20091217Application.pdf

BINGHAM
, 1
1
Boston
Hartford
Hong Kong
London
Los Angeles
New York
Orange County
San Francisco
Santa Monica
Silicon Valley
Tokyo
Washington
Bingham McCutchen UP
2020 K Street NW
Washington. DC
20006'1806
T +1.202.373.6000
F +1.202.373.6001
bingham.com
ORIGINAL
RE i'! ,.: .~. t.-.'/ L""
l009 DEC l'7 AM 10: 43
NguyenT. Vu
Direct Phone: [phone]
Direct Fax: [phone]
nguyen. vu~bingham.com
December 16,2009 :rpr - i- ÒC(-q i
VI OVERNIGHT MAI
Ms. Jean D. Jewell, Secretar
Idaho Public Utilties Commssion
472 West Washington Street
Boise, Idaho 83702
Re: IntelePeer, Inc. - Application for a Certificate of Public Convenience
and Necessity to Provide Local Exchange and Access
Telecommunications Servces.
Dear Ms. Jewell:
IntelePeer, Inc. ("IntelePeer"), by its undersigned counsel, hereby submits an original and
seven (7) copies of the above-reference application for a Certificate of Public
Convenience and Necessity to provide local exchange telecommuncations Servces in
the State ofIdaho.
Please note that the information provided in Exhbit C is proprietary and confdential as it
contains sensitive financial information. As a result, IntelePeer respectfully requests
confidential treatment of this informtion by the Commssion and has fied this
informtion under seaL. Confidential treatment of the information contained in Exhibit C
is necessary to avoid commercial and competitive injur.
A copy of IntelePeer's ilustrative local and interexchange services tarff is attached as
Exhibit D to the Application, and a copy of IntelePeer's ilustrative access servces tarff
is attached as Exhbit E. Both tarffs are also enclosed on a diskette in MS Word formt.
Please date stamp the enclosed extra copy of this filing and retur it in the self-addressed,
postage paid envelope provided. Should you have any questions concernng this fiing,
please do not hesitate to contact Nguyen Vu at [phone].
Respectfully submitted,
~('Vv
Ronald W. Del Sesto, Jr.
Nguyen T. Vu
Counsel for IntelePeer, Inc.
A/73244836. i
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
i\f~ '~-i
20Ug DEC \ '7 AM 10= 43
IntelePeer, Inc.
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In the Matter of the Application of
Docket No.
For a Certificate of Public Convenience
and Necessity to Provide Local Exchange
and Access Telecommuncations Services
'XfJ: -t--O't -Of
APPLICATION OF INTELEPEER, INC.
IntelePeer, Inc. ("IntelePeer" or "Applicant"), by its undersigned attorneys, and pursuant
to Idaho Code §§61-526-528, IDAPA 31.01.01.111, and Procedural Order No. 26665, hereby
applies to the Idaho Public Utilties Commssion ("Commission") for a Certificate of Public
Convenience and Necessity to authorize IntelePeer to provide facilities-based and resold local
exchange and access telecommunications service in the State of Idaho.
In support of its application, IntelePeer provides the following:
I. Proposed Services
1. IntelePeer seeks authority to provide facilities-based and resold local exchange
and access telecommunications services to and from all points in the State ofIdaho.
2. IntelePeer will provide fully managed, hosted, on-demand peering infastructue
to directly exchange voice traffic over IP or legacy TDM networks between any application and
any telephony device. Specifically, IntelePeer seeks authority to provide facilities-based and
resold local exchange and interexchange telecommunications services in Idaho. IntelePeer wil
offer basic local exchange services, custom callng features, and interexchange toll services,
including toll free services, to business and enterprise customers.
3. While IntelePeer wil not initially offer prepaid local exchange and interexchange
services, IntelePeer may offer such services in the future. IntelePeer may also provide access
AJ73184381.
services to payphone service providers. IntelePeer wil offer basic local exchange services,
custom callng features, and interexchange toll services, including toll free services, to business
and enterprise customers. Facilities-based local exchange service will be provided via (1)
commercial wholesale agreement with incumbents, (2) IntelePeer's own facilities, or (3) a
combination thereof. Initially, toll services wil be provided via IntelePeer's underlying long
distace carrier. IntelePeer, however, seeks the full range of resold and facilities-based local
exchange and interexchange authority so that it can have the flexibilty in provisioning services
in the futue.
4. IntelePeer is currently in the process of developing its marketing strategy for the
State of Idaho. IntelePeer will utilze a professionally trained sales force to market its services
and wil comply with all Commission rules and regulations in marketing its services in the State
of Idaho.
II. Form of Business
1. IntelePeer is a competitive provider of local and long distance phone services.
IntelePeer is curently authorized to provide telecommuncations services in the states of Colorado,
the Distrct of Columbia, Florida, Georgia, Ilinois, Indiana, Marland, Massachusett, New York,
Oregon, Rhode Island, Texas and Washington. IntelePeer is in the process of obtaining similar
authority to provide telecommunications services in all other states. IntelePeer has not been
denied requested certification in any jurisdiction.
2. IntelePeer, Inc. is a corporation organzed under the laws of the State of
Delaware.
3. IntelePeer may be reached at its principal place of business:
IntelePeer, Inc.
2855 Campus Drive, Suite 200
AJ73184381.2
San Mateo, CA 94403
[phone] (Tel)
[phone] (Fax)
IntelePeer does not have a principal business address in Idaho.
4. A copy of its Aricles of Incorporation is attched hereto as Exhibit A.
5. IntelePeer's authority to transact business as a foreign corporation in Idaho is
attched hereto as Exhibit B.
6. IntelePeer's registered agent for service in Idaho is:
Corporation Service Company
1401 Shoreline Drive, Suite 2
Boise, ID 83702
7. IntelePeer is privately held and is backed by venture capital firms
VantagePoint Venture Parners, Kennet Venture Parners, NorthCap Parners and EDF Ventures.
VantagePoint Venture Parers
1001 Bayhil Drive
Suite 300
San Bruo, CA 94066
Kennet Venture Parners
950 Tower Lane
Suite 1710
Foster City, CA 94404
NorthCap Parners
Sundkogsgade 7
P.O. Box 2672
DK-2100 Copenhagen
Denmark
EDF Ventures
425 North Main Street
Ann Arbor, MI 48104-1147
8. IntelePeer's officers are:
Haydar Haba, Founder/Chief Visionary Officer
Fran Fawzi, CEO & Chairman of the Board
Ai73184381.3
Andre Simone, Vice President
All officers can be reached at Applicant's principle place of business.
9. IntelePeer has one subsidiar, AppworX.
10. Correspondence pertaining to this Application should be directed to IntelePeer's
counsel:
Ronald W. Del Sesto, Jr.
Nguyen T. Vu
Bingham McCutchen
2020 K St. NW
Washington, DC 20006
Phone: [phone]
Fax: [phone]
r.delsesto~bingham.com
nguyen.vu~bingham.com
III. Telecommunications Service
1. IntelePeer intends to begin providing service 10 Idaho after it obtains
authorization to do so. It anticipates that it will enter into the appropriate interconnection and
service arangements with Qwest Corporation ("Qwest") to offer such services.
2. IntelePeer proposes to provide resold and facilities-based local exchange
telecommuncations services to both business and residential customers in the State of Idaho.
IV. Service Territory
1. IntelePeer intends to provide service throughout the State of Idaho. IntelePeer
intends to provide service in the. areas served by Qwest and does not plan to provide service in
areas of any small or rual local exchange cariers. However, IntelePeer seeks statewide
authority so that it may expand into other service areas as market conditions warant and as
additional service areas become open to competition.
Ai73184381.4
2. IntelePeer wil offer basic local exchange services to customer in the State of
Idaho. IntelePeer anticipates that it will offer facilities-based local exchange service via
commercial wholesale agreements with incumbents. IntelePeer, however, seeks the full range of
resold and facilties-based local exchange authority so that it can have flexibilty in provisioning
its services in the future.
3. IntelePeer wil compete directly with Qwest Corporation for the provision of local
exchange telecommunications services.
4. IntelePeer does not currently own facilities or property in Idaho.
iv. Financial Information
Financial information demonstrating IntelePeer's financial qualifications is provided
under seal as Exhibit C. As shown in the attached information, IntelePeer is financially
qualified to operate within the State of Idaho.
V. "Illustrative" Tariff Filngs
IntelePeer's proposed initial local and interexchange tariff is attached as Exhibit D.l
VI. Customer Contacts
Intelepeer's general e-mail address for all Commssion informal customer complaints:
cs~intelepeer.com, or online at
htt://ww.intelepeer.com/contactu/contactus. php.
IntelePeer's 24-hour customer service number is: [phone].
Individual responsible for complaints:
Andre Simone, Chief Financial Officer
2855 Campus Drive, Suite 200
San Mateo, CA 94403
[phone] (Tel)
[phone] (Fax)
l Concurent with this instant Application, IntelePeer is fiing a Registration as a Provider of
Interexchange Telecommunications Services with the Commission.
Ai73184381.5
Email: asimone~intelepeer.com
4. The contact for the Commission Staff for resolving matters concerning rates and price
lists or tariffs are as follows:
Andre Simone, Chief Financial Officer
2855 Campus Drive, Suite 200
San Mateo, CA 94403
[phone] (Tel)
[phone] (Fax)
Email: asimone~intelepeer.com
5. The contact for the Commission Staff for general business and regulatory matters of
IntelePeer following certification should be directed to:
Andre Simone, Chief Financial Officer
2855 Campus Drive, Suite 200
San Mateo, CA 94403
[phone] (Tel)
[phone] (Fax)
Email: asimone~intelepeer.com
VIII. Interconnection Agreements
IntelePeer has not yet initiated interconnection negotiations but intends to do so upon
being granted authority by the Commission. Once IntelePeer has conducted negotiations and
reached agreements either by negotiation or arbitration, IntelePeer wil fie copies of them with
the Commission for its approvaL.
IX. Compliance with Commission Rules
Attached hereto is a sworn verification executed by Applicant stating that the Applicant
agrees to comply with all Idaho laws and Commission rules and regulation.
X. Escrow Account or Security Bond
Should IntelePeer decide to require advance deposits from its customers, it will enter into
an escrow agreement with a bonded escrow agent prior to offering telecommunications services
Ai73184381.6
in Idaho. IntelePeer will comply with all applicable Idaho laws and Commission rules and
regulations regarding advance customer deposits. Should IntelePeer decide to require advance
deposits, IntelePeer wil fie a copy of its escrow agreement upon commission's request.
