exv4w1



 





Exhibit 4.1




CERTIFICATE OF DESIGNATION




OF




SERIES A JUNIOR PARTICIPATING PREFERRED STOCK




(Exhibit A to Rights Agreement)




(Pursuant to Section 151 of the

Delaware General Corporation Law)




     PlanetOut Inc., a corporation organized and existing under the General Corporation
Law of the State of Delaware (hereinafter called the “Company”), hereby certifies that the
following resolution was adopted by the Board of Directors of the Corporation as required by
Section 151 of the General Corporation Law at a meeting duly called and held on January 4, 2007:




     Resolved, that pursuant to the authority granted to and vested
in the Board of Directors of the Company in accordance with the provisions
of its Amended and Restated Certificate of Incorporation, the Board of
Directors hereby creates a series of Preferred Stock, par value $.001 per
share, of the Company and hereby states the designation and number of shares, and fixes the relative designations and the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof (in
addition to the provisions set forth in the Certificate of Incorporation of
the Company, which are applicable to the Preferred Stock of all classes and
series), as follows:



Series A Junior Participating Preferred Stock:




     Section 1. Designation and Amount. One hundred thousand (100,000) shares of Preferred Stock,
$.001 par value, are designated “Series A Junior Participating Preferred Stock” with the
designations and the powers, preferences and rights, and the qualifications, limitations and
restrictions specified herein (the “Junior Preferred Stock”). Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Junior Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities issued by the
Company convertible into Junior Preferred Stock.



A-1









 





     Section 2. Dividends and Distributions.



          (A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or
any similar stock) ranking prior and superior to the Junior Preferred Stock with respect to
dividends, the holders of shares of Junior Preferred Stock, in preference to the holders of Common
Stock, par value $.001 per share (the “Common Stock”), of the Company, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on the first day of
April, July, October and January in each year (each such date being referred to herein as a
“Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Junior Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $10.00 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all
cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Junior Preferred Stock. In the event the Company shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of shares of Junior
Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately prior to such
event.




          (B) The Company shall declare a dividend or distribution on the Junior Preferred Stock as
provided in paragraph (A) of this Section immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of Common Stock); provided, that in
the event no dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10.00 per share on the Junior Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.




          (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Junior
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Junior Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear

A-2









 








interest. Dividends paid on the shares of Junior Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of Junior Preferred
Stock entitled to receive payment of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the payment thereof.




     Section 3. Voting Rights. The holders of shares of Junior Preferred Stock shall have the
following voting rights:



          (A) Subject to the provision for adjustment hereinafter set forth, each share of Junior
Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote
of the stockholders of the Company. In the event the Company shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share to which holders of
shares of Junior Preferred Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.




          (B) Except as otherwise provided herein, in any other Certificate of Designation creating a
series of Preferred Stock or any similar stock, or by law, the holders of shares of Junior
Preferred Stock and the holders of shares of Common Stock and any other capital stock of the
Company having general voting rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Company.




          (C) Except as set forth herein, or as otherwise provided by law, holders of Junior Preferred
Stock shall have no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any
corporate action.




     Section 4. Certain Restrictions.



          (A) Whenever quarterly dividends or other dividends or distributions payable on the Junior
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Company shall not:




               (i) declare or pay dividends, or make any other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior
Preferred Stock;



               (ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Junior
Preferred Stock, except dividends paid ratably on the Junior



A-3









 







Preferred Stock and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then entitled;



               (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Junior
Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the Company ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to the Junior Preferred
Stock; or



               (iv) redeem or purchase or otherwise acquire for consideration any shares of Junior Preferred
Stock, or any shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Junior Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among the respective
series or classes.



          (B) The Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such
manner.




     Section 5. Reacquired Shares. Any shares of Junior Preferred Stock purchased or otherwise
acquired by the Company in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Amended and Restated
Certificate of Incorporation, or in any other Certificate of Designation creating a series of
Preferred Stock or any similar stock or as otherwise required by law.



     Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or
winding up of the Company, no distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Junior Preferred Stock unless, prior thereto, the holders of shares of Junior Preferred Stock shall
have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, provided that the
holders of shares of Junior Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Junior Preferred Stock, except distributions made ratably on
the Junior Preferred Stock and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Company shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or



A-4









 







consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of shares of Junior
Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.



