Free Series AA Amended and Restated Certificate of Incorporation - All States

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

[INSERT COMPANY NAME]

[Insert company name], a corporation organized and existing under the
laws of the State of Delaware (the ``Corporation''), certifies that:

A. The name of the Corporation is [insert company name]. The
Corporation's original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on [______].

B. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware, and has been duly approved by
the written consent of the stockholders of the Corporation in accordance
with Section 228 of the General Corporation Law of the State of
Delaware.

C. The text of the Certificate of Incorporation is amended and restated
to read as set forth in EXHIBIT A attached hereto.

IN WITNESS WHEREOF, [insert company name] has caused this Amended and
Restated Certificate of Incorporation to be signed by [insert name of
officer], a duly authorized officer of the Corporation, on [insert
date].



[insert name]

[insert title]

EXHIBIT A

ARTICLE I

The name of the Corporation is [insert company name].

I

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

I

The address of the Corporation's registered office in the State of
Delaware is [insert address]. The name of the registered agent at such
address is [insert name of registered agent].

ARTICLE VI

The total number of shares of stock that the corporation shall have
authority to issue is [insert number in words] ([insert number in
digits]), consisting of [insert number in words] ([insert number in
digits]) shares of Common Stock, $[0.00001] par value per share, and
[insert number in words] ([insert number in digits]) shares of Preferred
Stock, $[0.00001] par value per share. The first Series of Preferred
Stock shall be designated ``Series AA Preferred Stock'' and shall
consist of [insert number in words] ([insert number in digits]) shares.

ARTICLE V

The terms and provisions of the Common Stock and Preferred Stock are as
follows:

Definitions. For purposes of this ARTICLE V, the following definitions
shall apply:

``Conversion Price'' shall mean $[____] per share for the Series AA
Preferred Stock (subject to adjustment from time to time for
Recapitalizations and as otherwise set forth elsewhere herein).

``Corporation'' shall mean [insert company name].

``Distribution'' shall mean the transfer of cash or other property
without consideration whether by way of dividend or otherwise, other
than dividends on Common Stock payable in Common Stock, or the purchase
or redemption of shares of the Corporation by the Corporation for cash
or property other than: (i) repurchases of Common Stock issued to or
held by employees, officers, directors or consultants of the Corporation
or its subsidiaries upon termination of their employment or services
pursuant to agreements providing for the right of said repurchase, (ii)
repurchases of Common Stock issued to or held by employees, officers,
directors or consultants of the Corporation or its subsidiaries pursuant
to rights of first refusal contained in agreements providing for such
right, (iii) repurchase of capital stock of the Corporation in
connection with the settlement of disputes with any stockholder, and
(iv) any other repurchase or redemption of capital stock of the
Corporation approved by the holders of the Common and Preferred Stock of
the Corporation voting as separate classes.

``Liquidation Preference'' shall mean $[_____] per share for the Series
AA Preferred Stock (subject to adjustment from time to time for
Recapitalizations as set forth elsewhere herein).

``Original Issue Price'' shall mean $[_____] per share for the Series
AA Preferred Stock (subject to adjustment from time to time for
Recapitalizations as set forth elsewhere herein).

``Preferred Stock'' shall mean the Series AA Preferred Stock.

``Recapitalization'' shall mean any stock dividend, stock split,
combination of shares, reorganization, recapitalization,
reclassification or other similar event.

Liquidation Rights

Liquidation Preference. In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, the
holders of the Preferred Stock shall be entitled to receive, prior and
in preference to any Distribution of any of the assets of the
Corporation to the holders of the Common Stock by reason of their
ownership of such stock, an amount per share for each share of Preferred
Stock held by them equal to the Liquidation Preference specified for
such share of Preferred Stock, or such lesser amount as may be approved
by the holders of the majority of the outstanding shares of Preferred
Stock. If upon the liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation legally available for
distribution to the holders of the Preferred Stock are insufficient to
permit the payment to such holders of the full amounts specified in this
Section 2(a), then the entire assets of the Corporation legally
available for distribution shall be distributed with equal priority and
pro rata among the holders of the Preferred Stock in proportion to the
full amounts they would otherwise be entitled to receive pursuant to
this Section 2(a).

