exv3w9

Exhibit 3.9


				STATE OF DELAWARE
				SECRETARY OF STATE
				DIVISION OF CORPORATIONS
				FILED 09:00 AM 05/17/2000
				001253722 – 3230910

CERTIFICATE OF INCORPORATION

FIBERNET HOLDCO, INC.

ARTICLE 1

The name of the corporation (herein called the “Corporation”) is FiberNet Holdco, Inc.

ARTICLE II

The address of the registered office of the Corporation in the State of Delaware is 9 East Loockerman Street, City of Dover, County of Kent 19901. The name of the registered agent of the Corporation at such address is National Registered Agents, Inc.

ARTICLE III

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

ARTICLE IV

(a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is 170,000,000 shares, of which 150,000,000 shall be designated common stock, $.001 par value (“Common Stock”) and 20,000,000 shall be designated preferred stock, $.001 par value (“Preferred Stock”).

(b) The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized, within the limitations and restrictions stated in this Certificate of Incorporation, to determine or alter the rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock and the number of shares constituting any such series and the designation thereof, or any of them.

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ARTICLE V

The name and mailing address of the incorporator is as follows:


Name		Mailing Address
Nyisha Shakur		Mintz Levin Cohn Ferris Glovsky and
		Popeo, P.C.
		666 Third Avenue, 25^th Floor
		New York, New York 10017

ARTICLE VI

The number of directors of the Corporation shall be fixed from time to time in the manner provided in the By-laws of the Corporation (the “By-laws”). The election of directors of the Corporation need not be by ballot unless the By-laws so require.

ARTICLE VII

A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the Delaware General Corporation Law, or (d) for any transaction from which the director derived any improper personal benefit. If the Delaware General Corporation Law is amended after the date of incorporation of the Corporation 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.

Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE VIII

The Corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware.

ARTICLE IX

(a) The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-laws of the Corporation.

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(b) From time to time any of the provisions of this Certificate of Incorporation may be altered, amended or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this paragraph (b).

ARTICLE X

Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the Delaware General Corporation Law or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the Delaware General Corporation Law order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree on any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.

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CERTIFICATE OF DESIGNATION

SERIES H PREFERRED STOCK

FIBERNET HOLDCO, INC.

(a Delaware corporation)

FiberNet Holdco, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST: The name of the corporation (hereinafter the “Corporation”) is FiberNet Holdco, Inc.

SECOND: The Certificate of Designation of the Series H Preferred Stock, $.001 par value, of the Corporation attached hereto as Exhibit A was duly adopted in accordance with Sections 141(f) and 151 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, Michael S. Liss, President of the Corporation, has executed this Certificate of Designation this 28^th day of July, 2000.


	FIBERNET HOLDCO, INC.
	By:	/s/ Michael S. Liss
	Michael S. Liss
	President


				STATE OF DELAWARE
				SECRETARY OF STATE
				DIVISION OF CORPORATIONS
				FILED 03:30 PM 07/28/2000
				001383618 – 3230910

Exhibit A

SERIES H PREFERRED STOCK

1. Authorized Shares.

750,000 shares of Series H Preferred Stock, $.001 par value (“Series H Preferred Stock”) of the Corporation have been authorized by the Corporation for issuance.

2. Dividends.

(a) The holders of Series H Preferred Stock shall be entitled to receive (i) dividends at the rate of 8% per annum (payable semi-annually) of the Base Amount (as adjusted from time to time as provided below) for each 12-month period (or portion thereof) ending December 31, calculated on the basis of a year of 360 days comprised of twelve 30-day months; and (ii) if a dividend (other than a dividend payable in shares of Common Stock) is declared during such semi-annual period on the Common Stock, (or any class thereof), subject to the approval or consent of the holders of the Series H Preferred Stock as provided in Section 4 hereof, an amount per share equal to the aggregate amount of dividends declared with respect to that number of shares of the Common Stock into which the Series H Preferred Stock then outstanding shall then be convertible pursuant to Section 5 hereof, divided by the number of shares of the Series H Preferred Stock then outstanding (together with the rate contained in Section 2(a)(i), the “Dividend Rate”) The “Base Amount” shall initially be $100.00 per share of the Series H Preferred Stock, in respect of which the dividend is being calculated. Such dividends shall be payable at the option of the Corporation in cash or in lieu of such cash payment by issuance of shares of Series H Preferred Stock to holders of Series H Preferred Stock; provided, however, that all accrued but unpaid dividends on the Series H Preferred Stock must be paid, in arrears, in cash, before payment of any cash dividends on any other series or class of capital stock of the Corporation.

(b) Dividends on a share of Series H Preferred Stock shall accrue and be cumulative from and after the Original Issuance Date up to the first to occur of (i) a Liquidation or (ii) the conversion of such share of Series H Preferred Stock into Common Stock, Dividends shall be payable semi-annually when, as and if declared by the Board of Directors of the Corporation, on June 30 and December 31 of each year (each, a “Dividend Reference Date”), commencing on December 31, 2000. In the event that the full amount of a dividend in respect of any share of Series H Preferred Stock is not paid during any such six-month period or portion thereof, the Base Amount shall be increased by the amount of the dividend not paid, effective as of the immediately succeeding July 1 or January 1, as applicable. To the extent not paid on any such Dividend Reference Date, all dividends which have accrued on each share of Series H Preferred Stock outstanding during the six-month period (or other period in the case of the initial Dividend Reference Date) ending upon such Reference Date shall be accumulated and shall remain accumulated dividends with respect to such share of Series H Preferred Stock until paid to the holder thereof. If any Dividend Reference Date occurs on a day other than a Business Day, any dividends otherwise payable on such Dividend Reference Date shall be paid on the next Business Day. Dividends shall be paid to the holders of record of the Series H Preferred Stock as

their names shall appear on the share register of the Corporation on the record date for such dividend.

(c) If the Corporation pays less than the total amount of dividends then accrued on the Total Preferred Stock, such cash payment or issuance of shares of Total Preferred Stock shall be made on a pari passu basis pro rata among the holders of the Total Preferred Stock based upon the aggregate accrued but unpaid dividends on the shares of the Total Preferred Stock held by each such holder. If and when any shares of Total Preferred Stock are issued under this Section 1(c) for payment of accrued dividends, such shares of Total Preferred Stock shall be deemed to be validly issued and outstanding and fully paid and nonassessable. After payment of all dividends owing to the holders of Total Preferred Stock, such holders shall share ratably (on an as if converted basis) in any dividends thereafter paid on the Common Stock.

(d) In the event the Corporation shall fail to pay in full all accrued dividends on all shares of the Total Preferred Stock, then the Corporation shall not thereafter declare or pay or set apart for payment any dividend or other distribution upon, or purchase, redeem, or acquire for consideration, any shares of Common Stock or any other stock ranking on a parity with or junior to the Total Preferred Stock as to dividends.

(e) Notwithstanding anything to the contrary in this Certificate of Designation, in the event any conversion (including into Common Stock), redemption or liquidation occurs as of a date other than a Dividend Reference Date, the holder of Series H Preferred Stock shall be paid a pro rata dividend equal to the dividend payable for that six month period ending upon the Dividend Reference Date multiplied by a fraction, the numerator of which is the number of days that have elapsed since the last payment on a Dividend Reference Date and the denominator of which is the number of days contained between the applicable Dividend Reference Dates.

(f) The amount of any dividends accrued on any share of the Series H Preferred Stock on any Dividend Reference Date shall be deemed to be the amount of any unpaid dividends accumulated thereon to and including such Dividend Reference Date, whether or not earned or declared. The amount of dividends accrued on any share of the Series H Preferred Stock on any date other than a Dividend Reference Date shall be deemed to be the sum of (i) the amount of any unpaid dividends accumulated thereon to and including the last preceding Dividend Reference Date, whether or not earned or declared, and (ii) an amount determined by multiplying (x) the greater of the Dividend Rates by (y) a fraction, the numerator of which shall be the number of days from the last preceding Dividend Reference Date to and including the date on which such calculation is made and the denominator of which shall be the number of days contained between the applicable Dividend Reference Dates.

(g) Immediately prior to authorizing or making any distribution in redemption or liquidation with respect to the Series H Preferred Stock (other than a purchase or acquisition of Series H Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all Total Preferred Stock), the Board of Directors of the Corporation shall, to the extent of any funds legally available therefor, declare a dividend in cash on the

Series H Preferred Stock payable on the distribution date in an amount equal to any accrued and unpaid dividends on the Series H Preferred Stock as of such date.

(h) Of the 750,000 authorized shares of Series H Preferred Stock, 250,000 shares may only be issued by the Corporation as in-kind dividends on previously issued shares of the Series H Preferred Stock in accordance with Section 2(a) and this subsection (h) and may not be issued for any other payment or consideration. If the Board of Directors elects (a “Dividend Election”) to pay the dividends in-kind by the issuance of shares of Series H Preferred Stock (a “Payment-in-Kind”), the Corporation shall promptly notify the holders of record of the Series H Preferred Stock entitled to such dividend of the election to make the Payment-in-Kind in lieu of cash dividends for a Dividend Reference Date. A Dividend Election for any particular Dividend Reference Date shall operate only for such Dividend Reference Date. Each Payment-in-Kind shall be equal in amount to that number of shares of Series H Preferred Stock that is equal in number to the aggregate cash dividend otherwise payable on any such Dividend Reference Date divided by $100, and shall be allocated on a pro rata basis to each holder entitled to receive such dividend. Certificates representing the shares of Series H Preferred Stock issuable on payment of any Payment-in-Kind shall be delivered to each holder entitled to receive such Payment-in-Kind (in appropriate denominations) as soon as practicable after the Dividend Election is made.

3. Liquidation.

(a) Upon a Liquidation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of Series H Preferred Stock shall be entitled to receive, pro rata on a pari passu basis with holders of the Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock, out of the remaining assets of the Corporation available for distribution to its stockholders, with respect to each share of the Series H Preferred Stock, an amount equal to the Liquidation Amount for each such share of Series H Preferred Stock before any distribution shall be made to the holders of the Common Stock or any other class of capital stock of the Corporation ranking junior to the Total Preferred Stock. If upon any Liquidation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of Total Preferred Stock the full Liquidation Amount for each such series of Total Preferred Stock to which they shall be entitled, the holders of each such series of Total Preferred Stock shall share in any distribution of assets in accordance with such full Liquidation Amount (pro rata on a pari passu basis in accordance with the total Liquidation Amount for each such series of Total Preferred Stock that each such holder would have received had there been such sufficient assets). After the payment of the full Liquidation Amount for each such series of Preferred Stock to the holders of Preferred Stock, such holders of Preferred Stock shall share ratably (on an as if converted basis as adjusted for stock splits, stock dividends, combinations, recapitalizations and other events) with the holders of Common Stock in all remaining assets of the Corporation available for distribution to its stockholders; provided, that in no event will the holders of Preferred Stock receive upon a Liquidation more than the greater of the Liquidation Amount per share or the amount per share such holders would have been entitled to receive if such shares of Preferred Stock had been converted into Common Stock immediately prior to the Liquidation.

(b) Except with respect to holders that elect to convert their shares of Series H Preferred Stock into Common Stock, for purposes of this Section 3, the holders of a majority of the Series H Preferred Stock may elect to treat a Sale of the Corporation as a Liquidation.

(c) The Corporation shall provide written notice to each holder of Series H Preferred Stock at least 20 days prior to any event of Liquidation or Sale of the Corporation. By giving written notice to the Corporation prior to any Liquidation or Sale of the Corporation, the holders of Series H Preferred Stock may, at their option, elect to forego their preference for Liquidation and have their shares of Series H Preferred Stock converted into Common Stock immediately prior to the event of Liquidation or Sale of the Corporation.

4. Voting Rights.

(a) Prior to the conversion of Series H Preferred Stock, the Series H Preferred Stock shall not be entitled to any vote and the holders thereof shall not be entitled to vote as stockholders of the Corporation, except as set forth in paragraph (b) of this Section 4.

(b) So long as at least twenty-five percent (25%) of the shares of Series H Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent) of the holders of at least a majority of the shares of Series H Preferred Stock then outstanding, voting as a separate class, take any action to:

(i) be merged with or into any other corporation or entity;

(ii) sell all or substantially all of its assets to any third party;

(iii) authorize, designate or issue any shares of a new class or series of equity securities senior to the Series H Preferred Stock as to liquidation preference, redemption or dividends;

(iv) repurchase, redeem or retire any shares of Series H Preferred Stock or other stock ranking as to redemption, conversion, payment of dividends or distribution of assets on a parity with the Series H Preferred Stock (“Parity Stock”), except pursuant to any provision of this Certificate of Designation;

(v) repurchase, redeem or retire any shares of Common Stock or any other shares of stock of any class of the Corporation, whether or not presently authorized, ranking as to redemption, conversion, payment of dividends or distribution of assets junior to the Series H Preferred Stock (“Junior Stuck”);

(vi) amend the Certificate of Incorporation of the Corporation or this Certificate of Designation in any manner adverse to the holders of the Series H Preferred Stock (it being understood and agreed that the amendment of the Certificate of Incorporation for the purpose of authorizing or issuing securities with rights and preferences junior or pari passu with the rights and preferences of the Preferred Stock shall not be deemed to be adverse to the Purchaser);

(vii) increase or decrease the authorized number of shares of Series H Preferred Stock or any other series of preferred stock; or

(viii) authorize or pay any dividend or other distribution (other than dividends payable to the holders of Series H Preferred Stock as contemplated by Section 2) with respect to the Preferred Stock or the Common Stock.

