Issue Date") effect a subdivision ofthe outstanding Common Stock, the Conversion Price for that Series in effect immediately before that subdivision will be proportionately decreased. Conversely, if the Corpotation will at any time or from time to time after the Original Issue Date combine the outstanding shares of Common Stock into a smaller number of shares, the Conversion Price for that Series in effect immediately before the combination will be proportionately increased. Any adjustment under this Section 5(d) will become effective at the close of business on the date the subdivision or combination becomes effective (e) Adjfustment for Common Stock Dividends and Distributions. If the Corporation at any time or from time to time after the Original Issue Date for a Series declares or pays, or fixes 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, in each such event the Conversion Price for that Series that is then in effect will be decteased as ofthe time ofsuch declaration or payment or, in the event such record date is fixed, as of the close of business on such record date, by multiplying the Conversion Price for that Seties then in effect by a firaction (1) the numerator of which is the total numberofshares of Common Stock issued and outstanding immediately prior to the time ofsuch issuance or the close ofbusiness on such record date, and (ii} the denominator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time ofsuch issuance or the close of business on such record date plus the numberofshares of Common Stock issuable in payment of such dividend or distribution; provided, however, that if such record date is fixed and such dividend is not fully paid or ifsuch distribution is not fully made on the date fixed therefor, the Conversion Price fot such Series will be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Price for such Series will be adjusted pursuant to this Section 5(e) to reflect the actual payment ofsuch dividend or distribution (®) Adjustment for Reclassification, Exchange and Substitution. If at anytime or from time to time after the Original Issue Date, the Common Stock issuable upon the conversion ofthe Preferred Stock is changed into the same ora different number ofshares of foor41389v4} 3

any class or classes ofstock, whether by recapitalization, reclassification orotherwise (other than a subdivision or combination of shares or stock dividend or a reorganization, merger, consolidation ot sale ofassets provided for elsewhere in this Section 5), in any such event each holder ofPreferred Stock will have the right thereafter to convert such stock into the kind and amount ofstock and othet securities and property receivable upon such recapitalization, reclassification or other change by holders ofthe maximum number of shares of Common Stock into which such shares ofPreferred Stock could have been converted immediately prior to such recapitalization, reclassification or change, all subject to further adjustment as provided herein or with respect to such other securities or property by the terms thereof. (g) Reorganizations, Mergers, Consolidations or Sales of Assets. If at any time or from time to time after the Original Issue Date, there is a capital reorganization of the Common Stock ({other than a recapitalization, subdivision, combination, reclassification, exchange, or substitution ofshares provided for elsewhere in this Section 5), as a part ofsuch capital reorganization, provision will be made so that the holders ofthe Preferred Stock will thereafter be entitled to receive upon conversion of the Preferred Stock the numberof shares of stock or other securities or property ofthe Corporation to which a holderof the numberofshares of Common Stock deliverable upon conversion would have been entitled on such capital reorganization, subject to adjustment in respect of such stock or securities by the terms thereof In any such case, appropriate adjustment will be made in the application ofthe provisions ofthis Section 5 with respect to the rights of the holders of Preferred Stock after the capital reorganization to the end that the provisions of this Section 5 (including adjustment of the Conversion Price then in effect and the numbet of shares issuable upon convetsion of the Preferred Stock) will be applicable after that event and be as nearly equivalent as practicable. (b) Sale of Shares Below Conversion Price. (i) If at any time or from time to time after the Original Issuc Date, the Corporation issues or sells, or is deemed by the express provisions of this subsection (b) to have issued or sold, Additional Shares of Common Stock (as defined in subsection (h)(iv) below), other than as a dividend or other distribution on any class ofstock as provided in Section 5{e) above, and other than a subdivision or combination of shates of Common Stock as provided in Section5(d) above, for an Effective Price (as defined in subsection (h)(iv) beflow) less than the then effective Conversion Price for a series of Preferred Stock, the then existing Conversion Price for such series of Preferred Stock will be reduced, as of the opening of business on the date ofsuch issue or sale, to a price determined by multiplying the Conversion Price for that series of Preferred Stock by a fraction (i) the numerator of which will be (A) the number of shares of Common Stock deemed outstanding (as defined below} immediately prior to such issue orsale, plus {B) the numberofshates of Common Stock which the aggregate consideration received (as defined in subsection (h)(ii)) by the Corporation for the total number of Additional Shares of Common Stock so issued would purchase at such Conversion Price, and (ii) the denominator of which will be the number ofshares of Common Stock deemed outstanding (as defined below) immediately prior to such issue or sale plus the total number of Additional Shares of Common Stock so issued. For the purposes of the preceding sentence, the number ofshares of Common Stock deemed to be outstanding as of a given date will be the sum of (A) the number ofshares of Cormmon Stock actually outstanding, (B) the number ofshares of Common Stock into which the then outstanding shares of Preferred {00111389va} 9