Remaining Assets. After the payment or setting aside for payment to the
holders of Preferred Stock of the full amounts specified in Section 2(a)
above, the entire remaining assets of the Corporation legally available
for distribution shall be distributed pro rata to holders of the Common
Stock of the Corporation in proportion to the number of shares of Common
Stock held by them.

Shares not Treated as Both Preferred Stock and Common Stock in any
Distribution. Shares of Preferred Stock shall not be entitled to be
converted into shares of Common Stock in order to participate in any
Distribution, or series of Distributions, as shares of Common Stock,
without first foregoing participation in the Distribution, or series of
Distributions, as shares of Preferred Stock.

Reorganization. For purposes of this Section 2, a liquidation,
dissolution or winding up of the Corporation shall be deemed to be
occasioned by, or to include, (i) the acquisition of the Corporation by
another entity by means of any transaction or series of related
transactions to which the Corporation is party (including, without
limitation, any stock acquisition, reorganization, merger or
consolidation but excluding any sale of stock for capital raising
purposes) other than a transaction or series of related transactions in
which the holders of the voting securities of the Corporation
outstanding immediately prior to such transaction or series of related
transactions retain, immediately after such transaction or series of
related transactions, as a result of shares in the Corporation held by
such holders prior to such transaction or series of related
transactions, at least a majority of the total voting power represented
by the outstanding voting securities of the Corporation or such other
surviving or resulting entity (or if the Corporation or such other
surviving or resulting entity is a wholly-owned subsidiary immediately
following such acquisition, its parent); (ii) a sale, lease or other
disposition of all or substantially all of the assets of the Corporation
and its subsidiaries taken as a whole by means of any transaction or
series of related transactions, except where such sale, lease or other
disposition is to a wholly-owned subsidiary of the Corporation; or (iii)
any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary. The treatment of any transaction or series of
related transactions as a liquidation, dissolution or winding up
pursuant to clause (i) or (ii) of the preceding sentence may be waived
with respect to any series of Preferred Stock by the consent or vote of
a majority of the outstanding shares of such series by the consent or
vote of a majority of the outstanding Preferred Stock (voting on an
as-converted basis).

Valuation of Non-Cash Consideration. If any assets of the Corporation
distributed to stockholders in connection with any liquidation,
dissolution, or winding up of the Corporation are other than cash, then
the value of such assets shall be their fair market value as determined
in good faith by the Board of Directors, except that any publicly-traded
securities to be distributed to stockholders in a liquidation,
dissolution, or winding up of the Corporation shall be valued as
follows:

if the securities are then traded on a national securities exchange,
then the value of the securities shall be deemed to be the average of
the closing prices of the securities on such exchange over the ten (10)
trading day period ending five (5) trading days prior to the
Distribution;

if the securities are actively traded over-the-counter, then the value
of the securities shall be deemed to be the average of the closing bid
prices of the securities over the ten (10) trading day period ending
five (5) trading days prior to the Distribution.

In the event of a merger or other acquisition of the Corporation by
another entity, the Distribution date shall be deemed to be the date
such transaction closes.

For the purposes of this subsection 2(e), ``trading day'' shall mean any
day which the exchange or system on which the securities to be
distributed are traded is open and ``closing prices'' or ``closing bid
prices'' shall be deemed to be: (i) for securities traded primarily on
the New York Stock Exchange, the American Stock Exchange or a Nasdaq
market, the last reported trade price or sale price, as the case may be,
at 4:00 p.m., New York time, on that day and (ii) for securities listed
or traded on other exchanges, markets and systems, the market price as
of the end of the regular hours trading period that is generally
accepted as such for such exchange, market or system. If, after the
date hereof, the benchmark times generally accepted in the securities
industry for determining the market price of a stock as of a given
trading day shall change from those set forth above, the fair market
value shall be determined as of such other generally accepted benchmark
times.