5. Conversion.

(a) Upon the terms set forth in this Section 5, each holder of each share of Series H Preferred Stock shall have the right, at such holder’s option, at any time and from time to time, to convert such share into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the Series H Preferred Stock by (B) the Conversion Price (as defined below) for the Series H Preferred Stock, as last adjusted for stock splits, stock dividends, combinations, recapitalizations and other events, and then in effect, by surrender of the certificate representing such share. The conversion price per share at which shares of Common Stock shall be issuable upon conversion of shares of Series H Preferred Stock shall be $10.00 for the Series H Preferred Stock, as adjusted pursuant to Section 5(f) below (the “Conversion Price”). The holder of any shares of Series H Preferred Stock may exercise the conversion right pursuant to this Section 5(a) by delivering to the Corporation the certificate for the shares to be converted, duly endorsed or assigned in blank or to the Corporation (if required by it), accompanied by written notice stating that the holder elects to convert such shares and staling the name or names (with address) in which the certificate or certificates for the shares of Common Stock are to be issued. Conversion shall be deemed to have been effected on the date when such delivery is made or upon the consummation of a Qualified Public Offering as provided below, if applicable (in each such case, the “Conversion Date”). The Corporation shall give holders of Series H Preferred Stock reasonable prior notice of a Sale of the Corporation, including the price and material terms and conditions thereof, in other to provide such holders a reasonable opportunity to consider whether to convert the Series H Preferred Stock into Common Stock at or prior to such Sale of the Corporation.

(b) Upon the consummation of a Qualified Public Offering, each share of Series H Preferred Stock shall automatically be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the Series H Preferred Stock for the share being converted by (B) the applicable Conversion Price, as last adjusted for stock splits, stock dividends, combinations, recapitalizations and other events, and then in effect. Notwithstanding the foregoing, upon a conversion under this subsection (b), the holders of the Series H Preferred Stock shall not have a right to receive or vote any shares of Common Stock unless and until the earlier to occur of (i) the filing of all notices and reports as may be required under the Hart-Scott-Rodino Antitrust Improvements Act (the “HSR Act”) and the expiration or early termination of the applicable waiting period under the HSR Act, or (ii) the delivery to the Corporation by the holders of the Series H Preferred Stock of a certificate stating that no filing under the HSR Act is required in order for the holders of the Series H Preferred Stock to receive or vote their shares of Common Stock upon conversion; provided further, following the earlier to occur of (i) or (ii), such right of the holders of Series H Preferred Stock to receive shares of Common Stock upon the conversion

of their shares of Series H Preferred Stock pursuant to this subsection (b) shall automatically exist. The Corporation shall hold in escrow, pending satisfaction of either of the conditions set forth in (i) or (ii), the shares of Common Stock to which the holders of Series H Preferred Stock are entitled following the automatic conversion of their shares as a result of the consummation of a Qualified Public Offering. If required by the HSR Act, the Corporation shall promptly make any necessary filings under the HSR Act.

(c) As promptly as practicable after the conversion of any shares of Preferred Stock into Common Stock under Section 5(a), 5(b) or
5(c) above, the Corporation shall issue and deliver upon the written order of such holder, to the place designated by such holder, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled, and a cash amount in respect of any fractional interest in a share of Common Stock as provided in Section 5(e) below. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the Conversion Date unless the transfer books of the Corporation are closed on that date, in which event such person shall be deemed to have become a stockholder of record on the next succeeding date on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date, and the rights of the holder of the shares of Preferred Stock so converted shall cease on the Conversion Date. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Preferred Stock surrendered for conversion, the Corporation shall issue and deliver, upon the written order of the holder of the certificate so surrendered for conversion, to the place designated by such holder, at the expense of the Corporation, a new certificate covering the number of shares of Preferred Stock representing the unconverted portion of the certificate so surrendered.

(d) Upon conversion, the Corporation will not be obligated to issue fractional shares of its Common Stock and shall distribute cash in lieu of such fractional shares. The number of full shares of Common Stock issuable upon conversion of each such the Series H Preferred Stock shall be computed on the basis of the aggregate number of shares of the Series H Preferred Stock to be converted. If fractional shares of Common Stock which would otherwise be issuable upon conversion of any such share are not issued, the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to the product of (i) the price of one share of Common Stock as determined in good faith by the Board and (ii) such fractional interest. The holders of fractional interests shall not be entitled to any rights as stockholders of the Corporation in respect of such fractional interests.

(e) The Conversion Price for each share of Series H Preferred Stock shall be subject to adjustment from time to time as follows:

applicable, of any such securities so issued and (y) with respect to any issuance after the completion of a Qualified Public Offering, the applicable Conversion Price, as in effect immediately prior to each such issuance, shall forthwith be lowered in accordance with
Section 5(e)(ii) below.

(ii) If the Corporation shall, at any time or from time to time after the Original Issuance Date, issue any shares of Common Stock (or be deemed to have issued shares of Common Stock as provided herein), other than Excluded Stock, without consideration or for a consideration per share less than the applicable Conversion Price, and in accordance with the provisions in Section 5(e)(i) above, then the applicable Conversion Price of each such series of Preferred Stock, as in effect immediately prior to each such issuance, shall forthwith be lowered to a price equal to the quotient obtained by dividing:

(A) an amount equal to the sum of (x) the total number of shares of Common Stock outstanding on a fully-diluted basis immediately prior to such issuance, multiplied by the applicable Conversion Price in effect immediately prior to such issuance, and (y) the consideration received by the Corporation upon such issuance; by

(B) the total number of shares of Common Stock outstanding on a fully-diluted basis immediately after the issuance of such Common Stock.

(iii) For the purposes of any adjustment of the applicable Conversion Price pursuant to clauses (i) and (ii) above, the following provisions shall be applicable:

(A) In the case of the issuance of Common Stock for cash in a public offering or private placement, the consideration shall be deemed to be the amount of cash paid therefor after deducting therefrom any discounts, commissions or placement fees payable by the Corporation to any underwriter or placement agent in connection with the issuance and sale thereof.

(B) In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the Fair Value Per Share thereof notwithstanding any accounting treatment.

(C) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities except for options to acquire Excluded Stock:

options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections 5(e)(iii) (A) and 5(e)(iii)(B) above), if any, received by the Corporation upon the issuance of such options or rights plus the minimum purchase price provided in such options or rights for the Common Stock covered thereby;

(2) the aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities, options, or rights were issued and for a consideration equal to the consideration received by the Corporation for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the additional consideration, if any, to be received by the Corporation upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Sections 5(e)(iii)(A) and 5(e)(iii)(B) above);

(3) on any change in the number of shares or exercise price of Common Stock deliverable upon exercise of any such options or rights or conversions of or exchanges for such securities, other than a change resulting from the antidilution provisions thereof, the Conversion Price shall forthwith be readjusted to the Conversion Price as would have been obtained had the adjustment made upon the issuance of such options, rights or securities not converted prior to such change or options or rights related to such securities not converted prior to such change been made upon the basis of such change; and

(4) on the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Conversion Price shall forthwith be readjusted to the Conversion Price as would have been obtained had the adjustment made upon the issuance of such options, rights, securities or options or rights relaxed to such securities been made upon the basis of the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities, or upon the exercise of the options or rights related to such securities and subsequent conversion or exchange thereof.

(iv) If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, subdivision or split-up, the Conversion Price shall be appropriately decreased so that the number of shares of Common Stock issuable on

conversion of each share of Preferred Stock shall be increased in proportion to such increase in outstanding shares.

(v) If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is decreased by a combination of the outstanding shares of Common Stock, then, following the record date for such combination, the Conversion Price shall be appropriately increased so that the number of shares of Common Stock issuable on conversion of each share of Preferred Stock shall be decreased in proportion to such decrease in outstanding shares.

(vi) In the event of any capital reorganization of the Corporation, any reclassification of the stock of the Corporation (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or any consolidation or merger of the Corporation, each share of Series H Preferred Stock shall after such reorganization, reclassification, consolidation, or merger be convertible into the kind and number of shares of stock or other securities or property of the Corporation or of the corporation resulting from such consolidation or surviving such merger to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon conversion of such share of Series H Preferred Stock would have been entitled upon such reorganization, reclassification, consolidation or merger. The provisions of this clause shall similarly apply to successive reorganizations, reclassifications, consolidations or mergers.

(vii) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least .1% in such Conversion Price; provided, that any adjustments not required to be made by virtue of this sentence shall be carried forward and taken into account in any subsequent adjustments. All calculations under Sections 5(e)(i) through 5(e)(vi) above shall be made to the nearest one hundredth (1/100) of a cent or the nearest one tenth (1/10) of a share, as the case may be.

(viii) In any case in which the provisions of this Section 5(e) shall require that an adjustment shall become effective immediately after a record date of an event, the Corporation may defer until the occurrence of such event (A) issuing to the holder of any share of Series H Preferred Stock converted after such record date and before the occurrence of such event the shares of capital stock issuable upon such conversion by reason of the adjustment required by such event in addition to the shares of capital stock issuable upon such conversion before giving effect to such adjustments, and (B) if applicable, paying to such holder any amount in cash in lieu of a fractional share of capital stock pursuant to Section 5(d) above; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares and such cash.

(ix) Whenever the Conversion Price shall be adjusted as provided in Sections 5(e)(i) and 5(e)(ii), the Corporation shall make available for

inspection during regular business hours, at its principal executive offices or at such other place as may be designated by the Corporation, a statement, signed by its chief executive officer, showing in detail the facts requiring such adjustment and the Conversion Price that shall be in effect after such adjustment. The Corporation shall also file such statements with its transfer agent or agents for its Preferred Stock and Common Stock. The Corporation shall also cause a copy of such statement to be sent by first class certified mail, return receipt requested and postage prepaid, to each holder of Preferred Stock affected by the adjustment at such holder’s address appearing on the Corporation’s records. Where appropriate, such copy may be given in advance and may be included as part of any notice required to be mailed under the provisions of Section 5(e)(x) below.

(x) If the Corporation shall propose to take any action of the types described in clauses (iv), (v) or (vi) of this Section 5(e), the Corporation shall give notice to each holder of shares of Preferred Stock, which notice shall specify the record date, if any, with respect to any such action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon conversion of shares of Preferred Stock. In the case of any action which would require the fixing of a record date, such notice shall be given at least twenty (20) days prior to the date so fixed, and in case of all other action, such notice shall be given at least thirty (30) days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action.

(xi) The Corporation shall at all times keep reserved, free from preemptive rights, out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Series H Preferred Stock, sufficient shares of Common Stock to provide for the conversion of all outstanding shares of Series H Preferred Stock.

(xii) Without duplication of any other adjustment provided for in this Section 5(e), at any time the Corporation makes or fixes a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in securities of the Corporation other than shares of Common Stock, provision shall be made so that each holder of Series H Preferred Stock shall receive upon conversion thereof, in addition to the shares of Common Stock receivable thereupon, the number of securities of the Corporation which it would have received had its shares of Series H Preferred Stock been converted into shares of Common Stock on the date of such event and had such holder thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by it pursuant to this paragraph during such period, subject to the sum of all other adjustments called for during such period under this Section 5 with respect to the rights of such holder of Series H Preferred Stock.

(xiii) The Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 5(e) and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the holders of Series H Preferred Stock against impairment.

(xiv) The computations of all amounts under this Section 5(e) shall be made assuming all other anti-dilution or similar adjustments to be made to the terms of all other securities resulting from the transaction causing an adjustment pursuant to this Section 5(e) have previously been made so as to maintain the relative economic interest of the Series H Preferred Stock vis a vis other securities issued by the Corporation.

(xv) The Corporation shall take or cause to be taken such steps as shall be necessary to ensure that the par value per share of Common Stock is at all times less than or equal to the Conversion Price. The Corporation shall pay all issue taxes, if any, incurred in connection with the issuance of its Common Stock or other securities or properties on conversion of any shares of the Series H Preferred Stock, but the Corporation shall not pay any transfer or other taxes incurred by reason of the issuance of such Common Stock or other securities or properties in names other than those in which the share or shares of the Series H Preferred Stock surrendered for conversion may stand.

6. Redemption.

(a) The Corporation shall be obligated to redeem and shall promptly redeem all of the shares of Series H Preferred Stock, upon written request by the holders of a majority of the issued and outstanding shares of Series H Preferred Stock after the occurrence of a Triggering Event, for an amount per share equal to (i) the Liquidation Amount, plus (ii) on a per share basis, an amount equal to all dividends, if any, accumulated and unpaid, whether or not declared or earned (including any dividends thereon calculated through the date of redemption) (the “Mandatory Redemption Obligation”).

(b) If and so long as the Mandatory Redemption Obligation with respect to the Series H Preferred Stock shall not fully be discharged, the Corporation shall not, directly or indirectly, declare or pay any dividend or make any distributions on, or purchase, redeem or retire, or satisfy any mandatory or optional redemption, sinking fund or other similar obligation in respect of, any Parity Stock or Junior Stock or warrants, rights or options exercisable for any such Parity Stock or Junior Stock (other than dividends or distributions payable in a particular class or series of such Parity Stock or Junior Stock, as the case may be, to holders thereof).

7. Definitions.

As used herein, the following terms shall have the following meanings:

(a) “Affiliate” shall mean, with respect to any Person, (i) a director or officer of such Person, (ii) a spouse, parent, sibling or descendant of such Person (or a spouse, parent, sibling or descendant of any director or executive officer of such Person), and (iii) any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.