     Section 7. Consolidation, Merger, Etc. In case the Company shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Junior Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Company shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Junior Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.



     Section 8. No Redemption. The shares of Junior Preferred Stock shall not be redeemable.



     Section 9. Rank. The Junior Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to all series of any other class of the Company’s
Preferred Stock.



     Section 10. Amendment. The Amended and Restated Certificate of Incorporation of the Company
shall not be amended in any manner which would materially alter or change the powers, preferences
or special rights of the Junior Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the outstanding shares of Junior
Preferred Stock, voting together as a single class.



A-5









 





     In Witness Whereof, the undersigned have executed this certificate as of
January 4, 2007.




	 	 	 	 	 
	 
	 	/s/ Karen Magee 	 	 
	 

	 	 

Karen Magee

Chief Executive Officer


	 	 
	 
	 	/s/ Jeffrey T. Soukup 	 	 
	 

	 	 

Jeffrey T. Soukup

Secretary
	 	 







A-6










 





Amended and Restated Certificate of Incorporation

of

PlanetOut Inc.




          PlanetOut
Inc., a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the “Corporation”),




          Does Hereby Certify:




          First: That the original name of the Corporation was PlanetOut Partners, Inc. The original
Certificate of Incorporation, the Amended and Restated Certificate of Incorporation, the Second
Amended and Restated Certificate of Incorporation, the Third Amended and Restated Certificate of
Incorporation, the Fourth Amended and Restated Certificate of Incorporation, the Fifth Amended and
Restated Certificate of Incorporation and the Sixth Amended and Restated Certificate of
Incorporation of the Corporation, as amended by the Certificate of Amendment, were filed with the
Secretary of State of the State of Delaware on December 7, 2000, April 16, 2001, May 1, 2001, June
29, 2001, February 26, 2002, April 22, 2002, August 18, 2003 and April 27, 2004, respectively.




          Second: That by action of the Board of Directors of the Corporation, taken on April 21, 2004
and filed with the minutes of the Corporation, resolutions were duly adopted setting forth the
proposed amendment and restatement of the Sixth Amended and Restated Certificate of Incorporation
of the Corporation and declaring said amendment and restatement to be advisable. The resolution
setting forth the proposed amendment and restatement is as follows:





     Resolved, that the Amended and Restated Certificate of Incorporation of the Corporation in
substantially the form attached hereto as Exhibit A be, and it hereby is, adopted and approved.



          Third: That thereafter, pursuant to a resolution of the Board of Directors, the stockholders
of the Corporation took action by executing a written consent in lieu of a meeting in accordance
with Section 228 of the General Corporation Law of the State of Delaware to approve such amendment
and restatement. The holders of a majority of the outstanding stock entitled to consent thereto
have granted written consent with respect to such stock in favor of said amendment and restatement.




          Fourth: That said amendment and restatement was duly adopted in accordance with the provisions
of Sections 242 and 245 of the General Corporation Law of the State of Delaware. This Amended and
Restated Certificate of Incorporation amends and restates the provisions of the Sixth Amended and
Restated Certificate of Incorporation of the Corporation.




          In
Witness Whereof, the Corporation has caused this Amended and Restated Certificate of
Incorporation to be signed by its duly authorized officer, this 19th
day of October, 2004.




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	PlanetOut
Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Lowell R. Selvin 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Lowell R. Selvin	 	 
	 

	 	 	 	Chief Executive Officer	 	 






 









 






Exhibit
A




I.




          The name of this corporation is PlanetOut Inc. (the “Corporation”).




II.




          The address of the registered office of the Corporation in the State of Delaware is 1209
Orange Street, City of Wilmington, County of New Castle, and the name of the registered agent of
the Corporation in the State of Delaware at such address is Corporation Trust Company.




III.




          The purpose of this Corporation is to engage in any lawful act or activity for which a
corporation may be organized under the Delaware General Corporation Law (“DGCL”).




IV.




     A. The Corporation is authorized to issue two classes of stock to be designated,
respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the
Corporation is authorized to issue is 105,000,000 shares, of which 100,000,000 shares shall be
Common Stock and 5,000,000 shares shall be Preferred Stock. The Common Stock shall have a par value
of $0.001 per share, and the Preferred Stock shall have a par value of $0.001 per share.