Conversion. The holders of the Preferred Stock shall have conversion
rights as follows:

Right to Convert. Each share of Preferred Stock shall be convertible,
at the option of the holder thereof, at any time after the date of
issuance of such share at the office of the Corporation or any transfer
agent for the Preferred Stock, into that number of fully-paid,
nonassessable shares of Common Stock determined by dividing the Original
Issue Price for the relevant series by the Conversion Price for such
series. (The number of shares of Common Stock into which each share of
Preferred Stock of a series may be converted is hereinafter referred to
as the ``Conversion Rate'' for each such series.) Upon any decrease or
increase in the Conversion Price for any series of Preferred Stock, as
described in this Section 3, the Conversion Rate for such series shall
be appropriately increased or decreased.

Automatic Conversion. Each share of Preferred Stock shall automatically
be converted into fully-paid, non-assessable shares of Common Stock at
the then effective Conversion Rate for such share (i) immediately prior
to 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 (the ``Securities Act''), covering
the offer and sale of the Corporation's Common Stock, or (ii) upon the
receipt by the Corporation of a written request for such conversion from
the holders of a majority of the Preferred Stock then outstanding
(voting as a single class and on an as-converted basis), or, if later,
the effective date for conversion specified in such requests (each of
the events referred to in (i) and (ii) are referred to herein as an
``Automatic Conversion Event'').

Mechanics of Conversion. No fractional shares of Common Stock shall be
issued upon conversion of 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 then fair market
value of a share of Common Stock as determined by the Board of
Directors. For such purpose, all shares of Preferred Stock held by each
holder of Preferred Stock shall be aggregated, and any resulting
fractional share of Common Stock shall be paid in cash. Before any
holder of Preferred Stock shall be entitled to convert the same into
full shares of Common Stock, and to receive certificates therefor, he
shall either (A) surrender the certificate or certificates therefor,
duly endorsed, at the office of the Corporation or of any transfer agent
for the Preferred Stock or (B) notify the Corporation or its transfer
agent that such certificates have been lost, stolen or destroyed and
execute an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by it in connection with such
certificates, and shall give written notice to the Corporation at such
office that he elects to convert the same; provided, however, that on
the date of an Automatic Conversion Event, the outstanding shares of
Preferred Stock shall 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 further, however, that the Corporation shall
not be obligated to issue certificates evidencing the shares of Common
Stock issuable upon such Automatic Conversion Event unless either the
certificates evidencing such shares of Preferred Stock are delivered to
the Corporation or its transfer agent as provided above, or the holder
notifies the Corporation or its transfer agent that such certificates
have been lost, 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. On the date
of the occurrence of an Automatic Conversion Event, each holder of
record of shares of Preferred Stock shall be deemed to be the holder of
record of the Common Stock issuable upon such conversion,
notwithstanding that the certificates representing such shares of
Preferred Stock shall not have been surrendered at the office of the
Corporation, that notice from the Corporation shall not have been
received by any holder of record of shares of Preferred Stock, or that
the certificates evidencing such shares of Common Stock shall not then
be actually delivered to such holder.

Adjustments for Subdivisions or Combinations of Common Stock. In the
event the outstanding shares of Common Stock shall be subdivided (by
stock split, by payment of a stock dividend or otherwise), into a
greater number of shares of Common Stock, the Conversion Price of each
series of Preferred Stock in effect immediately prior to such
subdivision shall, concurrently with the effectiveness of such
subdivision, be proportionately decreased. In the event the outstanding
shares of Common Stock shall be combined (by reclassification or
otherwise) into a lesser number of shares of Common Stock, the
Conversion Prices in effect immediately prior to such combination shall,
concurrently with the effectiveness of such combination, be
proportionately increased.