XI. Conclusion
As demonstrated by this application and pursuant to Idaho Code §§61-526-528, IDAPA
31.01.01.111, and Procedural Order No. 26665, IntelePeer's expertise in the telecommunications
sector wil permit it to select the most economic and effcient services, thereby providing
customers with an excellent combination of price, quality, and customer service. Accordingly,
IntelePeer anticipates its proposed service will increase consumer choice of innovativei
diversified, and reliable service offerings. The provision of more affordable and available local
telecommunications services will promote the health, welfare and economic well-being of the
citizens of Idaho. IntelePeer respectfully submits that the public interest, convenience, and
necessity would be furthered by a grant of this Application for the authority to provide all types
of facilities-based and resold local telecommunications services.
Ai73184381.7
WHEREFORE, IntelePeer, Inc., respectfully requests that the Idaho Public Utilties
Commission issue a Certificate of Public Convenience and Necessity authorizing IntelePeer to
provide resold and facilities-based local exchange telecommunications services within the State
of Idaho.
Respectfully Submitted,
d!J' W~l So.to, Jr.
Nguyen T. Vu
Bingham McCutchen
2020K St. NW
Washington, DC 20006
Phone: [phone]
Fax: [phone]
r.delsesto~bingham.com
nguyen. vu~bingham.com
Counsel for IntelePeer, Inc.
Dated: December 16, 2009
Ai73184381.8
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Verification
Ai73184381.
EXHIBITS
Articles of Incorporation
Authority to Transact Business as a Foreign Corporation
Financial Statements
(CONFIDENTIAL - Submitted Under Seal)
Ilustrative Local and Interexchange Tariff
Ilustrative Access Services Tariff
9
EXHIBIT A
Aricles of Incorporation
Ai73 184381.10
Ðe(aware PAGE 1
fJ !first State
I ,BAIE2' SMI2'H WINDSOR, SEC.R2'ARY OF S2'A2'E OF 2'BE S2'A!l OF
DELAWA, DO BEREY CBR2'IFY 2'BE A2'2'ACHED IS A 2'Rt7 AND CO.RC2'
COPY OF 2'BE RES2'A2'ED CER2'IFICA2'E OF "IN!lLEPEBR, INC.", FILED IN
2'BIS OFFICE ON 2'BE 2'BIRTY-FIRS2' DAY OF OC2'OBER, A.D. 2008, A2' 2
O'CLOCK P.M.
A FILED COPY OF 2'HIS CER2'IFICA!l HA BEEN FORWARED 2'0 2'BE
NEW CA2'LE COUNY RECORDER OF DEEDS.
~~~9f~
4231218 8100
081083618
Harriet Smith Windsr, secretry of State
AU'BB2'ICA2'ION: 6944242
DA2'E: 10-31-08
AMED & RESTATE
CETICATE OF INCORPRATION
OF
lNELEPEER, INC.
State oL Deawaseta oL StateDiviion of CoationDeva 02:01 .l 10/31/2008
FI 02:00 ØI 10/31/2008
SR 081083618 - 4231218 FI
IntelePeer, Inc.. a coortion organized and exstg under and by vire of the
provisions of the General Coporation Law of the Sta of Delawar (the "Gera Corpran Lø"),
DOES HEREBY CETI:
FIT: That the name of this Corpraon is IntelePeer, Inc. and that ths Corporaon
was onginally incora pursuant to the Geera Corporaon Law on Octber 5. 200 under the name
Voex,Inc.
SECOND: Tht the Boa of Dirors duly adopte resolutons proposing to amend and
restat the Cerficat of Incorporation of this Corporaon, declarg sad amendment and restaement to
be advisable and in the best interests of this Corporaon and its stockholder, and autorizng the
approprate offcers of this Cororation to solicit the consent of the stockhlders therefor, which
resolution settng fort the propose amendment and restaent is as follows:
REOLVE, that the Cerifcate of htcorpraton of this Corporation be amended and
reted in its entirety as follows (the "Red Cetøt'j:
ARTICL I'
The name of this Corporaton is IntelePeer, Inc. (the "Corpratl1i).
ARTICLD
The addrss of the registered offce of this Corporation in the Sta of Delawar is
2711 Centeile Road Sui 40, in the Cit of Wilingtn. County of Newcastle 19808. The nae of
its registd agent at such addrss is Corporation Serce Company.
ARTiCLm
The natu of the business or purposes to be conducte or promoted is to engage in any
lawfl ac or actvity for which corporaons may be orgiz under the Gener Corpration Law.
ARTICL IV
A. Authorition of Stok. This Cooration is authorized to issue two classes of
stock to be designte resvely, common stok and prefer stock. The tot nwnber of shares th
this Corporation is authori to issue is 80,000,000 shars of Common Stock, par value $0.0001 per
sh (the "Commn Stocl') and 43,760,592 shas of Prfer Stock. par value $0.001 pe sha (the
"Prfered Stk"). The Prferrd Sto shall be divided into thee series. The fi series of Prefe
Stock shal consist of 1,280,210 shars and shall be designted "Ser ¿o Prefemd Stck." The send
series of Prfer Stock shal consist of 24,730,382 shas and shll be designated "Seri B Preferrd
Stoc." The third series of Prferr Stock shall consist of 17,750.000 shs and shall be designte
"Serie C Prfer Stcl'.
WBST\ISS96S.8 -1-
Irspecive of my contrar provisions contained in Section 242(b )(2) of the Geera
Corporation Law, the number of authonzed shas of Common Stock may be increaed or dec (but
not below the nwnber of shas then outsding) by the holders of sbars of Common Stk votig
togeter with the bolders of sha of Prferr Stok as a single clas (on an as-convertd to Common
Stock bais), and the holders of shars of Common Stok shal not be entitled to a separ clas vote with
respt therto.
B. Rights, Prferençes and Resctons oflrrred Stk. The right prefernces,
privileges and restctons grted to and imposed on the Prfer Stock are as set fort below in this
Arcle N(B).
1. Dividend Provisions.
(a) The holders of shares of Preferr Stock shal be entled to receive divdends,
out of any assets legaly available thereor, prior and in prence to any declaron or payment of any
dividend (pyable oter th in Common Stock or oter securities an rights converble into or entitlng
the holder thereof to reive, diry or indirtly, additional shares of Common Stock of this
Corpration) on the Common Stock of this Corporaon, at the applicable Dividend Rate (as defied
below), payable wben, as and ü declard by the Board of Dirctrs. Such dividends shall not be
cumulative. Decla but unpaid dividends with respect to a sh of Preferr Stok sh, upon
conversion of such shar to Common Stock, be paid to the extet asset are lely available therefor
either in cash or in Common Stock (value at th fair market value on the date of payment as deted
by the Boar of Directors of ths Corporon). The holders of the outstadig Preferr Stock can wave
any dividend preferece that such holders shal be entitled to receive under ths Section 1 upon the
afrmative vote or writtn conset of th holders. of at leat 66% of the sha of Prfer Stok then
outsanding (votig togeter as a single class and not as separat sees, and on m as-convertd basis).
For purposes of this subsecon l(a), "Dividnd Ra~ shall mea (i) $0.0368 per annum for each sha of
Seres A Prferrd Stock (as adjusted for any stck splits, stock dividends, combinations, subdivisions,
reapitalizons or the like with repe to the Seres A Preferr Stock) (ii) $0.0590 per anum for eah
shar of Series B Preer Stok (as adjus for any stck splits stock dividends, combinations
subdivision, recapitizations or the like with repe to the Series B Prferre Stock) and (il) SO.0848
pe anum for eah sha of Seres C Prfer Stok (as adjus for any stock splits, stock dividends
combintions, subdvisions, reapitaiztions or the like with respet to the Seres C Prferrd Stock).
(b) Upon the Conveion of any shares of Series A Prferred Stock, Series B
Preferrd Stock or Series C Prferr Stock into Common Stk as provided in Secon 4, all then acrued
dividends on such shars that ar undeclad as of the date of Conversion shl be waied and all Seres A
Preferrd Stock Sees B Prrred Stok and Senes C Prfed Stok dividends shl ce to iw on
such conver sh.
(c) So long as any shares of Series B Preferred Stock or Series C Preferred
Stock shall be outstadig, no dividen, whether in cah or prpe, shall be pad or declar nor sha
any other dibution be ma, on any Sees A Preer Stk or Common Stok, nor shall an shes of
any Series A Prfered Stock or Common Stock of the Corpration be purhaed, redeemed, or
otherwise acquired for value by the Corporation (except for acquisitions of Common Stok by the
Corporation purt to agreements which peit the Corporation to repurchas such shs upon
terminaton of serices to the Corporation or in exercise of the Corpraon's right of firs refusa upon a
proposed trsfer) until all dividends (se fort in Secon l(a) above) on the Series B Prferrd Stok and
Series C Pre Stock shall have be paid or declar and set apar. The provisions ofthis Section l(c)
shall not, however, aply to (i) a dividend payable in Common Stock, or (ii) any repurchase of any
outding securties of the Corration that is approved by the Corpraon's Bo of Dirs with such
WET\ 1 559665.8 -2-
..
apprva to include the appva of ea of the Sees B Dirtor (as defed below) and1h Series C Di
(as dened belo).
(d) So long as any shares of Series A Preferred Stock shall be outsding, no
dividend, whether in cas or propert, shal be paid or decla nor shal any ot diibuton be mad on
any Common Stk, no shal an sh of any Common St of the Corpon be purhaed, reeeed,
or otherse acui for value by the Coration (except for acquisitions of Common Stock by the
Corporation puua to agents which per th Coron to reuras such sha upon teinat
of seice to the Corpraon or in exercise of the Corporation's right of first refusa upon a proposed
transfer) until aJI diidends (se fort in Secn l(a) abve) on the Ser A Prfer Sto shn hae be
pad or declar and set apar. The provisions of this Secton l(d) shall not, howeer, apply to (i) a dividend
payable in Common Stok, or (ü) any reurhase of any outsding securties of the Corpration tht is
approved by the Corpraion's Boar of Dirctrs.
(e) Subject to the foregoing clauses (a), (b), (0), and (d), afr payment of
dividends describe in Setion l(a), any additiona dividends or distbutions shall be distrbute out of
any assets legay available thefor, payable when, as an if deelad by the Boar of Dictors, among
aU holders of Commn Stock and Prferrd Stock in proporton to the number of shars of Common
. Stock tht one held anor would be held by each such bolder if all sha of Prefer Stok wer
conver to Common Stock at the th effve coversion rate.
2. Liquidation Prerce. In the event of any Liquidaon Event (as defined
below), eiter volunta or involunta, distrbution of the proeeds of such Liquidaton Even (the
"Prceds) of this Corpraon to the stockholder of this Corpraon shal be made in the following
maner:
(a) the holders of the Seres C Prferred Stock shall be entitled to reeive, prior and
in preferee to any distribution of th Pr to the holder of the Sees B Prfer Stock, Seris A
Prefer Stock and/or the Common Stok, by reon of their ownership of such stok, an amount equa
to the Orgil Issue Prce per sha (as defin below) oftle Series C Prferr Stock, plus al accru or
decla but unpaid dividends on suc shar, for each shar of Series C Prferrd Stok then held by
them. If upon the occurnce of such event, the Procs thus distbuted among the holders of
the Series
C Prferr Stock shal be insufcient to pennit the payment to such holders of the full aforesaid
prferetial amounts then the entire Preds legy available for distibution shall be dist'but rataly
among the holder of the Series C Preferr Stok in prporton to the full preferetial amount th eah
such holder is otherse entitled to reive.
