HomeMy WebLinkAboutContract 58199-CA1CITY OF FORT WORTH ASSIGNMENT
CSC No. 58199-CAl
For value received Work Shield, LLC ("Assignor"), hereby assigns to Work Shield, Inc.
("Assignee"), all of its right, title and interest in and to any and all sums of money now due or to
become due from the City of Fort Worth to Assignor under CSCO 58199 (the "Contracts") and
Assignee agrees to assume and perform all duties and obligations required by Assignor under the
terms of the Contracts.
This Assignment constitutes the entire agreement between Assignor and Assignee with
respect to the subject matter hereof. No modification of any provision of this Assignment shall
be effective unless in writing and signed by Assignor and Assignee. This Assignment shall inure
to the benefit of and be binding upon Assignor and Assignee and their respective successors and
assigns. This Assignment shall be governed by the terms of the original Contracts between
Assignor and various other entities and the City of Fort Worth and the laws of the State of Texas,
without application of principles of conflicts of law.
This Assignment may be executed in one or more counterparts each of which shall be
deemed an original but all of which together shall constitute one and the same instrument.
Signed signature pages may be transmitted by facsimile or e-mail, and any such signature shall
have the same legal effect as an original.
Dated the 11th day of September 2024.
Assignment
Work
(Assig
By:
Print:
Title: 1e ega 1cer
Work Shield, Inc.
(Assig
By: Print:
Title:
Page 1 of3
NOTARY ACKNOWLEDGEMENT
On the llth day of September 2024, personally appeared Travis O. Foster, who
acknowledged to me that he is the Chief Legal Officer of Work Shield, LLC ("Assignor"), and
that (s)he executed this document for the purposes and consideration contained herein.
Work
By:
Print:
Title:
SUBSCRIBED TO before me on this l lth day of September 2024.
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: ;��`� ""�;:, LINI3SAY COKEft � � � � � '
=a, �'.;�: My Notary ID # 132232948 otary Public �n and for the State of
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NOTARY ACKNOWLEDGEMENT
On the llt'' day of September 2024, personally appeared Travis O. Foster, who
acknowledged to me that (s)he is the Chief Legal Officer of Work Shield, Inc. ("Assignee"), and
that he executed this document for the purposes and consideration contained herein.
Work ���elc7, nc. /i'" �'.�.,—_*j
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By: � .
Print:'`,Travi�`s O. Foster ,.----��` K _
Title: Chief Legal Officer
SUBSCRIBED TO before me on this l lth day of September 2024.
i"R� ``�• UNDSAY COKER ary Public in nd for the State of
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`__ :.�:�= My Notary ID # i32232948 My commission Expires: ���� �, `�
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f�SS1gTllTlei7t Page 2 of 3
CONSENT TO ASSIGNMENT
The City of Fort Worth consents to the assignment of Work Shield, LLC ("Assignor") to Work Shield, Inc. ("Assignee"), of all its rights, title, and obligation owing and all funds due or to become due to Assignor under CSCO 58199 as long as all terms required of Assignor in said contracts are met by Assignee.
CITY OF FORT WORTH &� Dianna Giordano (Sep 20, 202412:42 CDT) Department Director
Assistant City Manager
ATTESTED BY:
rk� Jannette Goodall, City Secretary
APPROVED AS TO FORM AND LEGALITY:
1�
City of Fort Worth Assistant City Attorney
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
Sep 20, 2024
Date
Sep 20, 2024
Date
Sep 20, 2024
Date
for the monitoring and administration of this contract, including ensuring all performance and reporting requirements.