Adjustments for Subdivisions or Combinations of Preferred Stock. In the
event the outstanding shares of Preferred Stock or a series of Preferred
Stock shall be subdivided (by stock split, by payment of a stock
dividend or otherwise), into a greater number of shares of Preferred
Stock, the Original Issue Price and Liquidation Preference of the
affected series of Preferred Stock in effect immediately prior to such
subdivision shall, concurrently with the effectiveness of such
subdivision, be proportionately decreased. In the event the outstanding
shares of Preferred Stock or a series of Preferred Stock shall be
combined (by reclassification or otherwise) into a lesser number of
shares of Preferred Stock, the Original Issue Price and Liquidation
Preference of the affected series of Preferred Stock in effect
immediately prior to such combination shall, concurrently with the
effectiveness of such combination, be proportionately increased.

Adjustments for Reclassification, Exchange and Substitution. Subject to
Section 2 above (``Liquidation Rights''), if the Common Stock issuable
upon conversion of the Preferred Stock shall be changed into the same or
a different number of shares of any other class or classes of stock,
whether by capital reorganization, reclassification or otherwise (other
than a subdivision or combination of shares provided for above), then,
in any such event, in lieu of the number of shares of Common Stock which
the holders would otherwise have been entitled to receive each holder of
such Preferred Stock shall have the right thereafter to convert such
shares of Preferred Stock into a number of shares of such other class or
classes of stock which a holder of the number of shares of Common Stock
deliverable upon conversion of such series of Preferred Stock
immediately before that change would have been entitled to receive in
such reorganization or reclassification, all subject to further
adjustment as provided herein with respect to such other shares.

Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Conversion Price pursuant to this Section 3, the
Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each
holder of Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment
or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Preferred Stock, furnish or cause
to be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price at the time in
effect and (iii) the number of shares of Common Stock and the amount, if
any, of other property which at the time would be received upon the
conversion of Preferred Stock.

Notices of Record Date. In the event that this Corporation shall
propose at any time:

to declare any Distribution upon its Common Stock, whether in cash,
property, stock or other securities, whether or not a regular cash
dividend and whether or not out of earnings or earned surplus;

to effect any reclassification or recapitalization of its Common Stock
outstanding involving a change in the Common Stock; or

to voluntarily liquidate or dissolve or to enter into any transaction
deemed to be a liquidation, dissolution or winding up of the corporation
pursuant to Section 2(d);

then, in connection with each such event, this Corporation shall send to
the holders of the Preferred Stock at least 10 days' prior written
notice of the date on which a record shall be taken for such
Distribution (and specifying the date on which the holders of Common
Stock shall be entitled thereto and, if applicable, the amount and
character of such Distribution) or for determining rights to vote in
respect of the matters referred to in (ii) and (iii) above.

Such written notice shall be given by first class mail (or express
courier), postage prepaid, addressed to the holders of Preferred Stock
at the address for each such holder as shown on the books of the
Corporation and shall be deemed given on the date such notice is mailed.


The notice provisions set forth in this section may be shortened or
waived prospectively or retrospectively by the consent or vote of the
holders of a majority of the Preferred Stock, voting as a single class
and on an as-converted basis.

Reservation of Stock Issuable Upon Conversion. The Corporation shall at
all times reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Preferred Stock, such number of its
shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all then outstanding shares of the 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 will
take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock
to such number of shares as shall be sufficient for such purpose.

Voting

Restricted Class Voting. Except as otherwise expressly provided herein
or as required by law, the holders of Preferred Stock and the holders of
Common Stock shall vote together and not as separate classes.

No Series Voting. Other than as provided herein or required by law,
there shall be no series voting.