(b) “Board” shall mean the Board of Directors of the Corporation.

(c) “Change of Control of the Corporation” shall mean any transaction or any event as a result of which (i) any one or more Persons acquires or for the first time controls or is able to vote (directly or through nominees or beneficial ownership) after the Original Issuance Date 51% or more of any class of stock of the Corporation outstanding at the time having power ordinarily to vote for directors of the Corporation or (ii) the control of more than 51% of the number of shares of Common Stock held by Persons on the Original Issuance Date has been transferred (excluding transfers by and among such Persons) since the Original Issuance Date in the aggregate. For purpose of this paragraph (c), “Common Stock” shall include shares of Common Stock issuable upon exercise of warrants, options and other rights to acquire Common Stock outstanding on the Original Issuance Date, whether or not at the time exercised or exercisable.

(d) “Common Stock” shall mean the Common Stock, par value $.001, of the Corporation.

(e) “Common Stock Equivalent” shall mean all shares of Common Stock outstanding and all shares of Common Stock issuable (without regard to any present restrictions on such issuance) upon the conversion, exchange or exercise of all securities of the Corporation that are convertible, exchangeable or exercisable for Common Stock and all Common Stock appreciation rights, phantom Common Stock rights and other rights to acquire, or to receive or to be paid amounts of, the Common Stock.

(f) “Excluded Stock” shall mean (A) up to 10,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees, consultants, vendors or directors of the Corporation or its subsidiaries, (B) shares of Common Stock issued upon conversion of shares of Total Preferred Stock, (C) shares of Common Stock issued upon exercise of any existing warrants, notes or other instruments convertible or exercisable for Common Stock as of the date hereof; and (D) Common Stock or other equity securities (“Strategic Issuances”) issued as part of a strategic arrangement or alliance by the Corporation or its Subsidiaries to building licensors, landlords, carriers, joint venture partners, vendors (other than equipment vendors and software vendors), consultants, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of the Corporation, provided, that, such Strategic Issuances do not, in the aggregate, involve the issuance of securities accounting for in excess of five percent (5%) of the fully diluted outstanding Common Stock of

the Company, including in the case of (A), (B), (C), and (D), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable to such options, warrants or shares, as the case may be.

(g) “Fair Value Per Share” shall mean the fair value of each share of Stock, as determined in good faith by the Board.

(h) “Liquidation” shall mean any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (including without limitation a liquidation or reorganization under Chapter 11 of the United States Bankruptcy Code, as amended and as may hereinafter be amended), other than any dissolution, liquidation or winding up in connection with any reincorporation of the Corporation in Delaware.

(i) “Liquidation Amount” shall mean the Original Issuance Price as to each share of Preferred Stock plus any accrued but unpaid dividends.

(j) “Original Issuance Date” means the date of original issuance of the first share of the Series H Preferred Stock.

(k) “Original Issuance Price” shall mean $15.00 per share for the Series D Preferred Stock, $15.00 per share for the Series E Preferred Stock, $30.00 per share for the Series F Preferred Stock and $100.00 per share for the Series H Preferred Stock.

(l) “Preferred Stock” shall mean the Series D Preferred Stock, the Series E Preferred Stock, the Series F Preferred Stock and the Series H Preferred Stock.

(m) “Qualified Public Offering” shall mean fully underwritten public offering (underwritten by a reputable underwriter of national reputation) of shares of Common Stock registered pursuant to the Securities Act with proceeds to the Company of at least $75,000,000 (net of underwriting discounts and expenses).

(n) “Sale of the Corporation” shall mean (1) the sale of all or substantially all of the Corporation’s assets to a Person who is not an Affiliate of the Corporation, (ii) the sale or transfer of the outstanding capital stock of the Corporation to one or more Persons who are not Affiliates of the Corporation, or (iii) the merger or consolidation of the Corporation with or into another Person who is not an Affiliate of the Corporation, in each case in clauses (ii) and (iii) above under circumstances in which the holders of a majority in voting power of the outstanding capital stock of the Corporation, immediately prior to such transaction, own less than a majority in voting power of the outstanding capital stock of the Corporation or the surviving or resulting corporation or acquirer, as the case maybe, immediately following such transaction. A sale (or multiple related sales) of one or more subsidiaries of the Corporation (whether by way of merger, consolidation, reorganization or sale of all or substantially all assets or securities) which constitutes all or substantially all of the consolidated assets of the Corporation shall be deemed a Sale of the Corporation.

(o) “Securities Purchase Agreement” shall mean that certain agreement dated as of July 28, 2000 by and among the Corporation and the purchaser named therein, as the same may be amended, modified or supplemented from time to time.

(p) “Series C Preferred Stock” shall mean the Series C Preferred Stock, par value $.001, of the Corporation.

(q) “Series D Preferred Stock” shall mean the Series D Preferred Stock, par value $.001, of the Corporation.

(r) “Series E Preferred Stock” shall mean the Series E Preferred Stock, par value, $.001, of the Corporation.

(s) “Series F Preferred Stock” shall mean the Series F Preferred Stock, par value, $.001, of the Corporation.

(t) “Stock” shall mean (i) the presently issued and outstanding shares of Common Stock and Total Preferred Stock and any options or stock subscription warrants exercisable therefor (which options and warrants shall be deemed to be that number of outstanding shares of Stock for which they are exercisable), (ii) any additional shares of capital stock of the Corporation hereafter issued and outstanding and (iii) any shares of capital stock of the Corporation into which such shares may be converted or for which they may be exchanged or exercised.

(u) “Total Preferred Stock” shall mean the Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and Series H Preferred Stock.

(v) “Triggering Event” shall mean the earlier to occur of (i) a Change of Control, or (ii) the sale of a majority of the assets of the Corporation.


				STATE OF DELAWARE
				SECRETARY OF STATE
				DIVISION OF CORPORATIONS
				FILED 05:00 PM 07/31/2000
				001386212 – 3230910

CERTIFICATE OF DESIGNATION

SERIES C PREFERRED STOCK

FIBERNET HOLDCO, INC.

(a Delaware corporation)

FiberNet Holdco, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST: The name of the corporation (hereinafter the “Corporation”) is FiberNet Holdco, Inc.

SECOND: The Certificate of Designation of the Series C Preferred Stock, $.001 par value, of the Corporation attached hereto as Exhibit A was duly adopted in accordance with Sections 141(f) and 151 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, Michael S. Liss, President of the Corporation, has executed this Certificate of Designation this 31^st day of July, 2000.


	FIBERNET HOLDCO, INC.
	By:	/s/ Michael S. Liss
	Michael S. Liss
	President

Exhibit A

SERIES C PREFERRED STOCK

1. Authorized Shares.

133,333 shares of Series C Preferred Stock, $.001 par value (“Series C Preferred Stock”) of the Corporation have been authorized by the Corporation for issuance.

2. Dividends.

When, as, and if declared by the Board out of funds legally available for that purpose, the holders of Series C Preferred Stock shall be entitled to share in any dividends declared and paid or set aside for the Common Stock on a ratable basis based upon the number of shares of Common Stock into which the Series C Preferred Stock is then convertible.

3. Liquidation.

Upon a Liquidation, after payment or provision for payment of the debts and other liabilities of the Corporation the holders of Series C Preferred Stock outstanding shall be entitled to receive, out of the remaining assets of the Corporation available for distribution to its stockholders, with respect to each share of Series C Preferred Stock, an amount equal to the Liquidation Amount of such share before any distribution shall be made to the holders of the Common Stock or any other class of capital stock of the Corporation ranking junior to the Series C Preferred Stock; provided, however, that any distributions made by the Corporation to holders of Series C Preferred Stock pursuant to this Section 3 shall be made on an equal priority, pari passu basis with holders of Preferred Stock. If upon any Liquidation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of Total Preferred Stock the full Liquidation Amount to which they shall be entitled, the holders of Total Preferred Stock shall share on a pari passu basis with the holders of all other shares of Total Preferred Stock in any distribution of assets in accordance with such full Liquidation Amount (pro rata in accordance with the total Liquidation Amount that each such holder would have received had there been such sufficient assets). After the payment of the full Liquidation Amount to the holders of Total Preferred Stock, such holders of Total Preferred Stock shall have no claim to any remaining assets of the Corporation, if any.

4. Redemption.

(a) Each holder of shares of Series C Preferred Stock shall have the right to require the Corporation to redeem all such shares upon the earlier of (i) the fifth anniversary of the Original Issuance Date and (ii) the occurrence of any Redemption Event. At least twenty (20) days but not more than sixty (60) days prior to each Redemption Event, the Corporation shall provide written notice of such Redemption Event (a “Mandatory Redemption Notice”) to each holder of Series C Preferred Stock and the date on which such Redemption Event is scheduled to occur. Each holder of Series C Preferred Stock may elect to have its shares of Series C Preferred Stock redeemed under this Section 4(a) by notifying the Corporation of

such election no later than 30 days prior to the fifth anniversary, of the Original Issuance Date or, if applicable, fifteen (15) days after receipt of any Mandatory Redemption Notice. In the case of a redemption pursuant to clause (ii) of this Section 4(a), the Corporation shall effect such redemption immediately following the Redemption Event. In the case of a redemption pursuant to clause (i) of this Section 4(a), the Corporation shall effect such redemption in three (3) equal annual installments with the first such installment due on the fifth anniversary of the Original Issuance Date. If the assets of the Corporation available for redemption of Series C Preferred Stock shall be insufficient to permit the payment of the full price required to be paid under this Section 4, then the holders of Series C Preferred Stock shall (in addition to their rights pursuant to Section 4(b) below) share ratably in any such redemption based on the respective number of shares that such holders own.

(b) The price (the “Redemption Price”) at which each share of Series C Preferred Stock is to be redeemed by the Corporation pursuant to this Section 4 shall be equal to the Liquidation Amount of such share on the date of such redemption. On and after any date that the Corporation actually redeems shares of Series C Preferred Stock pursuant to this Section 4, all rights in respect of the shares of Series C Preferred Stock to be redeemed, except the right to receive the Redemption Price, shall cease and terminate, and such shares shall no longer be deemed to be outstanding, whether or not the certificates representing such shares have been received by the Corporation. The conversion of any shares of Series C Preferred Stock into Common Stock shall have no effect on the Redemption Price payable in connection with the redemption of the shares of Series C Preferred Stock not so converted. The Redemption Price per share of the Series C Preferred Stock called for redemption pursuant to this Section 4 and not redeemed on the date required therefor (the “Redemption Date”) because the funds legally available for redemption are not sufficient to redeem such shares or for any other reason shall be the Redemption Price plus an interest payment per share. The interest payment per share shall equal the applicable Redemption Price per share multiplied by an interest rate of twelve percent (12%) per annum, compounded annually; interest shall begin to accrue with respect to a particular share of Series C Preferred Stock on the applicable Redemption Date of such share and shall continue to accrue up to but excluding the actual date on which the Corporation pays the Redemption Price for such share.

(c) The number of shares of Series C Preferred Stock deemed to be held by the holders of the Series C Preferred Stock and to be redeemed pursuant to the terms of this Section 4 shall be increased on a one for one basis each time the number of shares of Common Stock into which such shares of Series C Preferred Stock are convertible pursuant to the terms of Section 6 hereof is increased in accordance with the provisions of such Section 6.

(d) Any communication or notice relating to redemption given pursuant to this Section 4 shall be sent by first-class certified mail, return receipt requested, postage prepaid, to the holders of record of shares of Series C Preferred Stock, at their respective addresses as the same shall appear on the books of the Corporation, or to the Corporation at the address of its principal, or registered office, as the case may be. At any time on or after the Redemption Date, the holders of record of shares of Series C Preferred Stock being redeemed in accordance with this Section 4 shall be entitled to receive the Redemption Price upon actual delivery to the Corporation or its agents of the certificates representing the shares to be redeemed.

5. Voting Rights.

(a) Prior to conversion thereof, in addition to the rights provided by law or in the Corporation’s By-laws, each share of Series C Preferred Stock shall entitle the holder thereof to such number of votes as shall equal the number of votes of 117.03 shares of Common Stock for each share of Common Stock into which the Series C Preferred Stock is convertible. The holder of Series C Preferred Stock shall be entitled to vote on all matters as to which holders of Common Stock shall be entitled to vote, in the same manner and with the same effect as such holders of Common Stock, voting together with the holders of Common Stock as one class.

(b) In addition to the other rights specified in this Section 5, the Majority of Interest, voting separately as one class, shall at all times have the special and exclusive right to elect two directors to the Board and any Board committees. In any election of directors by the Series C Preferred Stock pursuant to this Section 5(b), each holder of Series C Preferred Stock shall be entitled to one vote for each share of Series C Preferred Stock held. The Corporation shall take all actions necessary to effectuate the terms and provisions of this Section 5(b). The special and exclusive voting rights of the holders of Series C Preferred Stock contained in this Section 5(b) may be exercised either at a special meeting of the holders of Series C Preferred Stock called as provided below, or at any annual or special meeting of the stockholders of the Corporation, or by written consent of such holders in lieu of a meeting. The directors to be elected pursuant to this Section 5(b) shall serve for a term extending from the date of their election and qualification until their successor has been elected and qualified. If at any time any directorship to be filled by the Majority in Interest pursuant to this Section 5(b) has been vacant for a period of ten (10) days, the Secretary of the Corporation shall, upon the written request of any holder of Series C Preferred Stock, call a special meeting of the holders of Series C Preferred Stock for the purpose of electing a director to fill such vacancy. Such meeting shall be held at the earliest practicable date, and at such place, as is specified in or determined in accordance with the By-laws of the Corporation. If such meeting shall not be called by the Secretary of the Corporation within ten (10) days after personal service of such written request on him or her, then any holder of Series C Preferred Stock may designate in writing one of their members to call such meeting at the expense of the Corporation, and such meeting may be called by such person so designated upon the notice required for annual meetings of stockholders and shall be held at such place as specified in such notice. Any holder of Series C Preferred Stock so designated shall have access to the stock books of the Corporation relating to Series C Preferred Stock for the purpose of calling a meeting of the stockholders pursuant to these provisions. At any meeting held for the purpose of electing directors as provided in this Section 5(b), the presence, in person or by proxy, of the Majority in Interest shall be required to constitute a quorum of the Series C Preferred Stock for such election. A vacancy in the directorship to be elected by the Majority in Interest pursuant to this Section 5(b) may be filled only by vote or written consent in lieu of a meeting of the Majority in Interest.