(b) upon the completion of the distrbution to the holder of Series C Preferr
re by subsetion (a) of this Section 2 and before distbuton of any remaining Prees to the
holders of Seres A Prferr Stok and/or the Common Stock or any fuer distbution of the remaing
Prcees to the holder of Seres C Preferd Stock, the holder of the Series B Prfed Stck sh be
entitled to receive by reaon of their ownersip of such stck, an amount eqal to the Origial Issue Prce
per shar (as defied below) of the Series B Prferr Stck, plus all accrued or declad but. unpaid
dividends on such sh, for each share of Seres B Prferr Stock then held by them. ir, upon the
occurence of such event, the remaining Preeds available for distbution among the holders of the
Series B Prefed Stock af completion of the distrbution to the holder of Series C Prferrd Stck
reuired by subsecon (a) of this Section 2 shall be insufcient to peit th payment to the holders of
the Series B Prefeed Stok of the full aforesd prferetial amounts, then the entir reaining Prce
legally available for distbution aft completion of the distibuton to the bolders of Seres C Prfet
Stock requied by subsetion (a) of ths Secion 2 shll be distbuted ratly among the holders of the
WEST\1SS966S.8 -3-
Series B Prefer Stock in proporton to th ful preferntial amoWlt that each such holder is otherwse
entitled to reeive.
(c) upn th completion of the distrbuton to the holders of Series C Prer and
Series B Prefer Stock reui by subsecons (a) and (b) of this Secon 2 and before distrbution of
any remainig Prceeds to the holder of the Common Stock or any furter distbution of the remaing
Procds to the holders of Series C Prfed Stok and Series B Preferrd Stock, the holders of the Seres
A Prferr Stok shall be entitled to reive, by reasn of their ownership of sucb stoc~ an amount equa
to the Orgi Isse Price per sha (as dened below) of the Seres A Prfer Stoc~ plus al accrued
or declar but unpaid diviends on such shar, for eah shar of Seres A Pred Stok then held by
them. If, upon the occurnce of such event, the reing Proeed available for distnbution to the
Series A Prfer Stock afer copleton of the distrbution to the holders of Series C Prferr Stock
and Series B Preferr Stock requird by subseon (a) an (b) oftMs Section 2, shall be insuffcient to
perit the paymen to such holdes of th ful aforesad prefetial amounts, then such remaing
Proceeds legaly available for distrbution afer completon of the distbution to the holders of Seres C
Prfeed Stock and Seres B Preferd Stock reuire by subsectons (a) and (b) of this Section 2 shal be
distrbuted rataly among the holders of the Series A Prerrd Stock in proporton to the full prerental
amount that eah such holder is otherwise entitled to reeive.
For purposes of this Restted Certficat, "Orinal Issue Pr~' for the Series A
Prfer Stock. the Series B Preferred Stok and the Series C Preferr Stck sha mean $0.46 per shar,
$0.7374 per sha, and $1.0597 per sh, reely (eah as adjust for any stk splits, stk
dividends, combinations, subdivisions, recaitalizations or the like with repect to such sees of Prfeed
Stok).
(d) Upon completon of the distrbutons reuire by subsections (a), (b) and (c) of
this Section 2, al of the remaiing Prees shall be distbuted among the holders of Common Stock and
Preferd Stock pro ra and with equa pror based on the number of shas of Common Stock held by
each such holder, with the sha of Prferd Stock being trea for this pure as if they had been
conver to shars of Common Stok at the th applicable Converion Rate.
(e) (i) For purpses of this Seti 2, a "Luuill Eiien' shall include:
(A) any rergiztion by way of shar exchane, consolídaon or merger, in on tron or series ofrela tranon (ea a "combinon 1rsation"), in whch the Con is a constu coon or
is a pa wi another en if as a reult of su combination transaction~ the voting securities of the
Corporation that ar outstading immediately prior to the consution of such combinaton trion
(oter th any such seurties th ar held by an "Acqg Stockholder," as def below) do no reor ar not convert into, securties of the surivig entity of such combintion trtion (or such
surving enty's parnt enti if the surving enti is owned by the pant enty) that imedly af
the coaton of suc cobin tr, toge po at lea a majori of th tota votg powe
of al sees of suc sug enty (or its pat en, if applicable) th are outding immedatly
afr the consumaton of such combinon trsacon includig securities of such suivig enti (or its
parnt enty, if applicale) th ar held by th Acqug Stokholder; (B) a coinon trsation in
which stckholder of the Coration sell or othrwse trsfe fo considration votig sewities of th
Corpraion th reent at lea fift pet (500) of the tota votig power of all then outding
securties oftbe Coipration; (C) a sale, transfer, lea or other disposition of all or substatially all of the
asse of the Corpraon (includin an exclusive lice of all or sutily al of the Coraon's
inllectu prpe); or (D) a liquidaton, disoluton or wig up of the Cotion. For pur of this
Secon 2, an "Acquiing Stokholder" mea a stkholder or stckholders of the Corporation that (i) mergs
or combines with the Corporation in such cobinon tnsaeon or (ü) own or contrls a major of th
voting power of anoth ent that mer or cobines wit the Corpraon in such combinon tnon.
WES'NISS96S.8 -4-
For purses of Secon 2(e)(i)), a "combinon tron" shl not inlude a finacing effct by the
Coon for cait raing pmposs. The trent of any pacular trantion or seres of related
trsaons as a Liquidaon Event may be waied by the vot or wrttn conset of the holder of at leat
66% of the outstading Series B and Series C Prferr Stock (votig togeter as a sine clas and not as
sepate seres, and on an aswconverted basis).
(ii) In any Liquidation Event, ifany porton of the Procees reeived by this
Corpration or its stkholder is other th ca its value will be deeed its fair marke value as
determined in god faith by the Boar of Dirrs of th Corpration (including the approval of the
Series B Dire (as defied 1?elow) and Series C Dirctr (as defi below)), uness otherise
determined puruat to the defmitie agent governing such trsacton. Any secures shal be
valued as follows:
(A) Securities not subjec to invesent let or other similar
restrctions on fr marketabilty covere by (B) below:
(1) If tred on a securitis exchage or though the Nas
Nationa Maket, the value shall be deeed to be the average of the closing pris of the securities on
such exchange or sytem over the thir (30) tring-dy perod ending the (3) trading days prior to the
closing of the Liquidation Event;
(2) If acvely tred over-the-ounr, the value shall be
deemed to be the aver of the closing bid or sale prices (whichever is applicable) over the th (30)
trding-dy perod ending th (3) tring days prior to the closing of the Liquidaon Event; and
(3) If ther is no active public maket, the value shall be the
fair market value therf, as mutully deteiined in goo faith by the Boar of Dirtors of th
Corpration (including the approval of the Series B Director and Series C Dirtor).
(B) The meod of valtion of secures subject to investent letr
or other restrictions on fre marketilty (other th rections aring solely by vie of a
stolder's sttus as an afliate or fonner afliate) shall be to make an approriat discount from the
market value detrmined as above in (A) (l), (2) or (3) to reflect the aproxiate fa maket value
theref, as detrmined in good fait by the Boar of Diretor of th Corpration (including the apprva
of tho Senes B Dirr and Senes C Direor).
(ii) For purpses of determining wheter the holder of the Prferd Stok
have reived all amounts due to them under Sections 2(a), 2(b) and 2(c) above, the Prces disbut
or distrbutable to such holders of Prfer Stock shall include only cah and other propert which such
holder of Prfe Stok receive upon the closing of the tron constituting a Liqudation Event
uner Secon 2(eXi), and which cash and other propert is not subjec to an "ea ouf or simila
contingency, or subject to escrow or similar risk of forfeitre (the "Luulon Eve Clsi
Proeds''. If subsequently the holders of Prferrd Stock reeive adtional cash and other
prope thrugh an "ear out' or a releae upon th occurrence of a. contingency, and which additionaJ
cah and oter prope is not subject to a risk of foIfeitu (the .. Liqlldtn Bv P08Closing
Pred"), then at the tie the holders of Preferre Stock reeive the Liquidation Event Post~Closing
Proce such Prds wiU be deemed "received' by the holders of Prferr Stock under Secons 2(a),
. 2(b) and 2(0) above.
(iv) Notice of Transaeton. The Corpon shl give eah holder of rerd
of Series A Prferr Stock, Series B Prfed Stock and Series C Prefer Stck prior writen notice of
WES1ì1SS96S.8 -5-
any transacon describe in Section 2(eXi) in connecon with mateals delivere to stockholders in
connection with the approval of such trsacon not lat than fift (15) days pror to the stockholder'
meeting caled to approve such trsaction, or fifteen (15) days prior to the closng of such tracon,
whichever is ealie, and shall also notify such holder in wrg of the fmal approval of such trsation.
The firs of such notices shall desn'b the matrial tens and conditions of the impending trnsacon and
the prvisions of ths Section 2, and the Corporaon shll thereftr give such holders prompt notice of
any material chages. The trsation shall in no event tae pla sooner than fift (15) days afer the
Corpration has given the first notice provided for herein or sooner th te (10) days afr this
corporaion has given notice of any materal changes provided for herin.
(v) Waiver of Notice. The holders of at least 66% of the outstding shars
of Prfer Stok may, at any time upon writt notice to the Corpration, waive any notice provisions
specified herin for the benefit of such holder, and any such waiver sh be binding upon th holder of
all such secties.
3. Redmption.
(a) Redemon Reuest. Subject to the tes and conditions of
this Secon 3 and
subject to any liquidation preference rights which may have been preiosly invoked mider Secon 2
heref; to th ex th any outdbg sh of Se C Prfe St and Sees B Pre Stck have
no be reeeed or COVer in Co Stok at lea th (3) days pror to the fi da se for
repton the Coraon sh~ upn reivig a wrtt rees at any tie af'Septetnbe 30, 2013,
signed by th holde of at leat 66% of the then outtang shs of Seres C Pr Stk and Sees B
Pr~fer Stk (voting together as a single class and not as sepa series) to th ex it may lawflly do
so, reeem, (a "~ on the da th (3) month follow it reipt of su wr reemon
request and on the la day of eah calen qua there (eah refed to here as a "Reden
Dat, all the number of Seres C Prferr Stok and Series B Prferr Stock th ar outsdig on the
da the Coraon reves such wrtt reempton reuet. Th Se C Reption Price (as def
below) an th Seies B Reempt Pric (as de belo) shl be pa ft an so of fuds legaly
available therfor, until all outding sh of Seres C Preerre Stck and Series B Prfer Stok to be
reeemed have ben redeed or converd to Common Stok as provided in Secon 4 or the re for
reempton ha bee wiwn orte as prvide below.