Sep 20, 2024
Employee Signature/Date
Employee & Labor Relations Manager
Title
Assignment Page 3 ofJ
� IIVC�KK
USHIELD
August 23, 2024
City of Fort Worth
100 Fort Worth Trail
Fort Worth, Texas 76102
c/o: Tracy Walter, Management Analyst II
Financial Management Services
Re: Vendor Name Change Documentation
City Secretary Contract No. 58199
Dear Tracy:
Pursuant to Section 29 of the Vendor Services Agreement with an effective date of October
4, 2022 (as amended) by and between the City of Fort Worth, a Texas home rule municipal
corporation (the "City"), and Work Shield, Inc., a Delaware corporation (f/k/a Work Shield, LLC,
a Texas limited liability company) ("Work Shield"), please note that Work Shield has (a) changed
its company name to "Work Shield, Inc." from "Work Shield, LLC" and (b) converted from a Texas
limited liability company to a Delaware corporation.
Attached please find (1) an updated W-9 ("Attachment — A"), (2) filed conversion Texas
and Delaware documentation ("Attachment — B"), and (3) Board of Managers consent to Work
Shield conversion ("Attachment — C").
Please let me know if you have any questions or need any additional assistance.
Best,
Work Shield, Inc.
By: ' �.
Travis O. F r
CLO
cc: Jared S. Pope — via email delivery
Jennifer Pope — via email delivery
Accounting — via email delivery
� WORK
�SHIELD
Attachment — "A"
Updated W-9
Form ���
(Rev. March 2024)
Department of the Treasury
Internal Revenue Seroice
Request for Taxpayer
Identification Number and Certification
Go to www.irs.gov/FormW9 for instructions and the latest information.
Give form to the
requester. Do not
send to the IRS.
Before you begin. For guidance related to the purpose of Form W-9, see Purpose of Form, below.
1 Name of entity/individual. An entry is required. (For a sole proprietor or disregarded entity, enter the owner's name on line 1, and enter the business/disregarded
entity's name on line 2.)
Work Shield, Inc.
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C y
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a�
a�
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Business name/disregarded entity name, if different from above.
3a Check the appropriate box for federal tax classification of the entity/individual whose name is entered on line 1. Check
only one of the following seven boxes.
❑ Individual/sole proprietor � C corporation ❑ S corporation ❑ Partnership ❑ TrusUestate
❑ LLC. Enter the tax classification (C = C corporation, S= S corporation, P= Partnership) . . . .
Note: Check the "LLC" box above and, in the entry space, enter the appropriate code (C, S, or P) for the tax
classification of the LLC, unless it is a disregarded entity. A disregarded entity should instead check the appropriate
box for the tax classification of its owner.
❑ Other (see instructions)
3b If on line 3a you checked "Partnership" or "TrusUestate," or checked "LLC" and entered "P" as its tax classification,
and you are providing this form to a partnership, trust, or estate in which you have an ownership interest, check
this box if you have any foreign partners, owners, or beneficiaries. See instructions . . . . . . . . .❑
5 Address (number, street, and apt. or suite no.). See instructions.
300 Crescent Ct, Ste 875
6 City, state, and ZIP code
Dallas, TX 75201
7 List account number(s) here (optional)
Identification Number
4 Exemptions (codes apply only to
certain entities, not individuals;
see instructions on page 3):
Exempt payee code (if any)
Exemption from Foreign Account Tax
Compliance Act (FATCA) reporting
code (if any)
(Applies to accounts maintained
outside the Uniied States.)
Requester's name and address (optional)
Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid
backup withholding. For individuals, this is generally your social security number (SSN). However, for a
resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other
entities, it is your employer identification number (EIN). If you do not have a number, see How to get a
TIN, later.
Note: If the account is in more than one name, see the instructions for line 1. See also What Name and
Number To Give the Requester for guidelines on whose number to enter.
Certification
Under penalties of perjury, I certify that:
I Social security number
� _ I I I _ �
or
Employer identification number
3 0_ 1 3 7 7 3 1 7
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and
2. I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am
no longer subject to backup withholding; and
3. I am a U.S. citizen or other U.S. person (defined below); and
4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.
Cerrtification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest and dividends on your tax retum. For real estate transactions, item 2 does not apply. For mortgage interest paid,
acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and, generally, payments
other than interest and dividends, you are not required to siqn the certification, but you must provide your correct TIN. See the instructions for Part II, later.