(i) in any manner authorize, create, designate, issue or sell any class or series of capital stock (including any shares of treasury stock) or rights, options, warrants or other securities convertible into or exercisable or exchangeable for capital

stock or any debt security which by its terms is convertible into or exchangeable for any equity security or has any other equity feature or any security that is a combination of debt and equity, which, in each case, as to the payment of dividends, distribution of assets or redemptions, including, without limitation, distributions to be made upon a Liquidation, is pari passu with or is senior to the Series C Preferred Stock or which in any manner adversely affects the holders of the Series C Preferred Stock;

(ii) in any manner alter or change the terms, designations, powers, preferences or relative, participating, optional or other special rights, or the qualifications, limitations or restrictions, of the Series C Preferred Stock;

(iii) reclassify the shares of any class or series of capital stock into shares of any class or series of capital stock (A) ranking, either as to payment of dividends, distributions of assets or redemptions, including, without limitation, distributions to be made upon a Liquidation, senior to or on a parity with the Series C Preferred Stock, or (B) which in any manner adversely affects the rights of the holders of the Series C Preferred Stock in their capacity as such;

(iv) take any action to cause any amendment, alteration or repeal of any of the provisions of (A) the Certificate of Incorporation or (B) the By-laws of the Corporation, if such amendment, alteration or repeal would have an adverse effect on the rights of the holders of the Series C Preferred Stock; or

(v) approve or authorize any Liquidation or any recapitalization of the Corporation or any subsidiary.

6. Conversion.

(a) Upon the terms set forth in this Section 6, each holder of each share of Series C Preferred Stock shall have the right, at such holder’s option, at any time and from time to time, to convert such share into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount by (B) the Conversion Price (as defined below), as last adjusted and then in effect, by surrender of the certificate representing such share. The Conversion Price per share at which shares of Common Stock shall be issuable upon conversion of shares of Series C Preferred Stock (the “Conversion Price”) shall be the Series C Original Issuance Price as adjusted pursuant to Section 6(f) below. The holder of any shares of Series C Preferred Stock may exercise the conversion right pursuant to this Section 6(a) by delivering to the Corporation the certificate for the shares to be converted, duly endorsed or assigned in blank or to the Corporation (if required by it), accompanied by written notice stating that the holder elects to convert such shares and stating the name or names (with address) in which the certificate or certificates for the shares of Common Stock are to be issued. Conversion shall be deemed to have been effected on the date when such delivery is made or upon the consummation of a Qualified Public Offering as provided below, if applicable (in each such case, the “Conversion Date”). The Corporation shall give holders of Series C Preferred Stock reasonable notice of a Sale of the Corporation, including the price and material terms and conditions thereof, in order to provide such holders a reasonable opportunity to

consider whether to redeem or convert the Series C Preferred Stock into Common Stock at or prior to such Sale of the Corporation.

(b) Upon the conversion of shares of Series C Preferred Stock owned or held by the Majority in Interest in accordance with this Section 6(b) or the conversion or repayment of the Notes owned or held by the Majority in Interest in accordance with the terms of the Notes, all shares of Series C Preferred Stock held by holders of Common Stock received upon conversion of such Notes who did not subsequently exchange such Common Stock for non-voting Preferred Stock shall be deemed to be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) Liquidation Amount for the share being converted by (B) the applicable Conversion Price, as last adjusted and then in effect.

(c) Upon the terms set forth in this Section 6, each share of Series C Preferred Stock shall automatically be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount, if any for the share being converted by (B) the applicable Conversion Price, as last adjusted and then in effect, upon the consummation of a Qualified Public Offering,

(d) As promptly as practicable after the conversion of any shares of Series C Preferred Stock into Common Stock under Section 6(a), 6(b) or 6(c) above, the Corporation shall issue and deliver to or upon the written order of such holder, to the place designated by Such holder, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled, and a cash amount in respect of any fractional interest in a share of Common Stock as provided in Section 6(e) below. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the Conversion Date unless the transfer books of the Corporation are closed on that date, in which event such person shall be deemed to have become a stockholder of record on the next succeeding date on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date, and the rights of the holder of the shares of Series C Preferred Stock so converted shall cease on the Conversion Date. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Series C Preferred Stock surrendered for conversion, the Corporation shall issue and deliver to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Corporation, a new certificate covering the number of shares of Series C Preferred Stock representing the unconverted portion of the certificate so surrendered.

(e) Upon conversion, the Corporation (unless otherwise requested by the Majority in Interest) will issue fractional shares of its Common Stock, as applicable, and shall not distribute cash in lieu of such fractional shares. The number of full shares of Common Stock issuable upon conversion of Series C Preferred Stock shall be computed on the basis of the aggregate number of shares of such Series C Preferred Stock to be converted. If fractional shares of Common Stock which would otherwise be issuable upon conversion of any such share are not issued, the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to the product of (i) the price of one share of Common Stock as determined in good faith by the Board and (ii) such fractional interest. The holders of fractional interests shall

not be entitled to any rights as stockholders of the Corporation in respect of such fractional interests.

(f) The Conversion Price for each share of Series C Preferred Stock shall be subject to adjustment from time to time as follows:

(i) If the Corporation shall, at any time or from time to time after the Original Issuance Date of the Series C Preferred Stock, issue any shares of Common Stock (or be deemed to have issued shares of Common Stock as provided herein), other than Excluded Stock without consideration or for a consideration per share less than the Conversion Price for such Series C Preferred Stock, in effect immediately prior to the issuance of such Common Stock, then the Conversion Price, as in effect immediately prior to each such issuance, shall forthwith be lowered to a price equal to the quotient obtained by dividing:

(A) an amount equal to the sum of (x) the total number of shares of Common Stock outstanding on a fully-diluted basis immediately prior to such issuance, multiplied by the Conversion Price in effect immediately prior to such issuance, and (y) the consideration received by the Corporation upon such issuance; by

(B) the total number or shares of Common Stock outstanding on a fully-diluted basis immediately after the issuance of such Common Stock.

(ii) For the purposes of any adjustment of the Conversion Price pursuant to clause (i) above, the following provisions shall be applicable:

if any, received by the Corporation upon the issuance of such options or rights plus the minimum purchase price provided in such options or rights for the Common Stock covered thereby;

(4) on the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Conversion Price shall forthwith be readjusted to the Conversion Price as would have been obtained had the adjustment made upon the issuance of such options, rights, securities or options or rights related to such securities been made upon the basis of the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities, or upon the exercise of the options or rights related to such securities and subsequent conversion or exchange thereof.

(iii) If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, subdivision or split-up, the Conversion Price shall be appropriately decreased so that the number of shares of Common Stock issuable on conversion of each share of Series C Preferred Stock shall be increased in proportion to such increase in outstanding shares.

(iv) If, at any time the Original Issuance Date, the number of shares of Common Stock outstanding is decreased by a combination of the outstanding shares of Common Stock, then, following the record date for such combination, the Conversion Price shall be appropriately increased so that the number of shares of Common Stock issuable on conversion of each share of Series C Preferred Stock shall be decreased in proportion to such decrease in outstanding shares.

(v) In the event of any capital reorganization of the Corporation, any reclassification of the stock of the Corporation (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or any consolidation or merger of the Corporation, each share of Series C Preferred Stock shall after such reorganization, reclassification, consolidation, or merger be convertible into the kind and number of shares of stock or other securities or property of the Corporation or of the corporation resulting from such consolidation or surviving such merger to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon conversion of such share of Series C Preferred Stock would have been entitled upon such reorganization, reclassification, consolidation or merger. The provisions of this clause shall similarly apply to successive reorganizations, reclassifications, consolidations or mergers.

(vi) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least .1% in such Conversion Price; provided, that any adjustments not required to be made by virtue of this sentence shall be carried forward and taken into account in any subsequent adjustment. All calculations under Sections 6(f)(i) through 6(f)(v) above shall be made to the nearest one hundredth (1/100) of a cent or the nearest one tenth (1/10) of a share, as the case may be.

(vii) In any case in which the provisions of this Section 6(f) shall require that an adjustment shall become effective immediately after a record date of an event, the Corporation may defer until the occurrence of such event (A) issuing to the holder of any shares of Series C Preferred Stock converted after such record date and before the occurrence of such event the shares of capital stock issuable upon such conversion by reason of the adjustment required by such event in addition to the shares of capital stock issuable upon such conversion before giving effect to such adjustments, and (B) if applicable, paying to such holder any amount in cash in lieu of a fractional share of capital stock pursuant to Section 6(e) above; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares and such cash.

(viii) Whenever the Conversion Price shall be adjusted as provided in Section 6(f)(i), the Corporation shall make available for inspection during regular business hours, at its principal executive offices or at such other place as may be designated by the Corporation, a statement, signed by its chief executive officer, showing in detail the facts requiring such adjustment and the Conversion Price that shall be in

effect after such adjustment. The Corporation shall also cause a copy of such statement to be sent by first class certified mail, return receipt requested and postage prepaid, to each holder of Series C Preferred Stock affected by the adjustment at such holder’s address appearing on the Corporation’s records. Where appropriate, such copy may be given in advance and may be included as part of any notice required to be mailed under the provisions of Section 6(f)(ix) below.

(ix) If the Corporation shall propose to take any action of the types described in clauses (iii), (iv) or (v) of this Section 6(f), the Corporation shall give notice to each holder of shares of Series C Preferred Stock, which notice shall specify the record date, if any, with respect to any such action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon conversion of shares of Series C Preferred Stock. In the case of any action which would require the fixing of a record date, such notice shall be given at least twenty (20) days prior to the date so fixed, and in case of all other action, such notice shall be given at least thirty (30) days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action.

(x) The Corporation shall at all times keep reserved, free from preemptive rights, out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of Series C Preferred Stock, sufficient shares of Common Stock to provide for the conversion of all outstanding shares of Series C Preferred Stock.

(xi) Without duplication of any other adjustment provided for in this Section 6, at any time the Corporation makes or fixes a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in securities of the Corporation other than shares of Common Stock, provision shall be made so that each holder of Series C Preferred Stock shall receive upon conversion thereof, in addition to the shares of Common Stock receivable thereupon, the number of securities of the Corporation which it would have received had its shares of Series C Preferred Stock been converted into shares of Common Stock on the date of such event and had such holder thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by it pursuant to this paragraph during such period, subject to the sum of all other adjustments called for during such period under this Section 6 with respect to the rights of such holder of Series C Preferred Stock.

(xii) In the event that the Majority in Interest consents in writing to limit, or waive in its entirety, any anti-dilution adjustment to which the holders of the Series C Preferred Stock would otherwise be entitled hereunder, the Corporation shall not be required to make any adjustment whatsoever with respect to any Series C Preferred Stock in excess of such limit or at all, as the terms of such consent may dictate.

(xiii) The Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 6(f) and in the taking of all such actions as may be necessary or appropriate in order to protect the exercise rights of the holders of Series C Preferred Stock against impairment.

(xiv) The computations of all amounts under this Section 6(f) shall be made assuming all other anti-dilution or similar adjustments to be made to the terms of all other securities resulting from the transaction causing an adjustment pursuant to this Section 6(f) have previously been made so as to maintain the relative economic interest of the Series C Preferred Stock vis a vis all other securities issued by the Corporation.

7. Definitions.

As used herein, the following terms shall have the following meanings:

(a) “Affiliate” has the meaning ascribed to it in the Securities Purchase Agreement.

(b) “Board” shall mean the Board of Directors of the Corporation.

(c) “Change of Control of the Corporation” shall mean any transaction or any event as a result of which (i) any one or more Persons acquires or for the first time controls or is able to vote (directly or through nominees or beneficial ownership) after the Original Issuance Date 25% or more of any class of stock of the Corporation outstanding at the time having power ordinarily to vole for directors of the Corporation or (ii) the control of more than 25% of the number of shares of Common Stock held by Persons on the Original Issuance Date has been transferred (including transfers by and among such Persons) since the Original Issuance Date in the aggregate. For purpose of this paragraph (c), “Common Stock” shall include shares of Common Stock issuable upon exercise of warrants, options and other rights to acquire Common Stock outstanding on the Original Issuance Date, whether or not at the time exercised or exercisable.

(d) “Common Stock” shall mean the Common Stock, par value $0.01, of the Corporation.

Common Stock appreciation rights, phantom Common Stock rights and other rights to acquire, or to receive or to be paid amounts of, the Common Stock.