(b) Withdrwal or Termination ofReguet. A redemption request ma be witdrwn
or terminat upon the reuest oftbe holder of at least 66% of the ised an out shs of Series C
Prer Stk and Series B Preferd Stoc (voting togeter as a sigle cla and not as see series) on 1he
date of the reues for withdrawa or terminaton, but only with respet to the shs of Sees C Prefered
Stock and Senes B Prfe Stock that had not been rec:eemed in full in cash as of such Redemption
Date. After any such withwn or teinted reemption request the shars of Series C Prferrd Stock
and Series B Preferred Stock shall aga be suject to retion pu to this Seion 3 upon the reques
oftb holde of Series C Prfered Stok and Seres B Pr Stock as prvided aboe.
(c) Redempton Prce. Upo a Redepton of Series C Pr Stok and the Seres
B Prferr Stok, the Corpration shall pay in cah to the holder of a reeemed shar a sum eqal to the
Origi Is Prce multiplied by two. plu delad but Wlpad divideds (the "Redtin Pre"). The
Rempton Pr shl be pad in cah.
(d) Holder Notice. At lea fiften (15) but no more than thirt (30) days prior to the
Reempton Date, if the holder of Senes C Prferrd Stok and Series C Prferrd Stock exercise their
righ of Reemption puruat to Seon 3(a) abve, wrtt notce shal be mailed fist class postae
prepaid. to each holder of reor (at the close of business on the business day next pring the day on
WET\1SS966S.8 -6-
which notice is given) of the Series C Pi'ed Stck and Ses B Prfer Stk to be reeeed at 1h
addr la shown on ihe rerds oftbe Coor fo suh bold, notfYg su holde of the Redemption to
be effed, specifyng the nwnber of shars to be redeemed frm such holder, the Redpton Dat, th
Reemon Prce the maer in which payment shal be obtaed, an calig upo such holde to sude to
ths Corpon, in the maner and at the plac designated, sucb bolder's ceficate or certficates
repreenting the shars to be redee (the "Hol Not. Exce as provid in Secton 3(e), eah hold
of (i) Seies C Prefe Stok an (ij) Sees B Prferr Stok to be reeeed shll surder to th
Cooraon on or af the Rempton Dat the cecate or certficates reprntg such shar in the
maer and at the place desig in the Holder Notce, and therepon the Redempton Price of such sh
shall be payale to the orer of the peon or en whos nae apea on such certfica or certfica as
the owner thereof in the ma specifed in Section 3( c), and eah suder certcate shal be
cacelled. In the event less than all the shar resete by any such ceca ar reme a newceca shl be issued reg th uneeed shar.
(e) ßi. From and afr the Redemption Date, unless ther shall have be a
default in payment of the Redemption Price, all rights of the holders of shar of Series C Prferred Stock
and Series B Prerred Stock designat for Reemption in the Holder Notice as holders of Seres C
Preferred Stk and Series B Prferd Stock (excet the right to reeive the Reempton Prce, upon
surnder of thir ceca or cecates) shl cese with reec to such shars, and such shars shal not
1ber be trsf on th boks of this Corraon or be de to be ou for an pur
whatsver. If th fuds of this Corpraon legly avalable for Redempton of sha of Sers C Prferd
Stock and Series B Preferr Stok on the Redemption Date are insufcient to redeem the tot number of
shars of Series C Prferrd Stok and Series B Prferr Stok to be redeemed on such cltet (i) those
funds that ar legaly avaiable shl be us to redeem the maxmum possible numbe of such shar rably
amon the holder of su shas to be redeeed in prporton to the amounts th the Seres C Prfe
Stock and Series 8 Preferr Stock would oter have been entied to reive if al amunts payale on or
with re to such Series C Prferre Stock and Series B Prferr Sto in such Reption had be
paid in fu and (ii) the Coon wil ma best effrt to pursue a caita rasin tron to allow it to
comple such Redemption. If the Cororaion is unable to rase enough capita to complet the
Redempton the Corporaon may complete such Redemption in thrt-six equa monthly installments,
includin intest at 13% per anum. The shar of Series C Prefer Stock and Sees B Prfer Stock
not reeeed shal reman outstading and be entied to all the rights an prfernces provided hein.
4. Converion. The holders of the Prfer Stock shall have conversion rights as
follows (the "Conversion Right'):
(a) ßit to Conver. Eah shar of Prferr Stok shl be convertblet at the
option of the holder therf, at any time afer the date of issuace of such shae, at the offce of this
Corpration or any trr agent for such stc~ into such number of fuJIy paid and nonassessale sha
of COllOD stck as is detined by dividing the applicable Original Issue Prce for such seres by the
applicable Converion Price for such series (the conversion rate for a series of Prfer Stock into
Common Sto is referr to herin as the "Conve1'n Rate" for such senes), detrmined as herea:
. provided, in effect on the date the certficate is surndere for conversion. The initi Conversion Prce
pe sh for each series of Prferr Stok shal be the Orginal Issue Price applicable to such series;
provided, however, that the Conversion Prce for the Preferr Stock shall be subject to adjustment as set
fort in subsection 4( d).
(b) Automatic Conversion. Each shar of Preferred Stock shall automaticay be
convert into shares of Common Stok at the Conversion Ra at the time in effec for such seres of
Preferr Stok immediately upn the this Corporion's sale of its Common Stock in a firm commitment
undeiwtten public offerig puruant to a registon stteent on Form S~l or Form SB-2 under the
WET\1SS966S.8 -7-
Securities Act of i 933, as amended, that results in aggate grss pros to the Corpration, net of
underiting expenses, in exces of $50,000,000 (a "Qiifd Puli OHerilf at an offering prce per
shar equal to the times (3x) the Onginal Issue Prce for the Senes C Prefered. Additionally, each
shar of Preferd Stock shall autmaticay be convered ino shars of Common Stok at the respeve
Conversion Ra at the tie in efct for such series of Prerd Stock hnmediately upon the date
specified by wrttn consent or agent of the holders pf at lea 66% of the then outding shares of
Series B Prferr Stock and Series C Prefered Stock (voting together as a single class and not as a
separ sees. and on an as-cnver bais).
(0) Mechaics QfCQnverion.
(i) Before any holder of Prered Stok shl be entitled to voluntaly convert the
sae into shars of Comm.on Stock, such holder shl surder the certficat or ceificats threfor,
duly endors (or shal exeute and deliver such reasonable and approprite documentation, including an
afdavit of loss, if such certficate or certficates, ar lost, stolen or destoyed) at the offce of the
Corpraon or of any trsfer agent for the Preferr Stock, and shall give 'W notice to the
Corpration at such offce that such holder elects to conver the sae and shall st 1herein the nae or
naes in whch such holder wishes the certficae for shares of Common Stok to be issued. The
Corporaton shalL, as so as prctcable ther, isue and deliver at suh offce to such holder of
Prferrd Stock, or to such holder's nomiee or nominees, a ceca or cerficates for the nwnber of
shas of Comon Stock to which such holder shall be entitled as aford. Such converion shalt be
deemed to have been made immediately pror to the close of business on the date of such surder of the
shars of Preferrd Stock to be conver, an the pern or persons entitled to recive the shars of
Common Stok issuable upon such converion shall be trte for all purp as the record holder or
holder of such shaes of Common Stock on such date. If the conversion is in connecton with an
underwtten offering of securties regist pursuat to the Securities Act of 1933, as amended, the
conversion may, at the option of any holder tenderig Prferrd Stock for converion, be condioned
upon the closing with the underwters of the sale of seurties pursua to such offerig, in which event
the perns entied to recive the Common Stock upon converion of the Prferrd Stock shall not be
deemed to have convert such Preferr Stock until immediately prior to the closing of such sale of
seurties.
(ii) Notwthsting the foregoing, if any sh of Prferred Stok ar convertg
into shars of Common Stok pursuan to the provisions of Arcle IV, Secton 4(), the converion shall
occur autmatically without any furter action by the holder of Prferd Stok afected thereby and
wheter or not th certcate reprsentig such sha of Prferr Stock ar surdered to the
Corpration or any trsfer agent for the Prferd Stk. The Corpon shall not be obligated to issue
a certficate or certifcates evidencing the shs of Common Stok resulting frm the automac
conversion unless the certficate or cerficas evidening such shars of Prrr Stok ar either
delivere to the Corporation or any trsfer agent for the Prer Stock, or the holder of Preferr Stock
notifies the Corporaon or any trfer agent for the Prferr Stck that suh certficat or cecas
have been lost, stolen or dested and executes an agement renably satisfacry to the Corporation
to indemnif the Corportion frm any loss incurr by it in connection with such ceficate or
certcates. The Corporation shal, as soon as practicable afer such delivery, or such agrent an
indemnficaon in the cae of a lost, stolen or destoyed certficate, issue and deliver to such holder of
Preferr Stock a certficate or cerficas for the number of shas of Commn Stok to which such
holder shall be entitled as aforeaid.
(d) Converson Pnoe Adjysents of Preferred Stock for Cen Dilutive Issuaces.
Splits and Combinations. The Convesion Price of the Preferred Stok shall be subject to adjustent
frm time to time as follows:
WE1SS966S.8 .8-
(i)
(A) If this Corpraon shl issue. on or afer the date upon which a
sh of Prferr Stock wa fit issued (the "Efec Date''), any Additional Stok (as dermed below)
without cosideration or for a consideration pe shar less th the Conversion Price applicable to a seres
of Prferred Stok in effect imediately prior to the issuace of such Additional Stock, the Converion
Price for su series in efec immediately prior to each such issance shall fortwith (excep as otherwse
provided in this clause (i)) be adjusted to a price determined by multiplyig such Conversion Prce by a
fraction: (x) the numertor of which is equal to the number of shar of Common Stock Oustdig (as
defied below) imediatly prior to such issuance plus the numbe of shs of Common Stok which th
agggat consideraon reived by this Corpration for the tota number of Additional Stock so issed
would purhase at the Conversion Price in ef immedately pror to such issan; and (y) the
denominr of which is equal to the number of shars of Common Stock Outsding (as defined below)
prior to such issuace plus the number of Additional Stock so issued. For purpses of ths Setion
4(dXi)(A). the tenn "Commn Stck Outg" shall mea and include the followig: (1) outtadig
Common Stock, (2) Common Sto issuble upo conversion of outding Prfer Stok, (3)
Common Stock issuble upon exercise of outstadi stk options and (4) Common Stok issuale upon
exercise (and, in the cas of warnts to pur Prfered Stok, conversion) of outding warts.