Sign Signature of
Here U.S. person
�.
Date 6/28/2024
General Instructions
Section references are to the Internal Revenue Code unless otherwise
noted.
Future developments. For the latest information about developments
related to Form W-9 and its instructions, such as legislation enacted
after they were published, go to www.irs.gov/FormW9.
What's New
Line 3a has been modified to clarify how a disregarded entity completes
this line. An LLC that is a disregarded entity should check the
appropriate box for the tax classification of its owner. Otherwise, it
should check the "LLC" box and enter its appropriate tax classification.
New line 3b has been added to this form. A flow-through entity is
required to complete this line to indicate that it has direct or indirect
foreign par[ners, owners, or beneficiaries when it provides the Form W-9
to another flow-through entity in which it has an ownership interest. This
change is intended to provide a flow-through entity with information
regarding the status of its indirect foreign partners, owners, or
beneficiaries, so that it can satisfy any applicable reporting
requirements. For example, a partnership that has any indirect foreign
partners may be required to complete Schedules K-2 and K-3. See the
Partnership Instructions for Schedules K-2 and K-3 (Form 1065).
Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an
information return with the IRS is giving you this form because they
Cat. No. 10231X Form W-9 (Rev. 3-2024)
USHIELD
Attachment — "B"
Filed Conversion Documentation
Corporations Section ,�� E Q
P.O.Box 13697 �,�� �,.�
Austin, Texas 78711-3697 W � �`�,
'� !a
� � '�
Office of the Secretary of State
CERTIFICATE OF CONVERSION
Jane Nelson
Secretary of State
The undersigned, as Secretary of State of Texas, hereby certifies that a filing instrument for
Work Shield, LLC
File Number: 802945835
Converting it to
Work Shield, Inc.
File Number: [Entity not of Record, Filing Number Not Available]
has been received in this office and has been found to conform to law. ACCORDINGLY, the
undersigned, as Secretary of State, and by virtue of the authority vested in the secretary by law, hereby
issues this certificate evidencing the acceptance and filing of the conversion on the date shown below.
Dated: 10/24/2023
Effective: 10/24/2023
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Jane Nelson
Secretary of State
Come visit us on the internet at https://www. sos. texas.gov/
Phone: (512) 463-5555 FaY: (512) 463-5709 Dial: 7-1-1 for Relay Services
Prepared by: Lisa Sartin TID: 10340 Document: 1297784450002
Filing#:80Z945835 Document#:1Z97784450002 Filed Qn 10�24�2023 recei�ed hy Upload
Farm 636
(Re�ised a5111}
Return in duplicate ta:
Secretary of State
P.�. Box 136g7
Austin, TX 7$711-3597
S 12 453-55SS
FAX: S12 453-57�9
Filing Fee; See Instructians
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Certificate of Con�ersion
❑f a
Limited Liahility Company
Con�erting
to a
This spa�e resen+ed for offi�e use.
Can�erting Entity Infarmatian
The narne of the con�erting lirnited liability cornpany is:
Wark Shield, LLC
The jurisdiction af formation of the lirnited liability carnpany is : Texas
The date of formation of the limited liabiliry company is: February 26, 2a18
The file number, if any, issued to the limited liahility company by the secretary of state is: Q8Q2945835
Plan of Can�ersian—Alternati�e Statements
The limited liahility company named aho�e is con�erting to a: ✓❑ for-pmfit corporation
❑ professional corporation ❑ nonprofit corporation. The narne af the corporation is:
Wvrk Shield, Inc.
The corporation will he formed under the laws of : Delaware
❑ The plan af can�ersion is attached.
If the plan nf �on�ersion is not attached, the fallnwing statements rna.st he completed.