Stock could be converted iffully converted on the day immediately preceding the given date, and (C) the number ofshares of Common Stock which could be obtained through the exercise ot conversion of all other rights, options and convertible securities outstanding on the day immediately preceding the given date. (i#) Forthe purpose of making any adjustment required undet this Section 5(B)(i), the consideration received by the Corporation for any issue or sale of securities will (A) to the extent it consists ofcash, be computed at the net amount of cash received by the Corporation after deduction of any underwriting or similar commissions, compensation or concessions paid or allowed by the Corporation in connection with such issue orsale but without deduction of anyother expenses payable by the Corporation, (B) to the extent it consists of property other than cash, be computed at the fair value of that property as determined in good faith by the Board of Directors {including both Series C Directors), and (C) if Additional Shares of Common Stock, Convertible Scouritics (as defined in subscction (h)(iii)) or rights or options to purchase cither Additional Shares of Common Stock or Convertible Securities are 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 that may be reasonably determined in good faith by the Board of Directors (including both Seties C Ditectors) to be allocable to such Additional Shares of Common Stock, Convertible Securities orrights or options. (@ii) For the purpose of the adjustment required under Section 5(I)(i), if the Corporation issues or sells i) stock or other securities convertible into, Additional Shares of Common Stock (such convertible stock or secutities being herein referred to as "Convertible Securities") or i) rights or options for the purchase of Additional Shares of Common Stock or Convertible Securities and if the Effective Price ofsuch Additional Shares of Common Stock is less than the Convetsion Price ofa Series, in each case the Corporation will be deemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of Additional Shares of Common Stock issuable upon exercise ot conversion thereof and to have received as consideration for the issuance ofsuch shares an amount equal to the total amount of the consideration, if any, received by the Corporation for the issuance ofsuch tights or options or Convertible Securities, plus, in the case of such rights or options, the minimum amounts of consideration, i( any, paysable to the Corporation upon the exercise ofsuch rights or options, plus, in the case of Convertible Securities, the minimum amounts ofconsideration, if any, payable to the Corporation (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) upon the conversion thercof; provided that ifin the case of Convertible Sceuritics the minimum amounts ofsuch consideration cannot be ascertained, but are a function of antidilution or similar protective clauses, the Corpotation will be deemed to have received the minimum amounts of consideration without reference to such clauses; provided fur ther that if the minimum amount of consideration payable to the Corporation upon the exercise or conversion ofrights, options or Convertible Securities is reduced over time or on the occurrence or non—occutrence ofspecified events other than by reason ofantidilution adjustments, the Effective Price will be recalculated using the figure to which such minimum amount ofconsiderationis reduced; provided firtkerthat if the minimum amount ofconsideration payable to the Cotporation upon the exercise ot conversion ofsuch rights, options or Convertible Securities is subsequently increased, the Effective Price will be again recalculated using the incteased minimum amount of consideration payable to the {Ootei38ov4) 10