(f) “Excluded Stock” shall mean (A) up to 6,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees, consultants, vendors or directors of the Corporation or its subsidiaries, (B) shares of Common Stock issued upon conversion of shares of Total Preferred Stock, (C) shares of Common Stock issued upon exercise of any existing warrants, notes or other instruments convertible or exercisable for Common Stock as of the date hereof, and (D) Common Stock or other equity securities issued as part of a strategic arrangement or alliance by the Corporation or its Subsidiaries to building licensors, landlords, carriers, joint venture partners, vendors, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of Corporation, including in the case of (A), (B), (C) and (D), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable to such options, warrants or shares, as the case may be.

(g) “Fair Value Per Share” shall mean the fair value of each share of Stock, as determined in good faith by the Board.

(h) “Liquidation” shall mean any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, other than any dissolution, liquidation or winding up in connection with any reincorporation of the Corporation in Delaware.

(i) “Liquidation Amount” shall mean as to each share of Series C Preferred Stock, the Series C Original Issuance Price plus any accrued but unpaid dividends.

(j) “Majority in Interest” shall have the meaning ascribed to such term in the Securities Purchase Agreement.

(k) “Original Issuance Date” for the Series C Preferred Stock means the date of original issuance of the first share of the Series C Preferred Stock.

(l) “Preferred Stock” shall mean the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock.

(m) “Qualified Public Offering” shall have the meaning ascribed to such term in the Stockholders Agreement.

(n) “Redemption Event” shall mean (i) a sale, merger or consolidation of the Corporation resulting in the transfer of voting control or majority economic interest of the Corporation, (ii) a sale or other disposition of all or substantially all of the Corporation’s assets, (iii) a Change of Control of the Corporation or (iv) a breach by the Corporation of any term of this the Amended and Restated Certificate of Incorporation, as amended from time to time, or any provision of the Securities Purchase Agreement, Stockholders Agreement or Registration Rights Agreement (as defined in the Securities Purchase Agreement), each dated as of the Original Issuance Date and as may be amended from time to time when such breach remains outstanding and uncured for a period of 30 days from the date of notice thereof.

(o) “Sale of the Corporation” shall mean (i) the sale of all or substantially all of the Corporation’s assets to a Person who is not an Affiliate of the Corporation, (ii) the sale or transfer of the outstanding capital stock of the Corporation to one or more Persons who are not Affiliates of the Corporation, or (iii) the merger or consolidation of the Corporation with or into another Person who is not an Affiliate of the Corporation, in each case in clauses (ii) and (iii) above under circumstances in which the holders of a majority in voting power of the outstanding capital stock of the Corporation, immediately prior to such transaction, own less than a majority in voting power of the outstanding capital stock of the Corporation or the surviving or resulting corporation or acquirer, as the case may be, immediately following such transaction. A sale (or multiple related sales) of one or more subsidiaries of the Corporation (whether by way of merger, consolidation, reorganization or sale of all or substantially all assets or securities) which constitutes all or substantially all of the consolidated assets of the Corporation shall be deemed a Sale of the Corporation.

(p) “Securities Purchase Agreement” shall mean that certain agreement dated as of May 7, 1999 by and among FiberNet Telecom Group, Inc., a Delaware corporation, and the purchasers named therein, as the same may be amended, modified or supplemented from time to time.

(q) “Series C Original Issuance Price” shall mean $1.50 per share of Series C Preferred Stock.

(r) “Series D Preferred Stock” shall mean the Series D Preferred Stock, par value $.001, of the Corporation.

(s) “Series E Preferred Stock” shall mean the Series E Preferred Stock, par value $.001, of the Corporation.

(t) “Series F Preferred Stock” shall mean the Series F Preferred Stock, par value, $.001, of the Corporation.

(u) “Stock” shall mean (i) the presently issued and outstanding shares of Common Stock and Total Preferred Stock and any options or stock subscription warrants exercisable therefor (which options and warrants shall be deemed to be that number of outstanding shares of Stock for which they are exercisable), (ii) any additional shares of capital stock of the Company hereafter issued and outstanding and (iii) any shares of capital stock of the Company into which such shares may be converted or for which they may be exchanged or exercised.

(v) “Stockholders Agreement” shall mean that certain agreement dated as May 7, 1999 by and among FiberNet Telecom Group, Inc., a Delaware corporation, and the stockholders named therein, as the same may be amended, modified or supplemented from time to time.

(w) “Total Preferred Stock” shall mean Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock.


		STATE OF DELAWARE
		SECRETARY OF STATE
		DIVISION OF CORPORATIONS
		FILED 05:01 PM 07/31/2000
		001386217 – 3230910

CERTIFICATE OF DESIGNATION

SERIES D PREFERRED STOCK

FIBERNET HOLDCO, INC.

(a Delaware corporation)

FiberNet Holdco, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST: The name of the corporation (hereinafter the “Corporation”) is FiberNet Holdco, Inc.

SECOND: The Certificate of Designation of the Series D Preferred Stock, $.001 par value, of the Corporation attached hereto as Exhibit A was duly adopted in accordance with Sections 141(f) and 151 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, Michael S. Liss, President of the Corporation, has executed this Certificate of Designation this 31^st day of July, 2000.


		FIBERNET HOLDCO, INC.

		By:		/s/ Michael S. Liss

		Michael S. Liss
		President

Exhibit A

SERIES D PREFERRED STOCK

1. Authorized Shares.

500,000 shares of Series D Preferred Stock, $.001 par value (“Series D Preferred Stock”) of the Corporation have been authorized by the Corporation for issuance

2. Dividends.

(a) The holders of Series D Preferred Stock shall be entitled to receive dividends at the rate of 4% per annum (payable semi-annually) of the Base Amount (as adjusted from time to time as provided below) for each 12-month period (or portion thereof) ending December 31, calculated on the basis of a year of 360 days comprised of twelve 30-day months. The “Base Amount” shall initially be $15.00 per share of the Series D Preferred Stock, in respect of which the dividend is being calculated. Such dividends shall be payable at the option of the Corporation in cash or in lieu of such cash payment by issuance of shares of Series D Preferred Stock to holders of Series D Preferred Stock.

(b) Dividends on a share of Series D Preferred Stock shall accrue and be cumulative from and after the Original Issuance Date up to the first to occur of (i) a Liquidation or (ii) the conversion of such share of Series D Preferred Stock into Common Stock. Dividends shall be payable semi-annually when, as and if declared by the Board of Directors of the Corporation, on June 30 and December 31 of each year (each, a “Dividend Reference Date”), commencing on June 30, 2000. In the event that the full amount of a dividend in respect of any share of Series D Preferred Stock is not paid during any such six-month period or portion thereof, the Base Amount shall be increased by the amount of the dividend not paid, effective as of the immediately succeeding July 1 or January 1, as applicable. To the extent not paid on any such Dividend Reference Date, all dividends which have accrued on each share of Series D Preferred Stock outstanding during the six-month period (or other period in the case of the initial Dividend Reference Date) ending upon such Reference Date shall be accumulated and shall remain accumulated dividends with respect to such share of Series D Preferred Stock until paid to the holder thereof. If any Dividend Reference Date occurs on a day other than a Business Day, any dividends otherwise payable on such Dividend Reference Date shall be paid on the next Business Day. Dividends shall be paid to the holders of record of the Series D Preferred Stock as their names shall appear on the share register of the Corporation on the record date for such dividend.

(c) If the Corporation pays less than the total amount of dividends then accrued on the Total Preferred Stock, such cash payment or issuance of shares of Total Preferred Stock shall be made on a pari passu basis pro rata among the holders of the Total Preferred Stock based upon the aggregate accrued but unpaid dividends on the shares of the Total Preferred Stock held by each such holder. If and when any shares of Total Preferred Stock are issued under this Section 2(c) for payment of accrued dividends, such shares of Total Preferred Stock shall be deemed to be validly issued and outstanding and fully paid and nonassessable.

After payment of the dividends owing to the holders of Total Preferred Stock, such holders shall share ratably (on an as if converted basis) in any dividends thereafter paid on the Common Stock.

(d) In the event the Corporation shall fail to pay in full all accrued dividends on all shares of the Total Preferred Stock, then the Corporation shall not thereafter declare or pay or set apart for payment any dividend or other distribution upon shares of Common Stock, or any other stock ranking on a parity with or junior to the Total Preferred Stock as to dividends.

3. Liquidation.

Upon a Liquidation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of Series D Preferred Stock shall be entitled to receive, pro rata on a pari passu basis with holders of the Series C Preferred Stock, Series E Preferred Stock and Series F Preferred Stock, out of the remaining assets of the Corporation available for distribution to its stockholders, with respect to each share of the Series D Preferred Stock, an amount equal to the Liquidation Amount for each such share of Series D Preferred Stock before any distribution shall be made to the holders of the Common Stock or any other class of capital stock of the Corporation ranking junior to the Total Preferred Stock. If upon any Liquidation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of Total Preferred Stock the full Liquidation Amount for each such series of Total Preferred Stock to which they shall be entitled, the holders of each such series of Total Preferred Stock shall share in any distribution of assets in accordance with such full Liquidation Amount (pro rata on a pari passu basis in accordance with the total Liquidation Amount for each such series of Total Preferred Stock that each such holder would have received had there been such sufficient assets). After the payment of the full Liquidation Amount for each such series of Preferred Stock to the holders of Preferred Stock, such holders of Preferred Stock shall share ratably (on an as if converted basis) with the holders of Common Stock in all remaining assets of the Corporation available for distribution to its stockholders; provided, that in no event will the holders of Preferred Stock receive upon a Liquidation more than the greater of the Liquidation Amount per share or the amount per share such holders would have been entitled to receive if such shares of Preferred Stock had been converted into Common Stock immediately prior to the Liquidation.

4. Voting Rights.

Prior to the conversion of Series D Preferred Stock, the Series D Preferred Stock shall not be entitled to any vote and the holders thereof shall not be entitled to vote as stockholders of the Corporation.

5. Conversion.

(a) Upon the terms set forth in this Section 5, each holder of each share of Series D Preferred Stock shall have the right, at such holder’s option, at any time and from time to time, to convert such share into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the

Series D Preferred Stock by (B) the Conversion Price (as defined below) for the Series D Preferred Stock, as last adjusted and then in effect, by surrender of the certificate representing such share. The conversion price per share at which shares of Common Stock shall be issuable upon conversion of shares of Series D Preferred Stock shall be $1.50 for the Series D Preferred Stock, as adjusted pursuant to Section 5(f) below (the “Conversion Price”). The holder of any shares of Series D Preferred Stock may exercise the conversion right pursuant to this Section 5(a) by delivering to the Corporation the certificate for the shares to be converted, duly endorsed or assigned in blank or to the Corporation (if required by it), accompanied by written notice stating that the bolder elects to convert such shares and stating the name or names (with address) in which the certificate or certificates for the shares of Common Stock are to be issued. Conversion shall be deemed to have been effected on the date when such delivery is made or upon the consummation of a Qualified Public Offering as provided below, if applicable (in each such case, the “Conversion Date”). The Corporation shall give holders of Series D Preferred Stock reasonable prior notice of a Sale of the Corporation, including the price and material terms and conditions thereof, in order to provide such holders a reasonable opportunity to consider whether to convert the Series D Preferred Stock into Common Stock at or prior to such Sale of the Corporation.

(b) Upon written notice of the conversion of shares of Preferred Stock owned or held by the Majority in Interest in accordance with this Section 5 to the remaining holders of Preferred Stock, all shares of Preferred Stock shall be deemed to be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) Liquidation Amount for each such series of Preferred Stock for the share being converted by (B) the applicable Conversion Price, as last adjusted and then in effect.

(c) Upon the terms set forth in this Section 5, each share of Series D Preferred Stock shall automatically be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the Series D Preferred Stock for the share being converted by (B) the applicable Conversion Price, as last adjusted and then in effect, upon the consummation of a Qualified Public Offering.

(d) As promptly as practicable after the conversion of any shares of Preferred Stock into Common Stock under Section 5(a), 5(b) or 5(c) above, the Corporation shall issue and deliver upon the written order of such holder, to the place designated by such holder, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled, and a cash amount in respect of any fractional interest in a share of Common Stock as provided in Section 5(e) below. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the Conversion Date unless the transfer books of the Corporation arc closed on that date, in which event such person shall be deemed to have become a stockholder of record on the next succeeding date on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date, and the rights of the holder of the shares of Preferred Stock so converted shall cease on the Conversion Date. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Preferred Stock surrendered for conversion, the Corporation shall issue and deliver, upon the written order of the holder of the certificate so surrendered for conversion, to the place designated by such holder, at the expense

of the Corporation, a new certificate covering the number of shares of Preferred Stock representing the unconverted portion of the certificate so surrendered.

(e) Upon conversion, the Corporation will not be obligated to issue fractional shares of its Common Stock and shall distribute cash in lieu of such fractional shares. The number of full shares of Common Stock issuable upon conversion of each such the Series D Preferred Stock shall be computed on the basis of the aggregate number of shares of the Series D Preferred Stock to be converted. If fractional shares of Common Stock which would otherwise be issuable upon conversion of any such share are not issued, the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to the product of (i) the price of one share of Common Stock as determined in good faith by the Board and (ii) such fractional interest. The holders of fractional interests shall not be entitled to any rights as stockholders of the Corporation in respect of such fractional interests.

(f) The Conversion Price for each share of Series D Preferred Stock shall be subject to adjustment from time to time as follows:

(i) If the Corporation shall, at any time or from time to time after the Original Issuance Date, issue any shares of Common Stock (or be deemed to have issued shares of Common Stock as provided herein), other than Excluded Stock, without consideration or for a consideration per share less than the applicable Conversion Price, in effect immediately prior to each such issuance, then the Conversion Price, as in effect immediately prior to each such issuance, shall forthwith be lowered to a price equal to the quotient obtained by dividing:

(B) the total number of shares of Common Stock outstanding on a fully-diluted basis immediately after the issuance of such Common Stock.