❑✓ Instead af attaching the plan of con�ersion, the lirnited liability carnpany certifies to the
following staternents:
A signed plan of con�ersion is on file at the principal place of husiness of the limited liability
cornpany, the can�erting entity. The address af the principal place of business of the lirnited liability
company is:
300 Crescent Caurt, 5uite 875
5treet or Mailing Address
Dallas
City
TX U5A 752Q1
State Cauntry Zip Cade
A signed plan of con�ersion will he on file after the con�ersion at the principal place of business af
the corporation, the con�erted entiry. The address of the principal place of business of the corporation
15:
3[X] Crescent Caurt, Suite 875
5rreer or Mceiling Ar�dress
Dallas
Ciry
TX LISA 7S2a1
Srare Counrry Zip Code
A copy of the plan of con�ersion will be furnished on written request without cost by the con�erting
Farm fi3G ¢
entity before the con�ersion ar by the can�erted entity after the can�ersion to any awner ar mernber of
the con�erting ar con�erted entity.
Certificate vf Farmatian far the Canverted Entity
❑ The con�erted entity is a Texas corporation. The certificate af formation of the Texas corporation
is attached to this certificate either as an attachrnent ar exhibit ta the plan of con�ersion, or as an
attachment ar exhibit to this certificate of con�ersion if the plan has not been attached to the certificate
af con�ersion.
Appra�al af the Plan af Cvn�ersion
The plan of con�ersion has heen appro�ed as required by the laws of the jurisdiction of formation and
the go�erning docurnents af the con�erting entity.
EfFeCtlVeileSS aF F�Illlg (5elect either A, s, or c.�
A. ❑✓ This document hecomes effecti�e when the document is accepted and filed hy the secretary af
state.
S. ❑ This document becomes effecti�e at a later date, which is not more than ninety (90} days from
the date af signing. The delayed effecti�e date is:
C. ❑ This docurnent takes effect upon the occurrence of the future e�ent or fact, other than the
passage of time. The 90th day after the date of signing is:
The following e�ent ar fact will cause the docurnent ta take effect in the rnanner described below:
Tax Certificate
� Attached hereto is a certificate frorn the cornptroller af public accounts that all taxes under title
2, Tax Code, ha�e been paid hy the limited liability company.
� In lieu of pm�iding the tax certificate, the corporation as the con�erted entity is liable for the
payrnent af any franchise taxes.
Execu�ian
The undersigned signs this document suhject ta the penalties imposed by law for the suhmission of a
materially false ar fraudulent instrument.
Date: 1�11912a23
�
Jared S. Pope, CE
Farm fi3G
Signature and title af autharixed person on hehalf of the
con�erting entity
Print Reset
Delaware
The First State Page 1
2524946 8100F Authentication: 204431080
SR# 20233794151 Date: 10-23-23
You may verify this certificate online at corp.delaware.gov/authver.shtml
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF CONVERSION OF A TEXAS LIMITED LIABILITY
COMPANY UNDER THE NAME OF “WORK SHIELD, ”LLC TO A DELAWARE
CORPORATION, CHANGING ITS NAME FROM "WORK SHIELD, LLC" TO "WORK
SHIELD, INC.",FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF
OCTOBER, A.D. 2023, AT 4:13 O`CLOCK P.M.
State of Dela��are
Secretan� of 5tate
Di�ision of Corporations
STATE OF DELAWARF �eu��ere� aa:i3 p��7 io,�l3,zoz3
FILED 04:13 PhI 1D-23r2Q23
CERTIFICATE OF CONVERSION SR 2D233744151 - Filelumber 2sz4v�6
FROM A LIMITED LIABILITY COMPANY TU A
CORPORATION PURSUANT TO SECTION 265 OF
THE DELAWARE GENERAL C4RP4RATION LAW
1. The jurisdiction where the Iimited liabiTity corr�pany was f rst formed is
Texas
and the date the limited Tiability co�npany fust formed is ����u�ry 2s= 2Q�s
2. The jurisdictinn irnrnediately prinr tn fiiing this Certif cate is reXas
3. The name of the limited Iiability co�npany immediately prior to filing this
COIiIf C��O IS Wark Shield, LLG
4. The name of the corporation as set forth in the Certif cate of �ncorporation is
Work 5hield, [nc.