     B. The Preferred Stock may be issued from time to time in one or more series. The Board
of Directors is hereby expressly authorized to provide for the issue of all or any of the shares of
the Preferred Stock in one or more series, and to fix the number of shares and to determine or
alter for each such series, such voting powers, full or limited, or no voting powers, and such
designation, preferences, and relative, participating, optional, or other rights and such
qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for the issuance of such
shares and as may be permitted by the DGCL. The Board of Directors is also expressly authorized to
increase or decrease the number of shares of any series subsequent to the issuance of shares of
that series, but not below the number of shares of such series then outstanding. In case the number
of shares of any series shall be decreased in accordance with the foregoing sentence, the shares
constituting such decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series.



     C. Each outstanding share of Common Stock shall entitle the holder thereof to one vote
on each matter properly submitted to the stockholders of the Company for their vote; provided,
however, that, except as otherwise required by law, holders of Common Stock shall not be entitled
to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any
certificate of designation filed with respect to any series of Preferred Stock) that relates solely
to the terms of one or more outstanding series of Preferred Stock, if the holders of such affected
series are entitled, either separately or together as a class with the holders of one or more other
such series, to vote thereon by law or pursuant to this Amended and Restated Certificate of
Incorporation (including any certificate of designation filed with respect to any series of
Preferred Stock).



 









 





V.




          For the management of the business and for the conduct of the affairs of the Corporation, and
in further definition, limitation and regulation of the powers of the Corporation, of its directors
and of its stockholders or any class thereof, as the case may be, it is further provided that:




     A.



          1. The management of the business and the conduct of the affairs of the Corporation
shall be vested in its Board of Directors. The number of directors which shall constitute the whole
Board of Directors shall be fixed exclusively by one or more resolutions adopted by the Board of
Directors.




          2. Board of Directors.




               a. Subject to the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, following the closing of the initial public
offering pursuant to an effective registration statement under the Securities Act of 1933, as
amended, covering the offer and sale of the Corporation’s Common Stock to the public (the “Initial
Public Offering”), the directors shall be divided into three classes designated as Class I, Class
II and Class III, respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first annual meeting of
stockholders following the closing of the Initial Public Offering, the term of office of the Class
I directors shall expire and Class I directors shall be elected for a full term of three years. At
the second annual meeting of stockholders following the closing of the Initial Public Offering, the
term of office of the Class II directors shall expire and Class II directors shall be elected for a
full term of three years. At the third annual meeting of stockholders following the closing of the
Initial Public Offering, the term of office of the Class III directors shall expire and Class III
directors shall be elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to succeed the directors of
the class whose terms expire at such annual meeting.



               b. During such time or times that the Corporation is subject to Section 2115(b) of the
California General Corporation Law (“CGCL”), Section A.2.a. of this Article V shall not apply and
all directors shall be elected at each annual meeting of stockholders to hold office until the next
annual meeting.



               c. No stockholder entitled to vote at an election for directors may cumulate votes to
which such stockholder is entitled, unless, at the time of such election, the Corporation is
subject to Section 2115(b) of the CGCL. During such time or times that the Corporation is subject
to Section 2115(b) of the CGCL, every stockholder entitled to vote at an election for directors may
cumulate such stockholder’s votes and give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to which such stockholder’s shares are
otherwise entitled, or distribute the stockholder’s votes on the same principle among as many
candidates as such stockholder thinks fit. No stockholder, however, shall be entitled to so
cumulate such stockholder’s votes unless (i) the names of such candidate or candidates have been
placed in nomination prior to the voting and (ii) the stockholder has given notice at the meeting,
prior to the voting, of such stockholder’s intention to cumulate such stockholder’s votes. If any
stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes
for any candidates who have been properly placed in nomination. Under cumulative voting, the
candidates receiving the highest number of votes, up to the number of directors to be elected, are
elected.



 









 





               d. Notwithstanding the foregoing provisions of this section, each director shall serve
until his successor is duly elected and qualified or until his death, resignation or removal. No
decrease in the number of directors constituting the Board of Directors shall shorten the term of
any incumbent director.