Shas describ in (1) thugh (4) above shall be included whether vest or unveste wheter
contingent or non-contingent, and wheter exercisable or not yet exercisale.
(B) No adjustent of the Conversion Prce for the Prferrd Stock
shal be mae in an amount less than one cent per shar, provided tht any adjustents th are not
require to be mae by reaon of this sentence shal be caed forward and shall be either ta into
account in any subsuent adjustent mae prior to th (3) yea frm the dat of the event giving rise
to the adjusent being caed foiw. or shall be made at the end of thee (3) yeas frm the date oftbe
even giving rise to the a4justment being eaied forw. Except to the limite extnt provided for in
subsetions (EX3) and (EX4). no adjustent of such Converion Price puruant to ths subsection 4( dXi)
shall have the effect of incring the Converion Prce above the Converion Prce in effec imediately
prior to suoh adjustent.
(C) In the case of the issuance of Common Stk for cash. the
consideration shall be deed to be the amount of cah pad therfor before deuctig any reasonable
discounts. commissions or other expenss allowed. paid or incWT by this Cooration for any
undetig or otherse in connection with the issuance and sale therf.
(0) In the ca of the issuce of the Common Stock for a
consideration in whole or in par other than cash, th considertion other than cash shall be deemed to be
the fair market value therof as detrmined by the Bo of Directors (incluing the approva of the Seres
B Dirctor and the Seres C Director) irspecve of any accounting trtment.
(E) In the cas of the issuace of optons to purhase or rights to
subscribe for Common stok, securites by their tens converble into or exchangeable for Common
Stock or options to purha or rights to subscm'b for such coverble or exchgele seurities the
foUowing prvisions shall apply for purses of detining the number of shs of Addition Stock
issued and the consideraon paid therefore:
(1) The aggrgate maximum number of shars of Common
Stock deliverale upon exercise (assuming the satisfation of any conditions to exeroisabilty. including
without limitation. the passge of time, but without tang into account potti antidiliition adjustents)
of such opons to puhas or rights to subscribe for Common Stock shall be deemed to have bee issued
WET\i.sS96S.8 .9-
at the time such options or rights wer issued and for a consideratn equal to the considertion
(deterined in the maer provided in subseions 4(d)(i)(C) an (d)(i)())t if any, received by this
Corporon upon the issuance of such optons or rights plus the minimum exercise price provided in such
options or rights (witout tag into account potenial antidiluton adjustments) for the Common Stock
covere therby.
(2) The aggae maimum numbe of shar of Common
Stock deliverable upon coversion of, or in exchage (assuing the sasfon of any conditions to
converbilty or exchageaiHty, including, without limitatont the pasage of tiet but without taing
into accunt potential anti dilution adjustents) for, any such converible or exchangeable securties or
upon the exerse of options to purchase or nghts to subsribe for such converble or exchagele
securties an subseuent conversion or exchage thereof shall be deemed to have been issued at th tie
such securties wer issued or such optons or rights were issued and for a consideration equa to the
consideraon, if any t reved by this Corporation for any such securties and related optons or rights
(excluding any cas recived on account of acrued intet or ac dividends), plus the minimum
additional consideration, if any, to be reived by this Corporation (without tag into account pontial
antidilution adjustents) upn the conversion or exchange of such seurties or the exerise of an relat
options or nghts (the consideration in eah cas to be deteined in the maner provided in subsections
4(d)(i)(C) and (dXi)()).
(3) In the event of any chane in the number of shares of
Common Stock deliverable or in the consideation payable to ths Corporaon upon exrcise of such
options or rights or upon conversion of or in exchage for such converible or exchageable securites, the
Conversion Pnce of the Prfer Stock, to the extnt in any way afectd by or computed using such
options, rights or secunties, shall be recmputd to reflect such change, but no fuer adjustment shal be
mae for the actu issuace of Common Stock or any payment of suh consideaton upon the exercise of
an such optons or rights or the converion or exchange of such securities.
(4) Upon the expiraton of any such optons or rights the
terminaton of any such rights to conver or exchage or the expiron of any options or rits relate to
such converible or exchangeble securties, the Conversion Prce of the Prfed Sto, to the extent in
any way affed by or computed using such options, nglts or seurties or options 01 righ rela to
such secures, shall be reomputed to reflect the issuace of only the number of sh of Common
Stock (and convertble or exchangeale seurties that remain in effect) actually issued upo the exerise
of such options or rights upon the conversion or exchange of such securities or upon the exeris of the
options or rights relate to such seurties.
(5) The number of shars of Additional Stok deemed
issued and the consideron deemed paid thereor pW'uant to subsections 4(dXi)(EXl) and (2) shall be
appropriately adjusted to reflec any change, termintion or expiraton of th tye descn'bd in eiter
subsection 4(d)(iXE)(3) or (4).
(li) "Additnti Sto/(' shall mean any shs of Common Stock
issue (or deemed to have bee issued puruat to subsecton 4(d)(i)(E)) by ths Corpration
on or af thè Effective Date other th:
(A) shares of Prfe Stock or Common Stock issued puruan to a
stock split, reers stck split, reincorpion, relassifeaton, or combintion of the Corporation's
capital sleek, including share issued prior to the date hereof in conection with the Corporationts
reincoraton in the State of Delawar an the prious relasification of the Corporatn's Series B
Prferred Stock;
WESTISS96S.8 ~10-
(B) shas of Common Stok issuale or issued to dirrs, offcer,
employees, and consultats of the Corpration dirctly or puruat to stock or stck option plas,
agents or other argements approved by the Board of Ditors of the Corporation (including the
Series B Dirr and the Series C Dirr);
(C) shars of capit stck, or options or wamts to purchae caita
stck, issued to fmancial insttutions or lessors in connecion with commerial creit argements,
equipment ficings, or similar trsactions, which issuces ar prily for other than equity
financing purposes, and provided th such issuace of options or wats is approved by the Boar of
Diretors, including th Seres B Dirtor and Series C Director;
(D) shs of Common Stock or Prerd Stock issuable upn
exercise of options and warts outding as of the date of filing of this Restted Certficate; .
(E) shars of caita stck or waants or options to purha capita
stock issued in connection with bona fide acuisitions, mergrs, or similar trsaons, the term of
which are apprved by the Boar of Dirers including the Series B Dirctr and Seres C Dirr;
(F shars of Series C Prferr Stok issued or issuable pursuat to
the that ce Series C Preferred Stock Purchae Agrment da on or arund October 30, 2008, as the
sae may be amended frm time to tie pursuat to its tes;
(0) sha of Common Stock issued or issule upon converion of
the Coraon's Prfer Stock; and
(H) shs of Common Stok issued or issuable in a Qufied Public
Ofering.
The "Effec P1' of Addtiona Stok shall mea the quotient detennined by dividing the
tota number of sha of Additional Stck issued or sold, or deemed to have be is or sold by the
Coon. into the agga considertion recived, or deeed to have ben reived by the Con fo
such isse for such Aditon Stk
(ii) Adjustent For Stock Splits And Comhinatons. If the Corporaton
shall at any tim or frm tie to tie afer the Effective Dat et: a subion of th outdi~~on ~~ ~~ a ~~~ ~~w~ m~ ~med ~~ b ~vnon ~ce fo ~
applica ses of Prfe Stoc in efec imediatly before th subdivision shl be proportonatly
decre. Convesely, lfthe Corportion shal at any time or fr time to time aft the Effectve Date
combine the outdig shars of Comon Stock in a smer numbe of shas wjdiout a
cordig cobinaon of the Pr Stock. the Converion Prce for the applicable sees of
Prfe Stock in effec imediately before the combinaton sh be proportonately incr. Any
adjustent uner this Seon 4(ii) sh becoine efve at the close of buess on th dat th suision or
combinaton bemes efve.
(iv) Adiusent For Common Stock Dividends And Distibutons. If the
Corpration at any time or frm time to tie afer the Effectve Date makes, or fies a record da for
the deterinaon of holders of Common Stock entitled to reeive, a dividend or other disbuon paable
in additiona sh of Commn Stok, in eah such event the Conversion Price for the aplicable seies
of Prfered Stock that is then in effec shall be decsed as of the time of such issuace or, in theevent such rerd date is fied, as of the clos of bues on su re da by multiplyi th
Converion Price diei in effec by a fraction (i) the numertor of which is the to numbe of sh of
WE1SS966S.8 .11.
Common Stk isue and outnding immediately prir to the tie of such issuance or the clos of
busines on such rerd date, and (ii) the denominatr of which is th tota numbe of sha of Common
Stock issued and oudi imedialy pror to the tie of such isan or me clo of busines on such
record date plus the number of shas of Common Stock issuable in payment of such di or
dis1ributi: proded, hower, th if suh re da is fi and such divided is not fully pad or if suc
dis1buton is not fuly ma on th dat fi therfo, the Converion Price shl be reomputed
accordingly as of the olose of busines on such reor date an ther the Coverion Prce sh be
adjus purt to this Seon 4(iü) to reflec the actul payment, if 'an, of such dividend or
distrbution.
(v) Adjusent For Reclasifcaon. Exange An Substituon. If at any
time or frm time to time aftr the Effectve Date, the Common Stck isle up th cove of th
Prfè Stock is chge in the sae or a dier number of sh of any cla or cla of st
wheter by rei1izof relaifcaon or otherse (other than puruat to a transacon deemed to
be a Liquidation Event pursut to Seon 2(e)(i) or a subdviion or combinon of shar or stk
dividend or a rerga merr, conlidation or sae of asse prvided for elsewher in this Secton
4), in any suoh evt ea holde of Pr Stock sh have 1le right fh to conver such stk into
the ki and amount of st an other sewies and proper reivle up su retaon
claificaon or other chage by holder of the mamum number of shs of Common Stok in whch
such shar of Prfer Stok could have been covert imedately prior to such reiton
relassificaon or chge, aU subjec to fuer acus as provide herin or with re to suh other
seurties or prper by the tes tht:
(e) Reorgaiztions. Merers Qr Conslidaons. If at any ti or frm tie to ti
afer the Effve Dat there is a capita reon of the Common Stock or the merger or
consolidation of the Corporation with or into another corporation or anoter entity or peron (oter thiu
pursuat to a trsacon deemed to be a Liquidation Event purst to Secon 2(eXi) or a reitaizion,
suiviion combinon claifcaon exchage or subson of sh prvided for elser in th
seon 4). as a par of such capit rergizon proviion shal be made so th the holders of the Pr
Stok shal threr be ened to reive upo Coverion of such Prefe Stock the numbe of shars of
stk or other seces or proper of the Cororaon to which a holder of the number of sh of
Common Stok deliverle upon Converson would have bee entied on such capital reorganizaon
subject to adjustment in resp of such stk or secit by the te thereot: In any su ca.
apprpriat adjustment shl be ma in the appliction of the provision of dis Secon 4 with repe to the
rights of the holde of suh Pr Stok af the cait reZlon to th end th me provision of
this
Secon 4 (including a4usten of the Coverion Pr 1hen in eff an the numbe of shas isle upn
Conversio of such Pre Stck) shl be applicale af that even an be as nealy equivalent as
prcale
(t) NQ Impairen. The Corpraon shall not, by
amendment of it Ceficate of
hicorption or thugh any regaizon, recaitizon, trer of aset, cosolidaon merer,
disluton is or sae of seure8 or any oter vo1w acon avoid or seek to avoid the obsrvance or
peormance of any of the tes to be observed or perform heder by th Corporon, but shal at al
ties in god faith as in the caing out of all the provisions of this Secon 4 and in the tag of all
such acion as may be necssa or apprprat in ordr to prtet the Converion Righ of the holder ofPrefer Stk agst impaent. .