IN WITNESS WHEREOF, the undersigned have executed this Certifcate nn the
19th �y o f October , A.D. 2023
B�,' �"� : �� -=---
A�thor�zed erson
Name: �lared S. Pape
Print nr Type
Delaware
The First State
Page 1
2524946 8100F Authentication: 204431080
SR# 20233794151 Date: 10-23-23
You may verify this certificate online at corp.delaware.gov/authver.shtml
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “WORK
SHIELD, ”INC. FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF
OCTOBER, A.D. 2023, AT 4:13 O`CLOCK P.M.
State of Dela�-arf
Secrelai�r� of State
Di�ision of CorporatioQs
Delirered 04:I3 P]I I0�23.2023
FILED 04;13 PhI 10+'23!20Z3
SR 20233794151 - File \umber Z524946
CERT�FICATE QF INC(?RP(?RATIQN
o�
WORK SI�I�LD, INC.
ARTICLE I
'I`he r�arne af �is carparatian is Wari� ��iieid, Inc. (�ie "C(Ii�()P(,�%l0�'l")
ARTICLE II
The adciress nf �ie registerecl aifice af the Co�paratian ir� �he Sta�e af Delaware is Capi�a�
�ervices, Inc., 108 LakeIar�d Avenue, Dover, Kent Caunty, Delaware 19901.
ARTICLE III
Tl�e na�zre of �e busi�ess or purposes to be conciucted or promoteci is to engage in any
lawiul aci ar activi€y for whic� earporatia�s may be argar�izecl w�cler �he Ger�eral Carpnratian Law.
ARTICLE �V
The total number of shares of al� c�asses of s�ock which �e Corporaiior� shall have authority
�o issue is (i) 1,08 �,462 shares of Corr�rr�on Stock, $OA001 par va�ue per share ("Cnjnrraora Stock")
anci (ii) 3Q8,989 shares of Preferred Stock, �0.0001 par value per share ("Prefer�ed Stoek").
The failawir�g is a staterr�er�t af �ie designatio�s anci �e pawers, pri�i�eges ar�d rig�i�s, ar�d
�he quaIificatinns, Iimi�a�iar�s ar res�ric�ions ��iereaf ir� respect af eac�i class af capitai stacl� af �he
Carparation.
A. COMMON �TQCK.
1. Gene�al. T�e voiing, divicier�d ancI liquiciaiion rights of the hoiders of the
Commor� Stock are subject io a�d c�ualif ed by the rights, powers anc� preferences of ihe holciers of
�ie Preferred �tack set farth herein.
2. Vating. The �aiders af the Carr�mnn S�ack are er�titlecl ta ane (1) vc�te for
each share af Carr�mor� S�nck heid a� aII rr�ee�i�gs af stockl�alc�ers (ar�d written ac�iar�s in �ieu af
�nee�ir�gs); a�r vided, hawever, ti�a�, except as atherwise rec�uired by law, �ioIders af Carnr�o�
�tnck, as such, s�iall r�a� be er�titlec� �a va�e or� any arr�end�ner�� ta �his Certificate af Incarporatiar�
(this "Certificate of Incorporatiora") that relaies so�e�y to the terms of one (1) or rnore ou�sta�ding
series of Preferred Stock if t�e holciers of such affecied series are entitieci, either separate�y or
�age��ier with tl�e hoiders af ane ar �nare ather such series, ta vate therear� purs�zar�t ta t1�is
Certifica�e af Incarpara�iar� ar pursuar�t �a �ie General Corporatian Law. Ti�ere s�aIl be na
curr�ulative voting. The number nf au.��orizecl sl�ares ai Cnrnrr�or� �tack may be increased ar
decreased (but nnt beinw the nwr�ber nf shares therenf then nutstanding) by (in additinn tn any
vote of the holders of one (1) or more series of Preferred Stock that may be required by the terms
of this Certif cate of �ncorporation) the affirmative vote of the holders of shares of capital stock of
the Corporation representing a�najority of the votes represented by ail outstanding shares of capital
stnck nf the Cnrpnratinn entitled tn vnte, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law.
f���������1c�LiZi�
3Q8,989 shares of the authorized and unissued Preferred Stock of the Corporation are
hereby designated "Series A Preferred Stoek" with the foliowing rights, preferences, powers,
privileges and restrictinns, quaiifcatinns and �irr�itatinns. Unless ntherwise indicated, references
to "sections" or "subsections" in this Part B of this ARTICLE N refer to sections and subsections
of Part B of this ART�CLE N.