Corporation upon the exercise or conversion of such rights, options or Convertible Securities. No further adjustment ofthe Conversion Price of a Series, as adjusted upon the issuance of such rights, options or Convertible Securities, will be made as a result of the actual issuance of Additional Shares of Common Stock on the exercise of any such rights or options or the convetsion ofany such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities will expire without having been exercised, the Conversion Price as adjusted upon the issuance of such rights, options of Convertible Secutities will be readjusted to the Conversion Price which would have been in effect had an adjustment been made un the basis that the only Additional Shares of Common Stock so issued were the Additional Shares of Common Stock, if any, actually issued or sold on the exercise ofsuch rights or options orrights of conversion of such Convertible Securities, and such Additional Shares of Common Stock, if any, were issued or sold for the consideration actually reecived by the Corporation upon such exercise, plus the consideration, if any, actually received by the Corporation for the granting of all such rights or options, whether or not exercised, plus the consideration received for issuing or selling the Convertible Securities actually converted, plus the consideration, if any, actually received by the Corporation (other than by cancellation ofliabilities or obligations evidenced by such Convertible Securities} on the conversion of such Convertible Securities, provided that such readjustment will not apply to prior conversions ofsuch Series ofPreferred Stock (iv) "Additional Shares of Common Stock" will mean all shares of Common Stock issued by the Corporation or deemed to be issued pursuant to this Section 5(b), other than (A) shares of Common Stock issued upon conversion of the Preferred Stock; (B) shares of Common Stock and/or options to purchase Common Stock issued to employees, officers or directors of, or consultants or advisors to the Corporation or any subsidiary pursuant to stock purchase or stock option plans or other arangements that are approved by the Board of Directors including both Series C Directors or pursuant to the Corporation‘s 2000 Stock Option Plan; (C) shares of Common Stock issued pursuant to the exercise of options, warrants, convertible securities or other rights outstanding as ofthe Original Issue Date, (D) shares of Common Stock and/or options, warants, other Common Stock purchase rights, and the Common Stock issued pursuant to such options, warrants or other rights issued [or consideration other than cash in connection with a bona fide business acquisition by the Corporation pursuant to a merger, consolidation, acquisition or similar business combination approved by the Board of Directors, and {E) shares of Common Stock issued pursuant to any equipment leasing arrangement or debt financing from a bank or similarfinancial institution in a transaction approved by the Board of Directors and the primary purpose of which is not the raising ofequity financing. References to Common Stock in the subsections ofthis clause (iv) above will mean all shares of Common Stock issued by the Corporation or deemed to be issued pursuant to this Section 5(h). The "Effective Price" of Additional Shares of Common Stock will mean the quotient determined by dividing the total number of Additional Shares of Common Stock issued or sold, or decmed to have been issued or sold by the Corporation under this Section 5(h), into the aggregate consideration received, or deemed to have been received by the Corporation for such issue under this Section 5(b), for such Additional Shares of Common Stock (i) Certificate of Adjustment. In each case of an adjustment or readjustment ofthe Conversion Price for a series ofPreferred Stock for the numberof shares of Common Stock or other securities issuable upon conversion ofsuch series ofPreferred Stock, if 100141389v1} 11