(ii) For the purposes of any adjustment of the applicable Conversion Price pursuant to clause (i) above, the following provisions shall be applicable:

(B) In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall

be deemed to be the Fair Value Per Share thereof notwithstanding any accounting treatment.

(1) the aggregate maximum number of shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections 5(f)(ii)(A) and 5(f)(ii)(B) above), if any, received by the Corporation upon the issuance of such options or rights plus the minimum purchase price provided in such options or rights for the Common Stock covered thereby;

(4) on the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Conversion Price shall forthwith be readjusted to the Conversion Price as would have been obtained had the adjustment made upon the issuance of such options, rights, securities or options or rights related to such securities been made upon the basis of the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options or rights, upon the conversion or

exchange of such securities, or upon the exercise of the options or rights related to such securities and subsequent conversion or exchange thereof.

(iii) If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, subdivision or split-up, the Conversion Price shall be appropriately decreased so that the number of shares of Common Stock issuable on conversion of each share of Preferred Stock shall be increased in proportion to such increase in outstanding shares.

(iv) If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is decreased by a combination of the outstanding shares of Common Stock, then, following the record date for such combination, the Conversion Price shall be appropriately increased so that the number of shares of Common Stock issuable on conversion of each share of Preferred Stock shall be decreased in proportion to such decrease in outstanding shares.

(v) In the event of any capital reorganization of the Corporation, any reclassification of the stock of the Corporation (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or any consolidation or merger of the Corporation, each share of Series D Preferred Stock shall after such reorganization, reclassification, consolidation, or merger be convertible into the kind and number of shares of stock or other securities or property of the Corporation or of the corporation resulting from such consolidation or surviving such merger to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon conversion of such share of Series D Preferred Stock would have been entitled upon such reorganization, reclassification, consolidation or merger. The provisions of this clause shall similarly apply to successive reorganizations, reclassifications, consolidations or mergers.

(vi) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least .1% in such Conversion Price; provided, that any adjustments not required to be made by virtue of this sentence shall be carried forward and taken into account in any subsequent adjustment. All calculations under Sections 5(f)(i) through 5(f)(v) above shall be made to the nearest one hundredth (1/100) of a cent or the nearest one tenth (1/10) of a share, as the case may be.

conversion by reason of the adjustment required by such event in addition to the shares of capital stock issuable upon such conversion before giving effect to such adjustments, and (B) If applicable, paying to such holder any amount in cash in lieu of a fractional share of capital stock pursuant to Section 5(e) above; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares and such cash.

(viii) Whenever the Conversion Price shall be adjusted as provided in Section 5(f)(i), the Corporation shall make available for inspection during regular business hours, at its principal executive offices or at such other place as may be designated by the Corporation, a statement, signed by its chief executive officer, showing in detail the facts requiring such adjustment and the Conversion Price that shall be in effect after such adjustment. The Corporation shall also cause a copy of such statement to be sent by first class certified mail, return receipt requested and postage prepaid, to each holder of Preferred Stock affected by the adjustment at such holder’s address appearing on the Corporation’s records. Where appropriate, such copy may be given in advance and may be included as part of any notice required to be mailed under the provisions of Section 5(f)(ix) below.

(ix) If the Corporation shall propose to take any action of the types described in clauses (iii), (iv) or (v) of this Section 5(f), the Corporation shall give notice to each holder of shares of Preferred Stock, which notice shall specify the record date, if any, with respect to any such action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon conversion of shares of Preferred Stock. In the case of any action which would require the fixing of a record date, such notice shall be given at least twenty (20) days prior to the date so fixed, and in case of all other action, such notice shall be given at least thirty (30) days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action.

(x) The Corporation shall at all times keep reserved, free from preemptive rights, out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Series D Preferred Stock, sufficient shares of Common Stock to provide for the conversion of all outstanding shares of Series D Preferred Stock.

its shares of Series D Preferred Stock been converted into shares of Common Stock on the date of such event and had such holder thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by it pursuant to this paragraph during such period, subject to the sum of all other adjustments called for during such period under this Section 5 with respect to the rights of such holder of Series D Preferred Stock.

(xii) In the event that the Majority in Interest consents in writing to limit, or waive in its entirety, any anti-dilution adjustment to which the holders of the Series D Preferred Stock would otherwise be entitled hereunder, the Corporation shall not be required to make any adjustment whatsoever with respect to any Series D Preferred Stock in excess of such limit or at all, as the terms of such consent may dictate.

(xiii) The Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 5(f) and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the holders of Series D Preferred Stock against impairment.

(xiv) The computations of all amounts under this Section 5(f) shall be made assuming all other anti-dilution or similar adjustments to be made to the terms of all other securities resulting from the transaction causing an adjustment pursuant to this Section 5(f) have previously been made so as to maintain the relative economic interest of the Series D Preferred Stock vis a vis all other securities issued by the Corporation.

6. Definitions.

As used herein, the following terms shall have the following meanings:

(a) “Affiliate” has the meaning ascribed to it in the Securities Purchase Agreement.

(b) “Board” shall mean the Board of Directors of the Corporation.

Issuance Date in the aggregate. For purpose of this paragraph (b), “Common Stock” shall include shares of Common Stock issuable upon exercise of warrants, options and other rights to acquire Common Stock outstanding on the Original Issuance Date, whether or not at the time exercised or exercisable.

(d) “Common Stock” shall mean the Common Stock, par value $.001, of the Corporation.

(f) “Excluded Stock” shall mean (A) up to 6,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees, consultants, vendors or directors of the Corporation or its subsidiaries, (B) shares of Common Stock issued upon conversion of shares of Total Preferred Stock, (C) shares of Common Stock issued upon exercise of any existing warrants, notes or other instruments convertible or exercisable for Common Stock as of the date hereof, and (D) Common Stock or other equity securities issued as part of a strategic arrangement or alliance by the Corporation or its Subsidiaries to building licensors, landlords, carriers, joint venture partners, vendors, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of the Corporation, including in the case of (A), (B), (C) and (D), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable to such options, warrants or shares, as the case may be.

(g) “Fair Value Per Share” shall mean the fair value of each share of Stock as determined in good faith by the Board.

(i) “Liquidation Amount” shall mean the Original Issuance Price as to each share of Preferred Stock plus any accrued but unpaid dividends.

(j) “Majority in Interest” shall have the meaning ascribed to such term in the Securities Purchase Agreement.

(k) “Original Issuance Date” means the date of original issuance of the first share of the Series D Preferred Stock.

(l) “Original Issuance Price” shall mean $15.00 per share for the Series D Preferred Stock, $15.00 per share for the Series E Preferred Stock and $30.00 per share for the Series F Preferred Stock.

(m) “Preferred Stock” shall mean the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock.

(n) “Qualified Public Offering” shall have the meaning ascribed to such term in the Stockholders Agreement.

(o) “Sale of the Corporation” shall mean (i) the sale of all or substantially all of the Corporation’s assets to a Person who is not an Affiliate of the Corporation, (ii) the sale or transfer of the outstanding capital stock of the Corporation to one or more Persons who are not Affiliates of the Corporation, or (iii) the merger or consolidation of the Corporation with or into another Person who is not an Affiliate of the Corporation, in each case in clauses (ii) and (iii) above under circumstances in which the holders of a majority in voting power of the outstanding capital stock of the Corporation, immediately prior to such transaction, own less than a majority in voting power of the outstanding capital stock of the Corporation or the surviving or resulting corporation or acquirer, as the case may be, immediately following such transaction, A sale (or multiple related sales) of one or more subsidiaries of the Corporation (whether by way of merger, consolidation, reorganization or sale of all or substantially all assets or securities) which constitutes all or substantially all of the consolidated assets of the Corporation shall be deemed a Sale of the Corporation.

(p) “Securities Purchase Agreement” shall mean that certain agreement dated as of May 7, 1999 by and among FiberNet Telecom Group, Inc. and the purchasers named therein, as the same may be amended, modified or supplemented from time to time.

(q) “Series C Preferred Stock” shall mean the Series C Preferred Stock, par value $.001, of the Corporation.

(r) “Series E Preferred Stock” shall mean the Series E Preferred Stock, par value $.001, of the Corporation.

(s) “Series F Preferred Stock” shall mean the Series F Preferred Stock, par value $.001, of the Corporation.

(u) “Stockholders Agreement” shall mean that certain agreement dated as of May 7, 1999 by and among FiberNet Telecom Group, Inc. and the stockholders named therein, as the same may be amended, modified or supplemented from time to time.

(v) “Total Preferred Stock” shall mean the Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, and Series F Preferred Stock.


		STATE OF DELAWARE
		SECRETARY OF STATE
		DIVISION OF CORPORATIONS
		FILED 05:02 PM 07/31/2000
		001386219 – 3230910

CERTIFICATE OF DESIGNATION

SERIES E PREFERRED STOCK

FIBERNET HOLDCO, INC.

(a Delaware corporation)

FiberNet Holdco, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST: The name of the corporation (hereinafter the “Corporation”) is FiberNet Holdco, Inc.

SECOND: The Certificate of Designation of the Series E Preferred Stock, $.001 par value, of the Corporation attached hereto as Exhibit A was duly adopted in accordance with Sections 141(f) and 151 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, Michael S. Liss, President of the Corporation, has executed this Certificate of Designation this ___ day of July, 2000.


		FIBERNET HOLDCO, INC.

		By:		/s/ Michael S. Liss

		Michael S. Liss
		President

Exhibit A

SERIES E PREFERRED STOCK

1. Authorized Shares.

750,000 shares of Series E Preferred Stock, $.001 par value (“Series E Preferred Stock”) of the Corporation have been authorized by the Corporation for issuance.

2. Dividends.

(a) The holders of Series E Preferred Stock shall be entitled to receive dividends at the rate of 8% per annum (payable semi-annually) of the Base Amount (as adjusted from time to time as provided below) for each 12-month period (or portion thereof) ending December 31, calculated on the basis of a year of 360 days comprised of twelve 30-day months. The “Base Amount” shall initially be $15.00 per share of the Series E Preferred Stock, in respect of which the dividend is being calculated. Such dividends shall be payable at the option of the Corporation in cash or in lieu of such cash payment by issuance of shares of Series E Preferred Stock to holders of Series E Preferred Stock.

(b) Dividends on a share of Series E Preferred Stock shall accrue and be cumulative from and after the Original Issuance Date up to the first to occur of (i) a Liquidation or (ii) the conversion of such share of Series E Preferred Stock into Common Stock. Dividends shall be payable semi-annually when, as and if declared by the Board of Directors of the Corporation, on June 30 and December 31 of each year (each, a “Dividend Reference Date”), commencing on June 30, 2000. In the event that the full amount of a dividend in respect of any share of Series E Preferred Stock is not paid during any such six-month period or portion thereof, the Base Amount shall be increased by the amount of the dividend not paid, effective as of the immediately succeeding July 1 or January 1, as applicable. To the extent not paid on any such Dividend Reference Date, all dividends which have accrued on each share of Series E Preferred Stock outstanding during the six-month period (or other period in the case of the initial Dividend Reference Date) ending upon such Reference Date shall be accumulated and shall remain accumulated dividends with respect to such share of Series E Preferred Stock until paid to the holder thereof. If any Dividend Reference Date occurs on a day other than a Business Day, any dividends otherwise payable on such Dividend Reference Date shall be paid on the next Business Day. Dividends shall be paid to the holders of record of the Series E Preferred Stock as their names shall appear on the share register of the Corporation on the record date for such dividend.

(c) If the Corporation pays less than the total amount of dividends then accrued on the Total Preferred Stock, such cash payment or issuance of shares of Total Preferred Stock shall be made on a pari passu basis pro rata among the holders of the Total Preferred Stock based upon the aggregate accrued but unpaid dividends on the shares of the Total Preferred Stock held by each such holder. If and when any shares of Total Preferred Stock are issued under this Section 2(c) for payment of accrued dividends, such shares of Total Preferred Stock shall be deemed to be validly issued and outstanding and fully paid and nonassessable. After payment of all dividends owing to the holders of total Preferred Stock, such holders shall

share ratably (on an as if converted basis) in any dividends thereafter paid on the Common Stock.

(d) In the event the Corporation shall fail to pay in full all accrued dividends on all shares of the Total Preferred Stock, then the Corporation shall not thereafter declare or pay or set apart for payment any dividend or other distribution upon shares of Common Stock, or any other stock ranking on a parity with or junior to the Total Preferred Stock as to dividends.

3. Liquidation.

Upon a Liquidation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of Series E Preferred Stock shall be entitled to receive, pro rata on a pari passu basis with holders of the Series C Preferred Stock, Series D Preferred Stock and Series F Preferred Stock, out of the remaining assets of the Corporation available for distribution to its stockholders, with respect to each share of the Series E Preferred Stock, an amount equal to the Liquidation Amount for each such share of Series E Preferred Stock before any distribution shall be made to the holders of the Common Stock or any other class of capital stock of the Corporation ranking junior to the Total Preferred Stock. If upon any Liquidation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of Total Preferred Stock the full Liquidation Amount for each such series of Total Preferred Stock to which they shall be entitled, the holders of each such series of Total Preferred Stock shall share in any distribution of assets in accordance with such full Liquidation Amount (pro rata on a pari passu basis in accordance with the total Liquidation Amount for each such series of Total Preferred Stock that each such holder would have received had there been such sufficient assets). After the payment of the full Liquidation Amount for each such series of Preferred Stock to the holders of Preferred Stock, such holders of Preferred Stock shall share ratably (on an as if converted basis) with the holders of Common Stock in all remaining assets of the Corporation available for distribution to its stockholders; provided, that in no event will the holders of Preferred Stock receive upon a Liquidation more than the greater of the Liquidation Amount per share or the amount per share such holders would have been entitled to receive if such shares of Preferred Stock had been converted into Common Stock immediately prior to the Liquidation.