(g) No Franal Sha No fronal shar shal be issed upn the Conversion of
any shar or shs of Preferr Stock, and the number of shares of Common Stk to be issued shall be
row"ied to the neast whole sha. Whether or not :fona sh ar issule upo su Converson sh
WEST\1SS966S.8 -12-
be deine on the bais of th to numbe of sh of Prfe Stk the holde is at th tie coerg
into Common St and th numbe of shs of Con Stck issuble upn such ag Conve
(h) Cerfica As To Adjustmnt. Upon the ocnce of eah adjustent or
redjustment of the Conversion Prce of Prerr Stk puruant to ths SectÍon 4, the Corpraon, at its
expense, shall proptly compute such adjusten or rejus in ac with 1fe te hef and
prpa and fìsh to ea holde of such Prei Stk a oefi seg fort such adjuent orrejusen and showi in det the fi upn which such adjusent or rejustent is ba. Th
Corption sh, upn the wrttn re at any tie of any holde ofPrei Stok, fish or cause to be
fuished to such holder a like certficate seg fort: (i) such adjustent and rejusent, (ii) the
Conveion Prce for such Prefmed Stk at the tie in eft, and (iii) the number of sh of Common
Sto and the amomi if any, of oter pro th at di tie would be reived upo th Corsion of a shar
of suh Prfe St.
(i) Notices Qf Rec Da. In the even of any taking by the Coporaon of a
rewar of the holders of any class of securties for the purse of detrming the holders therwho ar
entitled to reive any dividend or oter distibution, any right to subscr'be for, purhase, or oterse
acquire any shes of stock of any class or any other securities or prope, or to receve any other right,
the Corration shall mai to eah holder of Prferd Stock at leas i 0 days' pror writtn notice
specifyg the date on which any such rerd is to be taen for the purse of such dividend, distibuton,
or right, and the amount and charcte of such dividend, dibution, or right. No event desbed herin
shall tae pla sooner than ten (10) days af ths Corporon ha given 1he fi notce provided for herin
provide, however. that subjec to compliance wi th Gener Coron Law suh peods may be
shortned or waved upon th writn cosent of the holders of Prfe Stock that reent at leas 66% of
the votg power of all then outsdig shs of suh Pr Sto (vot togeter as a single cla and
not as se sees, and on an as-enverd to CoDUn Stck bais).
G) Reseration Qf Stock Issuable Upon Conversion. The Corpraion shall at aU
time reerv and kep available out of its authorized but unissued shas of Comon Stock, solely for
the purose of effectg the Conversion of shars of Prferr Stock, such numbe of its sh of
Common Stok as shall fr time to time be suciet to eft th Coverion of all outsg sh of
su Prei Sto and if at an time th number of authorize but unissued shaes of Common Stock
shall not be sufcient to eff the Coversion of al the outsding shar of Prrr Stok, in aditin to
suc ot reedies as shall be availale to the holder of such Prerred Stok, the Corpaton shal tae
such corprate action as may, in the opinion of its counel, be necesai to incre its autori bu
unued shs of Coon Sto to suc number of sh as shal be suffcie for such puse, including,
without limitaon, engaging in be effort to obt the requisite stlde approva of any nec
amendmen to ths Certca of Incoon
(k) Notice. Any notce require by the provision of th Section 4 to be given to the
holders of shars of Prferred Stok shall be deemed given if deposited in the Unite Stas mai, postge
preaid, an addrese to eah holder of rerd at the holder's addr apeag on 1f bo of theCoorn.
S. Voting Rights.
(I) Geeral Votig Rights. The holder of eac shar of Prfed Stok shaU have
the right to one vote for ea sha of Common Stock into which such Prfer Stock could then be
cover, and with repect to such vote, such holder shl have ftl voting rights and power equa to the
voting rights and powers of the holder of Common Stock. and shall be entitled, notsting any
provision herof, to notice of any stockholder' meetig in accordce with the Bylaws of tis
WEST1559665.8 ~13-
Corption,. and excet as provided in subsection 5(b) below with resp to the election of dirrs by
the sepaat class vote of the holde of Common Stok or with respect to other matt reui by law to
be submitt to a clas vote, shal be entitled to vote, togeter with holders of Common Stock, wi
respect to any queston upon which holders of Common Stock have the right to vote. Fraconal votes
shall not, however, be penittd and any frctiona voting rights available on an ~nvert basis (afer
agggatig all shar into which shar of Prfe Stok held by each holder could be convert) shall
be rouned to the nearst whole numbe (with one-half being rounded upward).
(m) Voting for the Eltion of Dir.
(i) As long as any sha of Series B Prferd Stok re outsding,
the holder of such shars of Series B Preferr Stock, voting as a sepa series, shall be entied to
elec one (1) direr of this Corpration at any elecon of dirs (the "Ser B Directr'). The
Series B Direor may be removed frm the Board only by the afirive vote of the holder of a
majority of the Series B Prered Stok votig as a see seres.
(ii) As long as any shars of Series C Prferrd Stck rema outtadig,
the holders of such shas of Series C Prferd Stck, voting as a separ series, shall be entitled to
eject one (1) ditor of this Corporon at any electon of dirto (the "Se C Dlrr'). Th
Series C Dir may be removed fr the Board only by the aftive vote of the holders of a
majority of th Series C Prfered Stock votin as a separ series.
(ii) The holder of outtading Common Stock, voting as a septe class,
shall be entitled to elect two (2) direto of this Corpration at any election of dirctors (the "Coni"
DU'ectøra"). Bach Comon Dirr may be removed frm the Boar only by the afatve vote of
the holder of a majority of the Common Stk voting as a sete clas.
(iv) Th holders of Preferd Stck and Common Stock (votg together as
a single cla and not as separate sees, and ouan ~nvertd basis) shall be entitled to elec th (3)
directors of this Corpration (the "Mllual DiIeci'). Each Mutu Directr may be removed frm
the Boa only by the affrmatve vote of the holders of a majority of the Common Stok and Prefer
Stock, voting as a single cla and not as sepaat series, and on an as-nvert basis.
Notwithstding the provisions of Secton 223(a)(I) and 223(a)(2) of the Genera
Corporaion Law, subjec to any agrment among the stockholders of this Corporon any vacancy,
including newly crted dirorships resultig frm any increas in the autoriz number of directrs or
amendment of this Rested Certficat, and vacancies creatd by remova or reignation of a dictor,
may be filled by a majority of the directo then in offce, though less than a quoruin, or by a sole
remaining diretor, áJd the direors so chose shall hold offce until the next anua elecon and until
their sucssors ar dul elect an sha quaif. unless soone displaced; provide, however, that where
suh vacacy occu among the dirtors elected by the holders of a class or series of stock, the conset of
a majori-In-intest of the holders of shars of such class or series shalt be requir prior to any such
action by the Boar.
6. Prctye Provisions.
(n) The Corpration shall not (by amendment, merger, consolidan or otherse)
without first obting the approval (b vote or writt consent, as provided by law) of the holdes of at
least 66% of the then outsding shars of Series B Prfer Stock and Seres C Prfer Stck (voting
togetr as a single class. not as a separat series and on an as convered bais) tae any of the followig
acon:
WET\IS596S.8 -14-
(i) amend this Cororation's Reste Cerficat or it Bylaws;
(ii) authorize or issue or obligate itslf to isue, any equity seurty
(including any other security convertble into or exercisable for an such equit security) ext for
compensatory issuaces and in lea, borrowig and comparle tranions, in eah such cae,
without fist obtaing the approval of (i) th Sees C Dir and (ii) the Series B Dior;
(ii) redem, purhas or otere acquire (or pay into or set aside for a
sinking fud for such purse) any shar or shares of Prferd Stock or Common Stok; provide,
however, that this retrcton shal not apply to the repurchas of shs at cost of Common Stock from
employee, offce directors, consultats or other persons peonning serices for ths Corporaon or
any subsidiar purant to agements under which ths Corption has the option to repurhase such
shars upon the occurce of cert events, such as the termination of employment or service, or
puruat to a right offirst refusal, with the apprval of the Senes C Direc and the Series B Dirctor;
(iv) declar or pay a dividend to or distribute any propert to holders of
Common Stock or holders of Seres A Prferd Stock, ex as required in connection with a
Liquidation Event;
(v) autorize the liquidation, disslution, recapitaon, rergiztion
or filing for bakrptcy of this Corporation;
(vi) prior to Octbe 31, 2011, conumate a Liquidation Event, unles the
per shar proee disbutable to th holders of Seres C Prferre Stok. free of any retrcton or
contingencies (including. but not limite to, any prs subject to an "ea out or similar
contingency, or subject to escrow or similar risk of forfitu), is equa to or exceds th times Ox)
the Origi Issuace Price per shar of Seres C Prrr Stok (as adjuste for any stck splits, stock
dividends combintions, subdivisions, repitaizons or the like with respct to the Series C
Preferd Stok);
(vii) materially change the nat of the Corration's business;
(vii) chage the auor number of dirtors of this Corpration or
delega substntial boar authority to committ;
(ix) authori the issuace of any securties by a subsidiar of the
Corpration to any other person oter th the Corporaon;
(x) authorize the incrase of the number of shars issuable under an stok
option or purha pla without first obtinmg the approval of (i) the Seres C Di and (ii) the Sees
B Dirctor;
(xi) tr with an afliat or stkholder other than in the ordi
course of business; or
(xii) author or issue debt intrents that obligate the Corporation to
repay more than $5,000,000 of principa.
(0) The Corpration shall not (by amendment, merg, consoUdaton or oterwise)
without first obtainig th approval (by vote or wnttn consent, as provided by law) of the holder of 65%
of the th ouding shas of Series B Prfeir Stok (i) alte or change the rights, prefernces or
WEST\1559665.8 -15-
privileges of the shars of the Series B Prferd Stock in a maner tht would materially and adversly
afect such shas in a manner different than the Seres C Preferd Stock or (ii) authori additiona
shar of Series B Preferr Stock.