1. Dividends.
1.1 Series A Preferred Stock. Frorr� and after the date of the issuance
of any shares of Series A Preferred Stock, dividends sha1T accrue on such shares of Series A
Preferred Stock at the rate per annum of eight percent (8%) of the Series A Original �ssue Price
(as defined below) (the "Series A Acc�uing Dividends"). Series A Accruing Dividends sha1T
accrue from day to day, whether or not declared, and sha1T be cumulative; ron vided, however, that
except as expressly set fnrth in this Part B nf this ARTICLE IV, such Series A Accruing Dividends
shall be payable nn�y when, as, and if dec�ared by the Bnard nf Directnrs nf the Cnrpnratinn and
the Corporation shall be under no obligation to pay such Series A Accruing Dividends. For so long
as any shares of Series A Preferred Stock remain outstanding, the Corporation shall not declare,
pay or set aside any dividends on shares of Common Stock or declare, pay or set aside any
dividends on shares of any other class or series of capital stock of the Corporation unTess (in
additinn tn the nbtaining nf any cnnsents required elsewhere in this Certificate nf Incnrpnratinn)
(a) such dividend is apprnved by the Requisite Hn�ders (as defined belnw) and (b) the hniders nf
the Series A Preferred Stock then outstanding sha11 fust receive, or simultaneously receive, a
dividend on each outstanding share of Series A Preferred Stock in an amount at Teast equal to (A)
a cash dividend, on an as-converted to Common Stock basis, equal to the cash dividend paid on
the Cnrr�nn Stnck, (B) in the case nf a dividend nn any class nr series that is cnnvertible intn
Corrunon Stock, that dividend per share of Series A Preferred Stock as wou�d equal the product of
(1) the dividend payabie on each share of such ciass or series detern�ined, if applicable, as if ali
shares nf such c�ass nr series had been cnnverted intn Cnrrunnn Stnck and (2) the nurr�ber nf shares
of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case
calcu�ated on the record date for detern�ination of holders entitled to receive such dividend or (C)
in the case of a dividend on any class or series that is not convertible into Corrunon Stock, at a rate
per share nf Series A Preferred Stnck detertnined by (1) dividing the arr�nunt nf the dividend
payabie nn each share nf such class nr series nf capital stnck by the nriginal issuance price nf such
class or series of capital stock (subject to appropriate adjustrnent in the event of any stock dividend,
stock split, combination or other similar recapitalization with respect to such class or series) and
(2) rr�ultiplying such fraction by an atnount equa� to the Series A Origina� Issue Price; rnn vided
that if the Cnrpnratinn declares, pays nr sets aside, nn the sarr�e date, a dividend nn shares nf rr�nre
than nne class nr series nf capital stnck nf the Cnrpnratinn, the dividend payabie tn the hniders nf
�a
Series A Preferred Stnck pwsuant tn this Sectinn 1 sha�l be ca�culated based upnn the dividend nn
the class or series of capital stock that wo�Id res�It in the highest Series A Preferred Stock
dividend.
2. Liquidatinn, Dissnlution or Winding Up; Ce�tain Me�gers,
Cnnsolidations and Asset Sales.