the Preferred Stock is then convertible pursuant to this Section 5, the Corporation, at its expense, will compute such adjustment or teadjustment in accordance with the provisions hereof and prepare a certificate showing such adjustment or readjustment, and will mail such certificate, by first class mail, postage prepaid, to each tegistered holder ofPreferred Stock at the holder‘s address as shown in the Corporation‘s books. The certificate will set forth such adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based, including a statement of (i) the consideration received or deemed to be received by the Corpotation for any Additional Shares of Common Stock issued orsold or deemed to have been issued or sold, (ii) the Conversion Price at the time in effect, (iii) the numbet of Additional Shares of Common Stock and (iv) the type and amount, if any, ofother property which at the time would be received upon conversion of the Preferred Stock. 0) Notices of Record Date. In the event of any taking by the Corporation ofa record ofthe holders ofany class ofsecurities for the purpose ofdetermining the holders thereof who are entitled to receive any dividend (other than a cash dividend) o1 other distribution, any right to subscribe for, purchase or otherwise acquire any shares ofstock ofany class or any other securities or property, or to receive any other tight, the Corporation will mail to each holder ofPreferred Stock, at least ten (10) days prior to the record date specified therein (or such shorter period approved by the holders of a majority of the outstanding Preferred Stock, determined on an as converted basis) a notice specifying (i) the date on which anysuch record is to be taken for the purpose of suchdividend or distribution and a description of such dividend or distribution, and () the amount and character ofsuch dividend, distribution, or right. (k) Automatic Conversion, i) Each share of Prefeired Stock will automatically be converted into shares of Common Stock (A) at any time upon the affitmative election ofthe holders ofat least a majority of the outstanding shares of the Preferred Stock determined on an as converted basis and the affirmative election of the holders of at least a majorily of the outstanding shares of Series C Stock, or (B) immediately upon the closing of a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock for the account ofthe Corporation in which the per share price to public is at least five dollars ($5.00) (as adjusted for stock splits, dividends, recapitalizations and the like) and the gross cash proceeds to the Cotporation (before underwriting discounts, commissions and fees) are at least thirty million dollars ($30,000,000), and in which the Common Stock is listed on the New York Stock Exchange, an internationally recognized stock exchange approved by holders ofa majority of the outstanding Series C Stock or on the Nasdaq National Market (i) Upon the occurrence of cither ofthe events specified in Section 5(k)(1) above, the outstanding shares ofPreferred Stock will be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer agent; provided, however, that the Corporation will not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless the certificates evidencing such shares of Preferred Stock are eitherdelivered to the Corporation or its transfer agent as provided below, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, foor41389v4} 12

stolen or destroyed and executes an agreement satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates, Upon the occurrence of such automatic conversion ofthe Preferred Stock, the holders of Preferred Stock will surrender the certificates representing such shares at the office ofthe Corporation or any transfer agent for the Preferred Stock. Thereupon, there will be issued and delivered to such holder promptly at such office and in its name as shown on such sutrendered certificate of certificates, a certificate ot certificates for the numberofshares of Common Stock into which the shares of Preferred Stock surtendered were convertible on the date on which such automatic conversion occurred, and any declared and unpaid dividends will be paid in accordance with the provisions ofSection 5(c) (1) Fractional Shares. No fractional shares of Common Stock will be issued upon conversion of Preferred Stock. All shares of Common Stock {including fractions thereof} issuable upon conversion of more than one share ofPreferred Stock by a holder thereof will be aggregated for purposes of delermining whether the conversion would result in the issuance of any fractional share If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Corporation will, in lien ofissuing any fractional share, pay cash equal to the product of such fraction multiplied by the Common Stock‘s fair market value (as determined by the Board of Directors) on the date of conversion {m} Reservation of Stock Issuable Upon Conversion. The Corporation will at all times reserve and keep available out ofits authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion ofthe shares ofthe Preferred Stock, such mumber of its shares of Common Stock as will from time to time be sufficient to effect the conversion ofall outstanding shares ofthe Preferred Stock. If at any time the number of authorized but unissued shares of Common Stock will not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation will take such corporate action as may, in the opinion ofits counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as will be sufficient for such purpose. (n) Notices. Any notice required by the provisions of this Section 5 will be in writing and will be deemed effectively given: i) upon personal delivery to the party to be notified. (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (ii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight coutiet, specifying next day delivery, with written verification ofreceipt. All notices will be addressed to each holder ofrecord at the address of such holder appearing on the books ofthe Corporation (0) Payment of Taxes. The Corporation will pay all taxes (other than taxes based upon income} and other governmental charges that may be imposed with respect to the issue or delivery ofshares of Common Stock upon conversion ofshares ofPreferred Stock, excluding any tax or other charge imposed in connection with any transfer involved in the issue and delivery ofshares of Common Stock in a name other than that in which the shares of Preferred Stock so converted were registered {00141389v4} 13