4. Voting Rights.

Prior to the conversion of Series E Preferred Stock, the Series E Preferred Stock shall not be entitled to any vote and the holders thereof shall not be entitled to vote as stockholders of the Corporation.

5. Conversion.

(a) Upon the terms set forth in this Section 5, each holder of each share of Series E Preferred Stock shall have the right, at such holder’s option, at any time and from time to time, to convert such share into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the Series E Preferred Stock by (B) the Conversion Price (as defined below) for the Series E

Preferred Stock, as last adjusted and then in effect, by surrender of the certificate representing such share. The conversion price per share at which shares of Common Stock shall be issuable upon conversion of shares of Series E Preferred Stock shall be $1.50 for the Series E Preferred Stock, as adjusted pursuant to Section 5(f) below (the “Conversion Price”). The holder of any shares of Series E Preferred Stock may exercise the conversion right pursuant to this Section 5(a) by delivering to the Corporation the certificate for the shares to be converted, duly endorsed or assigned in blank or to the Corporation (if required by it), accompanied by written notice stating that the holder elects to convert such shares and stating the name or names (with address) in which the certificate or certificates for the shares of Common Stock are to be issued. Conversion shall be deemed to have been effected on the date when such delivery is made or upon the consummation of a Qualified Public Offering as provided below, if applicable (in each such case, the “Conversion Date”). The Corporation shall give holders of Series E Preferred Stock reasonable prior notice of a Sale of the Corporation, including the price and material terms and conditions thereof, in order to provide such holders a reasonable opportunity to consider whether to convert the Series E Preferred Stock into Common Stock at or prior to such Sale of the Corporation.

(b) Upon written notice of the conversion of shares of Preferred Stock owned or held by the Majority in Interest in accordance with this Section 5 to the remaining holders of Preferred Stock, all shares of Preferred Stock shell be deemed to be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) Liquidation Amount for each such series of Preferred Stock for the share being converted by (B) the applicable Conversion Price, as last adjusted and then in effect.

(c) Upon the terms set forth in this Section 5, each share of Series E Preferred Stock shall automatically be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the Series E Preferred Stock for the share being converted by (B) the applicable Conversion Price, as last adjusted and then in effect, upon the consummation of a Qualified Public Offering.

(d) As promptly as practicable after the conversion of any shares of Preferred Stock into Common Stock under Section 5(a), 5(b) or 5(c) above, the Corporation shall issue and deliver upon the written order of such holder, to the place designated by such holder, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled, and a cash amount in respect of any fractional interest in a share of Common Stock as provided in Section 5(e) below. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the Conversion Date unless the transfer books of the Corporation are closed on that date, in which event such person shall be deemed to have become a stockholder of record on the next succeeding date on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date, and the rights of the holder of the shares of Preferred Stock so converted shall cease on the Conversion Date. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Preferred Stock surrendered for conversion, the Corporation shall issue and deliver, upon the written order of the holder of the certificate so surrendered for conversion, to the place designated by such holder, at the expense of the Corporation, a new certificate covering the number of shares of Preferred Stock representing the unconverted portion of the certificate so surrendered.

(e) Upon conversion, the Corporation will not be obligated to issue fractional shares of its Common Stock and shall distribute cash in lieu of such fractional shares. The number of full shares of Common Stock issuable upon conversion of each such the Series E Preferred Stock shall be computed on the basis of the aggregate number of shares of the Series E Preferred Stock to be converted. If fractional shares of Common Stock which would otherwise be issuable upon conversion of any such share are not issued, the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to the product of (i) the price of one share of Common Stock as determined in good faith by the Board and (ii) such fractional interest. The holders of fractional interests shall not be entitled to any rights as stockholders of the Corporation in respect of such fractional interests.

(f) The Conversion Price for each share of Series E Preferred Stock shall be subject to adjustment from time to time as follows:

(B) the total number of shares of Common Stock outstanding on a fully-diluted basis immediately after the issuance of such Common Stock.

(ii) For the purposes of any adjustment of the applicable Conversion Price pursuant to clause (i) above, the following provisions shall be applicable:

(C) In the case of the issuance of option to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities except for options to acquire Excluded Stack:

(4) on the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Conversion Price shall forthwith be readjusted to the Conversion Price as would have been obtained had the adjustment made upon the issuance of such options, rights, securities or options or rights related to such securities been made upon the basis of the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities, or upon the exercise of the options or rights related to such securities and subsequent conversion or exchange thereof.

(iii) If, at any time after the Original Issuance Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, subdivision or split-up, the Conversion Price shall be appropriately decreased so that the number of shares of Common Stock issuable on conversion of each share of Preferred Stock shall be increased in proportion to such increase in outstanding shares.

(v) In the event of any capital reorganization of the Corporation, any reclassification of the stock of the Corporation (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or any consolidation or merger of the Corporation, each share of Series E Preferred Stock shall after such reorganization, reclassification, consolidation, or merger be convertible into the kind and number of shares of stock or other securities or property of the Corporation or of the corporation resulting from such consolidation or surviving such merger to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon conversion of such share of Series E Preferred Stock would have been entitled upon such reorganization, reclassification, consolidation or merger. The provisions of this clause shall similarly apply to successive reorganizations, reclassifications, consolidations or mergers.

(vi) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least .1% in such Conversion Price; provided, that any adjustments not required to be made by virtue of this sentence shall be carried forward and taken into account in any subsequent adjustment. All calculations under Sections 5(f)(i) through 5(f)(v) above shall be made to the nearest one hundredth (1/100) of a cent or the nearest one tenth (1/10) of a share, as the case may be.

(vii) In any case in which the provisions of this Section 5(f) shall require that an adjustment shall become effective immediately after a record date of an event, the Corporation may defer until the occurrence of such event (A) issuing to the holder of any share of Series E Preferred Stock converted after such record date and before the occurrence of such event the shares of capital stock issuable upon such conversion by reason of the adjustment required by such event in addition to the shares of capital stock issuable upon such conversion before giving effect to such adjustments, and (B) if applicable paying to such holder any amount in cash in lieu of a fractional share of

capital stock pursuant to Section 5(e) above; provided, however that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares and such cash.

(x) The Corporation shall at all times keep reserved, free from preemptive rights, out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Series E Preferred Stock, sufficient shares of Common Stock to provide for the conversion of all outstanding shares of Series E Preferred Stock.

(xi) Without duplication of any other adjustment provided for in this Section 5(f), at any time the Corporation makes or fixes a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in securities of the Corporation other than shares of Common Stock, provision shall be made so that each holder of Series E Preferred Stock shall receive upon conversion thereof, in addition to the shares of Common Stock receivable thereupon, the number of securities of the Corporation which it would have received had its shares of Series E Preferred Stock been converted into shares of Common Stock on the date of such event and had such holder thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by it pursuant

to this paragraph during such period, subject to the sum of all other adjustments called for during such period under this Section 5 with respect to the rights of such holder of Series E Preferred Stock.

(xii) In the event that the Majority in Interest consents in writing to limit, or waive in its entirety, any anti-dilution adjustment to which the holders of the Series E Preferred Stock would otherwise be entitled hereunder, the Corporation shall not be required to make any adjustment whatsoever with respect to any Series E Preferred Stock in excess of such limit or at all, as the terms of such consent may dictate.

(xiii) The Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 5(f) and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the holders of Series E Preferred Stock against impairment.

(xiv) The computations of all amounts under this Section 5(f) shall be made assuming all other anti-dilution or similar adjustments to be made to the terms of all other securities resulting from the transaction causing an adjustment pursuant to this Section 5(f) have previously been made so as to maintain the relative economic interest of the Series E Preferred Stock vis a vis all other securities issued by the Corporation.

6. Definitions.

As used herein, the following terms shall have the following meanings:

(a) “Affiliate” has the meaning ascribed to it in the Securities Purchase Agreement.

(b) “Board” shall mean the Board of Directors of the Corporation.

(c) “Change of Control of the Corporation” shall mean any transaction or any event as a result of which (i) any one or more Persons acquires or for the first time controls or is able to vote (directly or through nominees or beneficial ownership) after the Original Issuance Date 51% or more of any class of stock of the corporation outstanding at the time having power ordinarily to vote for directors of the Corporation or (ii) the control of more than 51% of the number of shares of Common Stock held by Persons on the Original Issuance Date has been transferred (excluding transfers by and among such Persons) since the Original Issuance Date in the aggregate. For purpose of this paragraph (c), “Common Stock” shall include shares of Common Stock issuable upon exercise of warrants, options and other rights to

acquire Common Stock outstanding on the Original Issuance Date, whether or not at the time exercised or exercisable.

(d) “Common Stock” shall mean the Common Stock, par value $.001, of the Corporation.

(f) “Excluded Stock” shall mean (A) up to 6,000,000 shares (as adjusted equitably for stock dividends, stock splits, combinations, etc.) of Common Stock issuable upon exercise of stock options granted to officers, employees, consultants, vendors or directors of the Corporation or its subsidiaries, (B) shares of Common Stock issued upon conversion of shares of Total Preferred Stock, (C) shares of Common Stock issued upon exercise of any existing warrants, notes or other instruments convertible or exercisable for Common Stock as of the date hereof, and (D) Common Stock or other equity securities issued as part of a strategic arrangement or alliance by the Corporation or its Subsidiaries to building licensors, landlords, carriers, joint venture partners, vendors, lessors or lenders, and securities or instruments issued in connection with acquisitions, as each such transaction is approved by the Board of the Corporation, including in the case of (A), (B), (C) and (D), any additional shares of Common Stock as may be issued by virtue of antidilution provisions, if any, applicable to such options, warrants or shares, as the case may be.

(g) “Fair Value Per Share” shall mean the fair value of each share of Stock, as determined in good faith by the Board.

(i) “Liquidation Amount” shall mean the Original Issuance Price as to each share of Preferred Stock plus any accrued but unpaid dividends.

(j) “Majority in Interest” shall have the meaning ascribed to such term in the Securities Purchase Agreement.

(k) “Original Issuance Date” means the date of original issuance of the first share of the Series E Preferred Stock.

(m) “Preferred Stock” shall mean the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock.

(n) “Qualified Public Offering” shall have the meaning ascribed to such term in the Stockholders Agreement.

(q) “Series C Preferred Stock” shall mean the Series C Preferred Stock, par value $.001, of the Corporation.

(r) “Series D Preferred Stock” shall mean the Series D Preferred Stock, par value $.001, of the Corporation.

(s) “Series F Preferred Stock” shall mean the Series F Preferred Stock, par value, $.001, of the Corporation.

(t) “Stock” shall mean (i) the presently issued and outstanding shares of Common Stock and Total Preferred Stock and any options or stock subscription warrants exercisable therefor (which options and warrants shall be deemed to be that number of outstanding shares of Stock for which they arc exercisable), (ii) any additional shares of capital stock of the Corporation hereafter issued and outstanding and (iii) any shares of capital stock of the Corporation into which such shares maybe converted or for which they may be exchanged or exercised.

(v) “Total Preferred Stock” shall mean the Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, and Series F Preferred Stock.


		STATE OF DELAWARE
		SECRETARY OF STATE
		DIVISION OF CORPORATIONS
		FILED 05:03 PM 07/31/2000
		001386222 – 3230910

CERTIFICATE OF DESIGNATION

SERIES F PREFERRED STOCK

FIBERNET HOLDCO, INC.

(a Delaware corporation)

FiberNet Holdco, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST The name of the corporation (hereinafter the “Corporation”) is FiberNet Holdco, Inc.

SECOND: The Certificate of Designation of the Series F Preferred Stock, $.001 par value, of the Corporation attached hereto as Exhibit A was duly adopted in accordance with Sections 141(f) and 151 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, Michael S. Liss, President of the Corporation, has executed this Certificate of Designation this 31^st day of July, 2000.


		FIBERNET HOLDCO, INC.

		By:		/s/ Michael S. Liss

		Michael S. Liss
		President

Exhibit A

SERIES F PREFERRED STOCK

1. Authorized Shares.

500,000 shares of Series F Preferred Stock, $.001 par value (“Series F Preferred Stock”) of the Corporation have been authorized by the Corporation for issuance.

2. Dividends.

(a) The holders of Series F Preferred Stock shall be entitled to receive dividends at the rate of 8% per annum (payable semi-annually) of the Base Amount (as adjusted from time to time as provided below) for each 12-month period (or portion thereof) ending December 31, calculated on the basis of a year of 360 days comprised of twelve 30-day months. The “Base Amount” shall initially be $30.00 per share of the Series F Preferred Stock, in respect of which the dividend is being calculated. Such dividends shall be payable at the option of the Corporation in cash or in lieu of such cash payment by issuance of shares of Series F Preferred Stock to holders of Series F Preferred Stock.