2.1 P�eferential Payments to Hnlders of P�efe�red Stnek. �n the event
of any voluntary or involuntary liquidation, dissol�tion or winding up of the Corporation (as
defined below), the holders of shares of Series A Preferred Stock then o�tstanding shall be entitled
tn be paid nut nf the assets nf the Cnrpnratinn avaiiabie fnr distributinn tn its stnckhniders, and in
the event nf a Deerned Liquidatinn Event, the hniders nf shares nf Series A Preferred Stnck then
nutstanding shali be entitled tn be paid nut nf the cnnsideratinn payable tn stnckhniders in such
Dee�ned Liquidation Event or o�t of the Available Proceeds (as defned below), as applicable, on
a pari pass� basis, before any payment sha1T be made to the holders of Common Stock by reason
nf their nwnership therenf, with respect tn each share nf Series A Preferred Stnck, an arnnunt per
share equal tn the Series A Origina� Issue Price (as defined below), pius all accrued but unpaid
Series A Accruing Dividends (whether nr nnt declared) and a�l nther dividends declared but unpaid
therenn (the arnnunt payable pursuant tn this sentence is hereinafter referred tn as the "Series A
Liquidatinn Amnun�'). If upon any such liquidation, dissol�tion or winding �p of the Corporation
nr Deerned Liquidatinn Event, the assets nf the Cnrpnratinn availabie fnr distributinn tn its
stnckhn�ders sha�l be insufficient tn pay the hn�ders nf shares nf Series A Preferred Stnck the fi��l
axnnunt tn which they shal� be entitled under this Sectinn 2.1, the hniders nf shares nf Series A
Preferred Stnck shali share ratabiy in any distributinn nf the assets avaiiable fnr distributinn in
prnpnrtinn tn the respective arnnunts which wnuld ntherwise be payabie in respect nf the shares
held by them upon such distrib�tion if all amounts payable on or with respect to s�ch shares were
paid in f�II.
The "Series A Original 1'ssue Price" shall mean $19.42 per share, s�bject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other similar
recapitalization with respect to the Series A Preferred Stock.
`�.2 Payments tn Hnlders of Prefer�ed Stock and Common Stnek. In
the event nf any vnluntary nr invnluntary liquidatinn, dissnlutinn nr winding up nf the Cnrpnratinn
nr Deerned Liquidatinn Event, after the pay�ent nf the entire Series A Liquidatinn Arnnunt tn the
hnlders nf Series A Preferred Stnck pursuant tn Sectinn 2.1, the rernaining assets nf the Cnrpnratinn
available fnr distributinn tn its stnckhn�ders nr, in the case nf a Deerned Liquidatinn Event, the
consideration not payable to the holders of shares of Preferred Stock purs�ant to Section 2.1 or the
rernaining Avaiiable Prnceeds, as the case rnay be, shall be distributed arnnng the hniders nf the
shares nf Series A Preferred Stnck and Cnrr�rr�nn Stnck (inc�uding shares nf Cnr�unnn Stnck issued
nn cnnversinn nf Series A Preferred Stnck), prn rata based nn the nurnber nf shares he�d by each
such hn�der, �reating fnr this purpnse al� shares nf Series A Preferred Stnck as if they had been
cnnverted tn Cnrnrnnn Stnck pwsuant tn the terrns nf this Certif cate nf Incnrpnratinn ir�vnediately
prior to s�ch liquidation, dissolution or winding �p of the Corporation or Deemed Liquidation
Event; prnvided, hnwever, that if the aggregate arnnunt that the hniders nf Series A Preferred Stnck
wnuld ntherwise be entitled tn receive under Sectinns 2.1 and Sectinn 2.2 sha�� exceed the Series
A Participatinn'Threshnld (as defined be�nw), then, nntwithstanding anything in Sectinn 2.1 tn the
cnntrary, the holders of Series A Preferred Stock shali only be entitled to receive such portion (if
any) ofthe Series A Liquidation Amount as would not, when taken together with the amounts such
holders are entitled to receive under Sections 2.1 and 2 2 with respect to each share of Series A
Preferred Stock, exceed the Series A Participation Threshold (as defined below) (excluding, for
pw�pnses nf this deterrninatinn, the pay�ent nf any accrued but w�paid dividends nn shares nf
Series A Preferred Stock). As used herein, "Series A Participation Tlareshotd' rneans four (4)
tirr�es the Series A Ot�iginal Issue Price for the Series A Preferred Stock (subject to appropriate
adjust�ent in the event nf a stnck sp�it, stnck dividend, corr�bination, rec�assification, nr sirr�iiar
event affecting the Series A Preferred Stock).