6. Common Stock (a) Dividend Rights. Subject to the prior rights of holders ofall classes of stock at the time outstanding having prior rights as to dividends, the holders of the Common Stock will be entitled to teceive, when, as and if declared by the Board of Directors, out of any assets ofthe corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors (b) Liquidation Rights. Upon the liquidation, dissolution or winding up of the corporation, the assets of the corporation will be distributed as provided in Article IV, Section 3 hereof. (e) Voting Rights. The holder of each share of Common Stock will have the right to one vote, and will be entitled to notice of any stockholders‘ meeting in accordance with the Bylaws of the Corporation, and will be entitled to vote upon such matters and in such manneras may be provided by law. v. A. A director of the Corporation shall, to the full extent permitted by the Delaware General Corporation Law as it now exists or as it may hereafter be amended, not be liable to the Corporation or its slockholders for monetary damages for breach offiduciary duty as a director Neither any amendment not tepeal of this Article V({A), nor the adoption ofany provision ofthis Third Amended and Restated Certificate of Incorporation inconsistent with this Article V(A), shall eliminate or reduce the effect ofthis Article V(A) with respect to any matter occurring, or any cause of action, suit or claim that, but for this Article V(A), would accrue or arise, prior to such amendment, repeal or adoption ofan inconsistent provision. B. This corporation is authorized to provide indemnification ofagents (as defined in Section 317 of the California General Corporations Law ("CGCL") for breach of duty to the corporation and its stockholders through bylaw provisions or through agreements with the agents, or through shareholder resolutions, or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the COCL, subject, at any time or times that the corporation is subject to Section 2115(b) of the CGCL, to the limits on such excess indemnification set forth in Section 204 of the CGCI C. The holders ofthe Preferred Stock expressly waive their rights, if any, as described in California Code Sections 502, 503 and 506 as theyrelate to repurchases ofshares upon termination of employment or service as a consultant or director D. Any repeal or modification of this Article V will only be prospective and will not effect the rights under this Article V in effect at the time ofthe alleged occurrence of any action or omission to act giving rise to liability. {00141389v4} 14

VI For the management of the business and for the conductof the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation, ofits directors and ofits stockholdets or any class thereof, as the case may be, it is further provided that: E. The management of the business and the conduct ofthe affairs of the Corporation will be vested in its Board of Directors F. Subject to the indemnification provisions in the Bylaws and subject to the rights of holders ofSeries A Stock, Series B Stock, Series C Stock and Preferted Stock as described in Sections 2(c), 2(d), 2(e) and 2(f), the Board ofDirectors may from time to time make, amend, supplement or tepeal the Bylaws; provided, however, that the stockholders may change or repeal any Bylaw adopted by the Board of Directors by the affirmative vote of the percentage ofholders ofcapital stock as provided therein; and, provided further, that no amendment or supplement to the Bylaws adopted by the Board of Directors will vary or conflict with any amendment or supplement thus adopted by the stockholders G. The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide. The directors shall be elected in accordance with Section D(2)(b) of Article III of this Third Amended and Restated Certificate of Incorporation THREE: This Third Amended and Restated Certificate of Incorporation has been duly approved by the Board ofDirectors ofthe Corporation FOUR: This Third Amended and Restated Certificate ofIncorporation has been duly adopted in accordance with the provisions ofSections 242 and 245 of the General Corporation Law of the State of Delawate by the Board ofDirectors and the stockholders of the Corporation This Third Amended and Restated Certificate ofIncorpotation was approved by the holders of the requisite number of shares of the Corporation in accordance with Section 228 ofthe General Corporation L aw of the State of Delaware. {00141389v4} 15

IN WITNESS WHEREOF, Aicent, Inc. has caused this Third Amended and Restated Certificate of Incorporation to be signed by its President and the Secretary in Palo Alto, California this ___28t" day ofApril, 2005 Aicent, Inc. By: /s/Lyan Liu Lyrnn Liu, President By: /s/Barry A. Carr Barry A. Cart, Secretary ~ (00141389v4} 16


Document Created: 2006-01-17 15:56:00
Document Modified: 2006-01-17 15:56:00
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