Preferred Stock. Each holder of Preferred Stock shall be entitled to
the number of votes equal to the number of shares of Common Stock into
which the shares of Preferred Stock held by such holder could be
converted as of the record date. The holders of shares of the Preferred
Stock shall be entitled to vote on all matters on which the Common Stock
shall be entitled to vote. Holders of Preferred Stock shall be entitled
to notice of any stockholders' meeting in accordance with the Bylaws of
the Corporation. Fractional votes shall not, however, be permitted and
any fractional voting rights resulting from the above formula (after
aggregating all shares into which shares of Preferred Stock held by each
holder could be converted), shall be disregarded.

[Election of Directors. So long as at least [________] shares (as
adjusted for Recapitalizations) of Preferred Stock remain outstanding,
the holders of Preferred Stock, voting as a separate class, shall be
entitled to elect one member of the Corporation's Board of Directors at
each meeting or pursuant to each consent of the Corporation's
stockholders for the election of directors. The holders of Common Stock,
voting as a separate class, shall be entitled to elect [two] members of
the Corporation's Board of Directors at each meeting or pursuant to each
consent of the Corporation's stockholders for the election of directors.
[Any additional members of the Corporation's Board of Directors shall be
elected by the holders of Common Stock and Preferred Stock, voting
together as a single class.]] [include this section only if the Series
AA will have a board member]

Adjustment in Authorized Common Stock. The number of authorized shares
of Common Stock may be increased or decreased (but not below the number
of shares of Common Stock then outstanding) by an affirmative vote of
the holders of a majority of the stock of the Corporation.

Common Stock. Each holder of shares of Common Stock shall be entitled
to one vote for each share thereof held.

Amendments and Changes. As long as any of the Preferred Stock shall be
issued and outstanding, the Corporation shall not, without first
obtaining the approval (by vote or written consent as provided by law)
of the holders of more than 50% of the outstanding shares of the
Preferred Stock:

amend, alter or repeal any provision of the Certificate of Incorporation
of the Corporation if such action would adversely alter the rights,
preferences, privileges or powers of, or restrictions provided for the
benefit of the Preferred Stock or any series thereof;

increase or decrease (other than for decreases resulting from conversion
of the Preferred Stock) the authorized number of shares of Preferred
Stock or any series thereof; or

enter into any transaction or series of related transactions deemed to
be a liquidation, dissolution or winding up of the Corporation pursuant
to Section 2(d) above.

Reissuance of Preferred Stock. In the event that any shares of
Preferred Stock shall be converted pursuant to Section 3 or otherwise
repurchased by the Corporation, the shares so converted, redeemed or
repurchased shall be cancelled and shall not be issuable by this
Corporation.

Notices. Any notice required by the provisions of this ARTICLE V to be
given to the holders of Preferred Stock shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to
each holder of record at such holder's address appearing on the books of
the Corporation.

ARTICLE VI

The Corporation is to have perpetual existence.

ARTICLE VII

Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.

ARTICLE VIII

Unless otherwise set forth herein, the number of directors which
constitute the Board of Directors of the Corporation shall be designated
in the Bylaws of the Corporation.

ARTICLE IX

In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the Bylaws of the Corporation.

ARTICLE X

1. To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or as may hereafter be amended, a director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for a breach of fiduciary duty as a
director. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.

2. The Corporation shall have the power to indemnify, to the extent
permitted by the Delaware General Corporation Law, as it presently
exists or may hereafter be amended from time to time, any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a ``Proceeding'') by reason
of the fact that he or she is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in
connection with any such Proceeding.

3. Neither any amendment nor repeal of this ARTICLE X, nor the adoption
of any provision of this Corporation's Certificate of Incorporation
inconsistent with this ARTICLE X, shall eliminate or reduce the effect
of this ARTICLE X, in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this ARTICLE X, would
accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.

ARTICLE XI

Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside of
the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the Bylaws of the
Corporation.

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This Amended and Restated Certificate of Incorporation and all of the
Series AA financing documents on this website have been prepared by
Wilson Sonsini Goodrich & Rosati for informational purposes only and do
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Rosati expressly disclaims all liability in respect to actions taken or
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