(b) Dividends on a share of Series F Preferred Stock shall accrue and be cumulative from and after the Original Issuance Date up to the first to occur of (i) a Liquidation or (ii) the conversion of such share of Series F Preferred Stock into Common Stock. Dividends shall be payable semi-annually when, as and if declared by the Board of Directors of the Corporation, on June 30 and December 31 of each year (each, a “Dividend Reference Date”), commencing on June 30, 2000. In the event that the full amount of a dividend in respect of any share of Series F Preferred Stock is not paid during any such six-month period or portion thereof, the Base Amount shall be increased by the amount of the dividend not paid, effective as of the immediately succeeding July 1 or January 1, as applicable. To the extent not paid on any such Dividend Reference Date, all dividends which have accrued on each share of Series F Preferred Stock outstanding during the six-month period (or other period in the case of the initial Dividend Reference Date) ending upon such Reference Date shall be accumulated and shall remain accumulated dividends with respect to such share of Series F Preferred Stock until paid to the holder thereof. If any Dividend Reference Date occurs on a day other than a Business Day, any dividends otherwise payable on such Dividend Reference Date shall be paid on the next Business Day. Dividends shall be paid to the holders of record of the Series F Preferred Stock as their names shall appear on the share register of the Corporation on the record date for such dividend.

(c) If the Corporation pays less than the total amount of dividends then accrued on the Total Preferred Stock, such cash payment or issuance of shares of Total Preferred Stock shall be made on a pari passu basis pro rata among the holders of the Total Preferred Stock based upon the aggregate accrued but unpaid dividends on the shares of the Total Preferred Stock held by each such holder. If and when any shares of Total Preferred Stock are issued under this Section l(c) for payment of accrued dividends, such shares of Total Preferred Stock shall be deemed to be validly issued and outstanding and fully paid and nonassessable.

After payment of all dividends owing to the holders of Total Preferred Stock, such holders shall share ratably (on an as if converted basis) in any dividends thereafter paid on the Common Stock.

(d) In the event the Corporation shall fail to pay in full all accrued dividends on all shares of the Total Preferred Stock, then the Corporation shall not thereafter declare or pay or set apart for payment any dividend or other distribution upon shares of Common Stock, or any other stock ranking on a parity with or junior to the Total Preferred Stock as to dividends.

3. Liquidation.

Upon a Liquidation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of Series F Preferred Stock shall be entitled to receive, pro rata on a pari passu basis with holders of the Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock, out of the remaining assets of the Corporation available for distribution to its stockholders, with respect to each share of the Series F Preferred Stock, an amount equal to the Liquidation Amount for each such share of Series F Preferred Stock before any distribution shall be made to the holders of the Common Stock or any other class of capital stock of the Corporation ranking junior to the Total Preferred Stock. If upon any Liquidation the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of Total Preferred Stock the full Liquidation Amount for each such series of Total Preferred Stock to which they shall be entitled, the holders of each such series of Total Preferred Stock shall share in any distribution of assets in accordance with such full Liquidation Amount (pro rata on a pari passu basis in accordance with the total Liquidation Amount for each such series of Total Preferred Stock that each such holder would have received had there been such sufficient assets). After the payment of the full Liquidation Amount for each such series of Preferred Stock to the holders of Preferred Stock, such holders of Preferred Stock shall share ratably (on an as if converted basis) with the holders of Common Stock in all remaining assets of the Corporation available for distribution to its stockholders; provided, that in no event will the holders of Preferred Stock receive upon a Liquidation more than the greater of the Liquidation Amount per share or the amount per share such holders would have been entitled to receive if such shares of Preferred Stock had been converted into Common Stock immediately prior to the Liquidation.

4. Voting Rights.

Prior to the conversion of Series F Preferred Stock, the Series F Preferred Stock shall not be entitled to any vote and the holders thereof shall not be entitled to vote as stockholders of the Corporation.

5. Conversion.

(a) Upon the terms set forth in this Section 5, each holder of each share of Series F Preferred Stock shall have the right, at such holder’s option, at any time and from time to time, to convert such share into the number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the Series F Preferred Stock by (B) the Conversion Price (as defined below) for the Series F

Preferred Stock, as last adjusted and then in effect, by surrender of the certificate representing such share. The conversion price per share at which shares of Common Stock shall be issuable upon conversion of shares of Series F Preferred Stock shall be $3.00 for the Series F Preferred Stock, as adjusted pursuant to Section 5(f) below (the “Conversion Price”). The holder of any shares of Series F Preferred Stock may exercise the conversion right pursuant to this Section 5(a) by delivering to the Corporation the certificate for the shares to be converted, duly endorsed or assigned in blank or to the Corporation (if required by it), accompanied by written notice stating that the holder elects to convert such shares and stating the name or names (with address) in which the certificate or certificates for the shares of Common Stock are to be issued. Conversion shall be deemed to have been effected on the date when such delivery is made or upon the consummation of a Qualified Public Offering as provided below, if applicable (in each such case, the “Conversion Date”). The Corporation shall give holders of Series F Preferred Stock reasonable prior notice of a Sale of the Corporation, including the price and material terms and conditions thereof, in other to provide such holders a reasonable opportunity to consider whether to convert the Series F Preferred Stock into Common Stock at or prior to such Sale of the Corporation.

(c) Upon the terms set forth in this Section 5, each share of Series F Preferred Stock shall automatically be converted to that number of fully paid and nonassessable shares of Common Stock equal to the quotient obtained by dividing (A) the Liquidation Amount for the Series F Preferred Stock for the share being converted by (B) the applicable Conversion Price, as last adjusted and then in effect, upon the consummation of a Qualified Public Offering.

(d) As promptly as practicable after the conversion of any shares of Preferred Stock into Common Stock under Section 5(a), 5(b) or
5(c) above, the Corporation shall issue and deliver upon the written order of such holder, to the place designated by such holder, a certificate or certificates for the number of full shares of Common Stock to which such holder is entitled, and a cash amount in respect of any fractional interest in a share of Common Stock as provided in Section 5(e) below. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the Conversion Date unless the transfer books of the Corporation are closed on that date, in which event such person shall be deemed to have become a stockholder of record on the next succeeding date on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date, and the rights of the holder of the shares of Preferred Stock so converted shall cease on the Conversion Date. Upon conversion of only a portion of the number of shares covered by a certificate representing shares of Preferred Stock surrendered for conversion, the Corporation shall issue and deliver, upon the written order of the holder of the certificate so surrendered for conversion, to the place designated by such holder, at the expense of the Corporation, a new certificate covering the number of shares of Preferred Stock representing the unconverted portion of the certificate so surrendered.

(e) Upon conversion, the Corporation will not be obligated to issue fractional shares of its Common Stock and shall distribute cash in lieu of such fractional shares. The number of full shares of Common Stock issuable upon conversion of each such the Series F Preferred Stock shall be computed on the basis of the aggregate number of shares of the Series F Preferred Stock to be converted. If fractional shares of Common Stock which would otherwise be issuable upon conversion of any such share are not issued, the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to the product of (i) the price of one share of Common Stock as determined in good faith by the Board and (ii) such fractional interest. The holders of fractional interests shall not be entitled to any rights as stockholders of the Corporation in respect of such fractional interests.

(f) The Conversion Price for each share of Series F Preferred Stock shall be subject to adjustment from time to time as follows:

(i) If the Corporation shall, at any time or from time to time after the Original Issuance Date issue any shares of Common Stock (or be deemed to have issued shares of Common Stock as provided herein), other than Excluded Stock, without consideration or for a consideration per share less than the applicable Conversion Price, then (x) with respect to any such issuance prior to the earlier of (1) March 28, 2001 or (2) any public and/or private offering or offerings of Common Stock or debt and/or equity securities that are convertible, exchangeable or exercisable for Common Stock that in the aggregate exceeds $30,000,000 (but excluding any such issuance in which the $30,000,000 threshold is first met) (the first to occur of (1) or (2) a “Capital Event”), the applicable Conversion Price as in effect immediately prior to each such issuance shall forthwith be lowered to a price equal to the issuance, conversion, exchange or exercise price, as applicable, of any such securities so issued and (y) with respect to any issuance after the occurrence of a Capital Event, the applicable Conversion Price, as in effect immediately prior to each such issuance, shall forthwith be lowered in accordance with Section 5(f)(ii) below.

(ii) If the Corporation shall, at any time or from time to time after the Original Issuance Date, issue any shares of Common Stock (or be deemed to have issued shares of Common Stock as provided herein), other than Excluded Stock, without consideration or for a consideration per share less than the applicable Conversion Price, and in accordance with the provisions in Section 5(f)(i) above, then the applicable Conversion Price of each such series of Preferred Stock, as in effect immediately prior to each such issuance, shall forthwith be lowered to a price equal to the quotient obtained by dividing:

(B) the total number of shares of Common Stock outstanding on a fully-diluted basis immediately after the issuance of such Common Stock.

(iii) For the purposes of any adjustment of the applicable Conversion Price pursuant to clauses (i) and (ii) above, the following provisions shall be applicable:

(C) In this case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities except for options to acquire Excluded Stock:

(1) the aggregate maximum number of shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections 5(f)(iii) (A) and 5(f)(iii)(B) above), if any, received by the Corporation upon the issuance of such options or rights plus the minimum purchase price provided in such options or rights for the Common Stock covered thereby;

(vi) In the event of any capital reorganization of the Corporation, any reclassification of the stock of the Corporation (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), or any consolidation or merger of the Corporation, each share of Series F Preferred Stock shall after such reorganization, reclassification, consolidation, or merger be convertible into the kind and number of shares of stock or other securities or property of the Corporation or of the corporation resulting from such consolidation or surviving such merger to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon conversion of such share of Series F Preferred Stock would have been entitled upon such

reorganization, reclassification, consolidation or merger. The provisions of this clause shall similarly apply to successive reorganizations, reclassifications, consolidations or mergers.

(vii) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least .1% in such Conversion Price; provided, that any adjustments not required to be made by virtue of this sentence shall be carried forward and taken into account in any subsequent adjustments. All calculations under Sections 5(f)(i) through 5(1)(vi) above shall be made to the nearest one hundredth (1/100) of a cent or the nearest one tenth (1/10) of a share, as the case may be.

(viii) In any case in which the provisions of this Section 5(f) shall require that an adjustment shall become effective immediately after a record date of an event, the Corporation may defer until the occurrence of such event (A) issuing to the holder of any share of Series F Preferred Stock converted after such record date and before the occurrence of such event the shares of capital stock issuable upon such conversion by reason of the adjustment required by such event in addition to the shares of capital stock issuable upon such conversion before giving effect to such adjustments, and (B) if applicable, paying to such holder any amount in cash in lieu of a fractional share of capital stock pursuant to Section 5(e) above; provided, however, that the Corporation shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive such additional shares and such cash.

(ix) Whenever the Conversion Price shall be adjusted as provided in Sections 5(f)(i) and 5(f)(ii), the Corporation shall make available for inspection during regular business hours, at its principal executive offices or at such other place as may be designated by the Corporation, a statement, signed by its chief executive officer, showing in detail the facts requiring such adjustment and the Conversion Price that shall be in effect after such adjustment. The Corporation shall also cause a copy of such statement to be sent by first class certified mail, return receipt requested and postage prepaid, to each holder of Preferred Stock affected by the adjustment at such holder’s address appearing on the Corporation’s records. Where appropriate, such copy may be given in advance and may be included as part of any notice required to be mailed under the provisions of Section 5(f)(x) below.

(x) If the Corporation shall propose to take any action of the types described in clauses (iv), (v) or (vi) of this Section 5(f), the Corporation shall give notice to each holder of shares of Preferred Stock, which notice shall specify the record date, if any, with respect to any such action and the date on which such action is to take place. Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon conversion of shares of Preferred Stock. In the case of any action which would require the fixing of a record date, such notice shall be given at least twenty (20) days prior to the date so fixed, and in case of all

other action, such notice shall be given at least thirty (30) days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action.

(xi) The Corporation shall at all times keep reserved, free from preemptive rights, out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Series F Preferred Stock, sufficient shares of Common Stock to provide for the conversion of all outstanding shares of Series F Preferred Stock.

(xii) Without duplication of any other adjustment provided for in this Section 5(f), at any time the Corporation makes or fixes a record date for the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in securities of the Corporation other than shares of Common Stock, provision shall be made so that each holder of Series F Preferred Stock shall receive upon conversion thereof, in addition to the shares of Common Stock receivable thereupon, the number of securities of the Corporation which it would have received had its shares of Series F Preferred Stock been converted into shares of Common Stock on the date of such event and had such holder thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by it pursuant to this paragraph during such period, subject to the sum of all other adjustments called for during such period under this Section 5 with respect to the rights of such holder of Series F Preferred Stock.

(xiii) In the event that the Majority in Interest consents in writing to limit, or waive in its entirety, any anti-dilution adjustment to which the holders of the Series F Preferred Stock would otherwise be entitled hereunder, the Corporation shall not be required to make any adjustment whatsoever with respect to any Series F Preferred Stock in excess of such limit or at all, as the terms of such consent may dictate.

(xiv) The Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 5(f) and in the taking of all such action as may be necessary or appropriate in order to protect the exercise rights of the holders of Series F Preferred Stock against impairment.

(xv) The computations of all amounts under this Section 5(f) shall be made assuming all other anti-dilution or similar adjustments to be made to the terms of all other securities resulting from the transaction causing an adjustment pursuant to this Section 5(f) have previously been made so as to maintain the relative economic interest of the Series F Preferred Stock vis a vis other securities issued by the Corporation.

(xvi) The Corporation shall take or cause to be taken such steps as shall be necessary to ensure that the par value per share of Common Stock is at all times less than or equal to the Conversion Price.