          3. Removal of Directors.




               a. During such time or times that the Corporation is subject to Section 2115(b) of the
CGCL, the Board of Directors or any individual director may be removed from office at any time
without cause by the affirmative vote of the holders of at least a majority of the outstanding
shares entitled to vote on such removal; provided, however, that unless the entire Board is
removed, no individual director may be removed when the votes cast against such director’s removal,
or not consenting in writing to such removal, would be sufficient to elect that director if voted
cumulatively at an election which the same total number of votes were cast (or, if such action is
taken by written consent, all shares entitled to vote were voted) and the entire number of
directors authorized at the time of such director’s most recent election were then being elected.



               b. At any time or times that the Corporation is not subject to Section 2115(b) of the
CGCL and subject to any limitations imposed by law, Section A.3.a. above shall no longer apply and
removal shall be as provided in Section 141(k) of the DGCL.



          4. Vacancies.




               a. Subject to the rights of the holders of any series of Preferred Stock, any vacancies
on the Board of Directors resulting from death, resignation, disqualification, removal or other
causes and any newly created directorships resulting from any increase in the number of directors,
shall, unless the Board of Directors determines by resolution that any such vacancies or newly
created directorships shall be filled by the stockholders, except as otherwise provided by law, be
filled only by the affirmative vote of a majority of the directors then in office, even though less
than a quorum of the Board of Directors, and not by the stockholders. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such director’s successor shall
have been elected and qualified.



               b. If at the time of filling any vacancy or any increase in the size of the Board, the
directors then in office shall constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Delaware Court of Chancery may, upon application of
any stockholder or stockholders holding at least 10% of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an election to be held to
fill any such vacancies or newly created directorships, or to replace the directors chosen by the
directors then in offices as aforesaid, which election shall be governed by Section 211 of the
DGCL.



               c. At any time or times that the Company is subject to Section 2115(b) of the CGCL, if,
after the filling of any vacancy by the directors then in office who have been elected by
stockholders shall constitute less than a majority of the directors then in office, then:




               (i) Any holder or holders of an aggregate of 5% or more of the total number of shares
at the time outstanding having the
right to vote for those directors may call a special meeting of stockholders; or




               (ii) The Superior Court of the proper county shall, upon application of such stockholder
or stockholders, summarily order a special meeting of stockholders, to be held to elect



 









 







the entire board, all in accordance with Section 305(c) of the CGCL. The term of office of any
director shall terminate upon that election of a successor.



     B.



          1. Subject to paragraph (h) of Section 43 of the Bylaws, the Board of Directors is
expressly empowered to adopt, amend or repeal the Bylaws of the Company. The stockholders shall
also have power to adopt, amend or repeal the Bylaws of the Company; provided, however, that, in
addition to any vote of the holders of any class or series of stock of the Company required by law
or by this Amended and Restated Certificate of Incorporation, the affirmative vote of the holders
of at least 66-2/3% of the voting power of all of the then-outstanding shares of the capital stock
of the Company entitled to vote generally in the election of directors, voting together as a single
class, shall be required to adopt, amend or repeal any provision of the Bylaws of the Company.




          2. The directors of the Corporation need not be elected by written ballot unless the
Bylaws so provide.




          3. No action shall be taken by the stockholders of the Corporation except at an annual
or special meeting of stockholders called in accordance with the Bylaws or by written consent of
stockholders in accordance with the Bylaws prior to the closing of the Initial Public Offering.
Following the closing of the Initial Public Offering no action shall be taken by the stockholders
by written consent.




          4. Advance notice of stockholder nominations for the election of directors and of
business to be brought by stockholders before any meeting of the stockholders of the Corporation
shall be given in the manner provided in the Bylaws of the Corporation.




VI.




     A. The liability of the directors for monetary damages shall be eliminated to the
fullest extent under applicable law.



     B. Any repeal or modification of this Article VI shall be prospective and shall not
affect the rights under this Article VI in effect at the time of the alleged occurrence of any act
or omission to act giving rise to liability or indemnification.



VII.




     A. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, except as provided in Section B of this Article VII, and all rights
conferred upon the stockholders herein are granted subject to this reservation.



     B. Notwithstanding any other provision of this Amended and Restated Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or series of the voting
stock required by law, this Amended and Restated Certificate of Incorporation or any certificate of
designation of Preferred Stock, the affirmative vote of the holders of at least 66-2/3% of the
voting power of all of the then-outstanding shares of the voting stock, voting together as a single
class, shall be required to alter, amend or repeal Articles V, VI and VII.”