(P) The Corporation shall not (by amendment, merger, consolidaon or oter)
without firs obtg the approval (b vote or written consent, as prvided by law) of the holders of a
majority of the th outng sh of Sees C Prfe Stk (i) alter or change the rights, preferences
or privileges of the shar of the Seres C Prfer Stok in a manner th would materially and adversely
afect such shars in a maner differt than the Seies B Preferr Stok or (ii) autori additonal
shar of Senes C Prferd Stok.
7. Stas of Conver Stock. In the event any shars of Preferrd Stk shal be
conver pursuant to Secon 4 heref, the shars so conver shal be cacelled and shal not be
issuable by this Corporaion The Rested Certificae of this Corpration shl be appropriately amende
to effect th corrndig reduction in ths Corpon's authori caita stck.
C. Comm Stock. The rights, preferces, privileges and restctions grte to
and impoed on the Common Stok ar as set fort below in this Arcle IV(C).
i. Dividend Rights. Subjec to the prior rights of holder of all clas of stk at
the time outsding having prior rights as to dividends the holders of the Common Stock shall be
entitled to reive, when, as and if declar by the Board of Direcors, out of any assets of this
Corporation legaly available therefor, any dividends as may be declard from tie to time by the Bo
of Dirrs.
2. Liquidaon Rights. Upon the liquidation, dissoluton or winding up of th
Corpration the as of this Corortion shalJ be distbuted as provided in Secon 2 of Aricle IV(B)
herof.
3. Redemption. The Common Stk is not redeemable at the option of the holder.
4. Voting Rights. The holder of eah shar of Common Stock shal have th right
to one vote for each such shar, and shall be entitled to notice of any stckholder' meeing in accrdce
with th Bylaws of ths Corption, and sh be entitled to vote upon such ma and in suh maner
as may be provided by law.
ARnCLEV
In fuerace and not in limitation of the powers conferrd by the laws of the St of Delawa:
A. The Boad of Directors of this Corporation is expresly authorid to adpt,
amen or re th Bylaws of th Corpon.
B. Elecons of diretors ned not be by wrtt ballot unless the Bylaw of th
Corpraon sb so prvide.
C. Th boks of1fe Cooraon may be ke at suc plac witb or wiout th Sta of
Delawar as the Bylaws of th Cooraon may provide or as may be designate frm ti 10 tie by the
Bo of Di of the Cooron.
WEsrn LS96S.8 -16-
ARTICLE VI
Whenever a compromise or arangement is propoed betee Corration and its creditors or any
class of them and/or beteen the Corpration and it stckholders or any clas of tbemt any cour of
equitable junsdiction within the State of Delawar may, on the application in a summai way of the
Corration or of any creditor or stockholder thereof or on the aplicaon of any reeiver or reivers
appointe for the Corpraon unde 1be prvision of §291 of Tite 8 of the Gener Coration Law or on
the applicaon of trsts in disolution or of any receiver or receivers appointe for this Cosporaon
uner §279 ofTite 8 of th Generl Coon La or a mee of the creditors or clas of critors
and/or of the stckholders or clas of stkhlder of the Corpraon, as th cae may bet to be suoned
in such maer as the sad cour dir. If a majority in number repreg thrfours in value of
creditors or clas of crditors, anor of the stckholder or clas of stkhold of th Coron, as the
case may be, ag to any comprmis or arra an to any reon of th Corp as a
consenc of such compromise or argeent, the said compromise or argement and the sad
rergzaon shal~ if sactoned by the cour to which the said aplicon ha be mad, be binding on all
the creits or class of creitors, and/or on all the stockholders or class of stkholde of the Coraon
as the cae may be, and also on the Coon.
ARTICLVl
A dir of the Corpraon shall not be liable to the Corpraon or its stockholder for
moneta daages for breach of fiduciar dut as a direr, except to me ex th excuon fr
liit is not pe wide th Ge Coon Law as now in eff or as it may heraf be amende.
No amendmt or re of this Arcle VI sha apply to or have an effec on th liabilty or aleged liabilty
of any direc of th Coaton for or wi re to any ac or omissions of suoh dior oc pror
to such amdmert or re.
ARl1CLVD
The Corpration sh to die maxum exnt pemitt frm tie to tie under tho law of the
State of Delawa, indemnify an upon reuest shall advance expses to any peson who is or was a
pa or is thned to be made a pa to any thred, pedi or complet acon, sut, prceedin or
clai, wher civi crin adhiisve or invesigative, by reon of the feet that such pen is or was
or has agr to be a dirtor or offce of the Corpration or while a diror or offce is or wa serving at
the reuest of the Corporation as a director, offcer, parer, member, truste, employee or agent of any
corpraon, parersp, joint ventu, trst or other enterpriset including. without limitaon seice wi
respe to employee benfi plans, agast expenss (including. wiout limitaon, attrney's fees and
expeses)t judgments. fines. penalties and amounts paid in settlement incur in connection with the
invesgation, prartion to defnd or defens of such action sut, pring or clai provide howeer,
th the forgoing sh no re di Coron to indemnif or advance exse to an pe in
coon wi any acon su prg, claim or counterclaim initatd by or on behaf of such pen.
Such indemnifcation and advanceent of expenss shal not be exclusive of other indemnficaton right
arsing as a mat of Jaw, 1Uder any Bylaw, agrent. vot of dirers or stckholder or otherse, both as
to acon iii such pen's offcial capacity and as to acon in anoter caity while holding su offce, and
shall inur to th befi of the heir and lega reprtaves of such pe. Any person seeking
indemnification under this Aricle VII shall be demed to have met the st of coduct reuir for
such indemnifcaon unless the contrar shal be estblied. Any repeal or modifcaon of the foregoing
pro.visions of ths Arcle VI shall not adverely af any right or proteon of a dir or offce of the
Con with reec to any acts or omissons of such di or offcer ocg pror to such reeal or
modficatin.
WEISS96S.8 -17.
The Coraon shl have the power to puha and maita at its exen insance on beha
of any peson who is or was a dircto, offcer, employee or agent of the Corporation, or is or was servg
at the requet of the Corraon as a dir, offcer, employ or agt of another corporon,
paership, join venture, tn or other entise, agst an exse liabilit or loss asrt ag su
person and incm by such persn in an su cait, or arin out of such pe's st as sii wheth
or not th Coon would have th powe to indemn suh, persn agst such expse liabil or loss
wder the Gel Corraon Law or th tes of the Reta Cer.
ARTICL IX
To the maxmum exnt peittd from time to time under the law of the Sta of Delawar, the
Corpration renounces an interet or expeccy of the Corpration in, or in being offered an
opportity to parcipae in business opportnities tht ar frm time to tie presente to its offcers
direto or stockholders or the afliat of the forgoing, oter th those offce, dirctrs, stockholders
or afliate who ar employees of the Coiporon. No amendmen or re of1hs Arcle IX shal aply to
or have any effec on the liait or allege liabilty of any such offcer, dir, stockholder or afli for
or with reect to any business opportities of which suh ofcer, dirr, stockhlder or afliat
becoes awa prior to such amenent or re.
ARTICL X
In acrdan with Secon 203(b)(1) of the Genera Corpration Law relating to the application of
Section 203 therf, the Cortion shal not be governed by Secon 203 of the Gera Coon La.
ARTICLE XI
To the maxum exnt penitt frm time to tie under the law of the State of Delawar, the
Corporation reounce any intere or expectcy of the Cororaon in or in bein off an
opportnity to parcipa in. business oppoities that ar frm time to time preted to its offce)
direcrs or stockholders or the afliates oftha foregoing. other th thos off. dirors stkholders
or afliaes who ar employees of the Corporation. No amendmen or re oftl Arcle XI shl apply to
or hae an efec on the liailit or alleged liabilty of any such offcer) direto, stkholder or afliat for
or wi rect to any business opportnities of whch such offce, dirctr, stkholde or aflia
becmes awa prior to such amendment or reea
ARTICLXD
To the extnt th ths Corpration is subject to Secon 2115 of the Californa Geeral
Corporation Law, in connection with reurbas by this Corpration of its Common Stk frm
employees, offcers, dirers, advisor, consults or other person perorming service for this
Corpoiaon or any subsidi puruant to agreements under which this Corpration has the option to
repurhase such shas at cost upn the occurence of cert events, such as the termination of
employment Setions 502 and 503 of the California Corrations Code sha not apply in al or in pa
with respect to such reurchaes.
ARTICLEXD
The Corporation reserves the right to amend or repel any prvision contaned in this Restted
Certficat, in the maer now or herr prescribed by stte, an all nghts co up a stolder ar
gr sujec to 1l reon
WE J 55965.8 -18-
'" '" '"
TI: The foregoing amendment and retatement was approved by the holders of the
requisite number of shars of said Cooraon in a.rdance with Secon 228 of the Geerl Cororaon
Law.
:FURTH That said Reed Ceficate, which restte and intgrtes and furter
amends the provisions of this Corpraion's Cerificate of Incolporation, has been duly adopted in
accordance with Sectons 242 and 24S of the Geer Corpraon Law.
WEST\ISS9665.8 -19.
IN WI1S WHEREF, the undergned has case this Amende and Res Cefica of
Incorpraon to be execut by Andr Simone, it Chief Financia Offcer. this 31st day of Ocbe,
2008.
IntelePee. Inc.
IS! Andr Simone
Andr Simone. Chief Financial Ofce
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(i) As lo as a is of Se C Pi St reQUIMi 1h ho of su sh of Sc C Pi St vo lI a seBl se.tb be ai to el on (1) di of1b Cooo at I' olGO of di (1
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at vo or wiit co ofb ho of a..od ofth Seres C p:t Stø
vo-. se se.
(iii) Th bo of ouauliog Cæ Stck wt1S a scatd8l Ib be co to ci tw (2 df of1l Co at II eJ of di
(tl "C ~ Ba OmCl Di ma be ~ A1 th Bo 0I byab afw vo orWJ co of1h bo of. iæòn oftl Comon 8I "oIS a øe cl .
-1\-..1
(iv) Tb holde of Pi St _ Co Sto (~tÐ aa a sJ cl aa no il øe se IU Qß aa øa be) sh beeu to el th (3).c oftb Cc (th "M1I~ Ba Mø
)) .m be J. Jt 1b Bo 0D by th afim vo or wr CO of th
bo of a miod ofth Co St ad Pr St 90t 8, a si cl im
_. øe* se md OR m as'lei ba
Not th pioi of Se 22&)1) aa 22&)) of1h Ge
Cø La. stea to II... au tb 8l ot th Co an... ia De &2 èf l' 1k ai ÌD ÌD di ~
II of c1 or ar of th J. Ce-. mi.. Cl by reva
ti iwor of. di. ID be fi by a mi oflh.. 'b in of di le1I . ql or by a so ima di, an di ct ao cb Ih ho o& ui
tJ ae II ol an tD ib su ar du e1eø II sh qu, UDeaIO di pr ~ th wh 8l.. oe amth cU cJby 1f ho of a cl or se of st th co of a msii of1b Ji oføb of IU cla or sees ab he. reuire prn to li 8u ao by th Bo.
(3l Pag Folow)
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IN WINES WHEREF, JntelePee, me. ha caus ths Certca of Coron 10
the Am and Restate Ceficae of Inorpraion to be signed by its duly autonzed otlcer
th 3ni day of Novembe, 2008.
J~Andr~
Chif Fiicial Offcer
,
'D'ET\1 5&51$8. 1
Ðefaware PAGE 1
IJ :Frst State
I, JEFFY W. BULL, SE'CRTARY OF STATE OF THE STATE OF
DELA, DO HEBY CERTIFY THE ATTAC is A TRUE AN CORRCT
COPY OF THE' CERTIFICAT, OF AM OF "INTBEBR, INC.",
FILED IN THIS OFFICE ON THE FOrJTEH DAY OF APRIL, A.D. 2009,
AT 5:15 O'CL P.M.
A FILED COPY OF THIS CERTIFICAT, HA BEEN FORWARD TO 2'
NEW CATLE COr: RECORDER OF DEDS.
4231218 S100090362614 DATE: 04-14-09
rou _y ve.t.r tl. c:riøate oi.ineat corp.. deali.. gov/avtve.. øliti
CERTIFCATE OF AMME
TOTB
AMNDED AN RESTATE CEmICATE OFlNCORPORATlON
Sl:te or .D-.Beta oL St1:.Dvion of COt:DaVB 05:19 ør 04/14/2009
11 05: 15 PI 04/14/2009
SR 090362614 - 42.311S I7
OF
INLEEE INC.
InlePe, Inc., a co org an exg under th las of tho Sta of Deawa (th
"Corpraopj, her cefies as follows:
1. The rus paph of Secon A of Arcle IV of th Cooraon's Amended an
kestte Ceca of InpoOD (th "Certite"' prent reads as follows
"Aion of Stk. This CoporaOD is auriz to isse tw clse of stock to be
desgnte, repectvely, comon sto aad prfe st. The tol nube of sha th th
Cor is auiz to ise is 80,000,00 sh of Common Stok, par value $0.0001 pe
shar (the "Co St an 43,760,592 sb of Prfe St pa valc $0.0001 pCI'shar (th "Prered St? The Prer Stoc shl be divd int th seiies. The firsseres of Preird Stk shl const of 1,280,210 sh and shl be degn "&r Â
PNtl Stk," Th sed seies of Prere Sto sb cònsist of 24,730,382 shs and
sha be .dgnat "Series B Prerre Stoc." 'l th sees of P.fe St shl consistof i 7,750,000 sh and shl be deignte "So C ~en St'.
and such fi pagrph of Section A of Arcle IV is hereby iide an red in it entire to re
as follows:
"Auton of' Sto.. Th Coipon is auorize to isse two cla of stock to be
designd, respively, common stk an prre stock. Th tol number of shar that ths
Coron is au1olize to isse is 80,000,000 shs of Comon Sto par vale $0.0001 pel'
shar (the "Commn $t and 44,760.592 sh of Prer Stck, pa va $0.0001 pe
sh (the "Pr/erd Stoclf. The Prefer Stok shall be dided into th se The fi
sees of Prfer St shaD c:ist of 1,280,210 shar and shl be deigte "Seri A
Prerre Stk.," The secnd aeiies of PIefon ed Stoc sb cosist of 24,730,382 shs and
sha be deign "Se B Prer Stoc." The thrd seies of Prferre Stok sh cost
of 18,750,000 sha and shall be deign "Se1e C Preferd St..
2. The fogoing Cefi of Ameren to the Cefica ba been duly approve by th
Boar of th Dire of th COrpiat in accan wi th prvision of Seon 141 and 242 of
th Oeneial Corporation Law otDelawar.
3. Th forgong Ceitica of Amemet to the Cercate has be du approved by the
Corprati's stocolder in acance with Seons 228 and 242 of the Gener Coraon Law of
Delawar an the Cerca..
WE1677110 i3554-01
4. The foreing ceti of Amendi to th Corpmton's Ceca shal be
ef on and as oftbe da of filing of th Ceficao of Amendment with the Secre ofSt oftb
State ofDeJawat.
Reainer Of Page Intentionti Le Bla
WEl'J677J0 .J
35S453-oOi
....
IN WIESS WHF, th Cercat of Amenent to th Amened and Re
Cerca ofJnrpon bas be execute by th CbieFincial Ofcer oftJe Cotion 1iis 14th
day of April, 209.
INL'ER INC.
By: Andr Simon
Anre SioDe
Chef Fi.aDdal Offcer
WB167n70.J
3S54S300i
EXHIBITB
Authority to Transact Business as a Foreign Corporation
Ai73184381.i i
State of Idaho
I I
,,
CERTIFICATE OF AUTHORITY
OF
INTELEPEER, INC.
i
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File Number C 183995
I, BEN YSURSA, Secretary of State of the State of Idaho, hereby certify that an
Application for Certificate of Authority, duly executed pursuant to the provisions of the
Idaho Business Corporation Act, has been received in this office and is found to
conform to law.
\
ACCORDINGLY and by virtue of the authority vested in me by law, I issue this
Certificate of Authority to transact business in this State and attach hereto a duplicate of
the application for such certificate.
Dated: July 30, 2009
\
f~~
SECRETARY OF STATE
By
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.. ,
FILED EFF.ECTIVE
202
. APPLICATION FOR CERTIFICATE 09 JUl30 PH i:OIOF AUTHORITY (For Profit)
. . 1'"_. on Back of Appllcon)SECRETARY OF STATE
The undersigned Corption applie for a Certifte of Authority and states as folo: STATE OF IDAO
1.Th name of the coor is:
\nte\ePee, 'nco
2.The name which It shall use in Idaho is:
3.It is incorped under the laws of:Delaware
4.Its date of incotion is:10/0512006
5. The addres of it principal office is:
2855 Campus Drive, Suite 200 San Mateo, CA 9403
6.The addres to which corendenc should be addrese. if difrent fro item 5, is:
1100 Dexter Avenue Nort Seatt, WA 98109
7. The stre adre of its regisere offe In Idaho Is:,1401 Shoreline Dr., Suit 2 Bois, 10 83702
and It reister agent In Idaho at tht addres is:Corporation Serv Company
8. Th names and respecive business addresses of it direcors and offrs are:
Na Title Business Address
See Ated
11M !O~Cusr Ac . :
Dated:(fUl pi -i
'i Seiy of St use onl\.-
Signare:
III
Type Name: Todd Smith
capac VP I Controller
IDAHO SECRETARY OF STATE(fhe a/r muat be . dJet or an of of th COIi.J 07/30/2009 05:0
CK: 13288 CT: 228522 BH: 11889
W6For,"1 , 188.B8 = 10.88 AUH PRO .
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IntelePeer, Inc.
Offcers:
Name Addre Tite
Phvlcal Add,...Clt Stte ZI
Frank Fawzi 2855 Campus Drive. Suite 200 San Mateo CA 9403 President I CEO
HaycarHaba 2855 Campus Drive. Suite 200 San Mateo CA 9403 Secrtary I Founder
Phillip Andre Simone 2855 Campus Dri. Suite 200 San Mateo CA 9403 Treasurer I CFO
ToddSmlth 2855 Campus Dri. Suite 200 San Mateo CA 9403 VP I Controller
Board of Direcor:
.1
ì.1
Name Addre..TlI Phalc:11 Add..a Clt Sta Zln
FrankFawz 2855 Campus Drive. Suit 200 San Mate CA 94403 Chairan
HaycarHaba 2855 Campus Driv, Suit 200 San Mateo CA 94403 Direor
Thomas W. Knudsen Sundkrogsgde 7, P.O. Box 2672, DK-21oo Copenhagen Denmark .Direr
VIlllam J. Harding 1001 Bayhil Dr. SUite 300 San Bruno CA 9466 Director
)
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Ðefaware PAGE i
tJ !frst State
I, JBFFY ". BULL, SECiuTARY OF STA2' OF TRB S'A2'. OF
DB.t, DO REUBY CERTIFY "IN'BLBBBR, INC." is DULY
INCOIfOR'lD UN 2'8 LAWS OF THE S2'ATB OF DELAAR AN is IN
GOD STANING AND BA A LBGA CORPO.Rm BKISTBN SO FAR AS 1'
.RCORDS OF THIS OFFICE SHOll, AS OF THE THIR DAY OF JU, A.D.
2009.
AUT4231218 8300
090586213 DATE: 06-03-09
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EXHIBITC
C.F= r~,l,..
2009 DEC i'7 AM 10: 1.4
Financial Statements
(CONFIDENTIAL - Submitted Under Seal)
Please note that the financial information attached as Exhibit C to the original copy of the
application is proprietar and confidential trade secret information and thus is being submitted
under seaL. IntelePeer respectfully requests that the information be accorded confidential
treatment and that it not be made a par of the public record or otherwse be made available for
public disclosure. This information is provided in a sealed envelope attached only to the original
copy of the application.
Ai73184381.12
IG~VERIFICATION P beeÚ)-L /1
I, Todd Smith, being duly sworn, state that I am 'V side 0 orate"c'Á!/c ~.
Controller,_ of IntelePeer, Inc. , the Applicant in the subject proceedi~l~tJ( .th~i'$ am
'iil.-:;'
authorized to make this statement on the Applicant's behalf. 0(SìC~,
As required by Idaho Code §61-406 and by the Commission's Order in the case of In the
Matter of Procedural Requirements for Approval of Certifcates of Public Convenience and
Necessity for Telecommunications Providers Desiring to Provide Local Service in Idaho, Case
No. GNR-T-96-4, Procedural Order No. 26665 (November 7, 1996), the Applicant agrees to
adhere to all state laws and all Commission policies, rules and orders.
I have read the foregoing paragraph, IntelePeer's application and exhibits. and hereby
declare that the same are true and correct to the best of my knowledge, information, or belief.
== -: ~c:-."-By:
Todd Smith
Vice President, Corporate. Controller
Inte1ePeer, Inc.
Sworn and subscribed to me on this -tday of 1?ecbe 2009.
l-i
Signatue of Notary
cL ~-~Seal:
My commission expires:
M~~ ;; i:, 20 i \
r.............. ..BADANA SINGH
. CommIHlon# 1747146 l
I No Puc . Californi lsata CIQla County ..
f.... . u~~':2~~U .1
Name of Notary (printed or typed)
IDAHO