2.3 Deemed Liquidation Events.
(a) Defaraition. Each nf the fn��nwing events shall be cnnsidered
a"Deemed Liquidation Event" unless the holders of at Ieast a majority of the outstanding shares
of Series A Preferred Stock, voting together as a single class on an as-converted basis (the
"Requisite Holders"), e�ect otherwise by written notice sent to the Corporation at least twenty (24)
days prinr tn the effective date nf any such event:
(i) a rnerger or consolidation in which:
A. the Corporation is a constit�ient party or
B. a subsidiary of the Corporation is a
cnnstituent party and the Cnrpnratinn issues shares nf its capitai stnck pw�suant tn such rr�erger nr
cnnsn�idatinn,
except any such merger or consolidation involving the Corporation or a subsidiary in which the
shares of capita� stock of the Corporation outstanding irr�rr�ediate�y prior to such rr�erger or
conso�idation continue to represent, or are converted into or exchanged for shares of capital stock
that represent, irr�rnediately foiiowing such rnerger or conso�idation, at �east a rr�ajority, by voting
power, of the capital stock of (1) the s�u-viving or resulting corporation; or (2) if the surviving or
resulting corporation is a wholTy owned subsidiary of another corporation immediately following
such merger or consolidation, the parent corporation of such surviving or resulting corporation; or
(ii) (1) the sa1e, Tease, transfer, exclusive Iicense or other
disposition, in a single transaction or series of related transactions, by the Corporation or any
subsidiary nf the Cnrpnratinn nf ali nr substantialiy ail the assets nf the Cnrpnratinn and its
subsidiaries taken as a whoie, or (2) the saie or disposition (whether by rr�erger, conso�idation or
ntherwise, and whether in a sing�e transactinn nr a series nf re�ated transactinns) nf nne nr rnnre
subsidiaries of the Corporation if substantialTy aT1 of the assets of the Corporation and its
subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sa1e,
lease, transfer, exciusive �icense nr nther dispnsitinn is tn a whnily nwned subsidiary nf the
Cnrpnratinn.
(b) Effecting a Deemed Liquidatinn Event.
(i) The Corporation shall not have the power to effect a
Deemed Liquidation Event referred to in Section 2.3 (a (��A unless the agreement or plan of inerger
ar car�salida�iar� far sueh trar�sactian (the "Merger Agreement") pravides �at the ear�sidera�iar�
payabie to the stockholders of the COij]02'a�i0ii iTt SUC�'t De�1T1f:C� LILjUiCla�i�?l Event shail be
allocatec� to the holciers of capital stock of �he Corporation in accorc�ar�ce wiih Sec�ior�s 2.1 anci
2.2.
(ii) Ir� �e even� of a Deemec� Lic�uidation Eve�� referreci
�o in Section 2.3 f a)(i)B or 2.3 a ii , if the Corporatior� does not effeci a ciissolu�io� of ��e
Ca�paratian under ��e Ger�eral Carparatian Law wi�hin r�ir�ety (90} ciays after such Deerned
Liquiclatian Ever�t, �her� (i) ��e Ca�paratian sha�� send a written nntice ta eaeh halcler af Preferred
S�ock no laier than the ninetieth (90�h) clay after the Deerr�eci Lic�uidatior� Event acivising sueh
ho�ders of their right (anci the requirerr�ents to be rrfet �o secure such righi) pursua�� to the �erms of
the following clause; (ii) to rec�uire the rede�p�ion of sucl� shares of Preferred S�ock, ar�d (iii) if
the Requisite Holclers so rec�uest in a wriiter� instr�.imeni cielivered to t3�e Co�poraiion noi la�er ihan
ane �ur�dreci twer�ty (120) days after such Deemeci Liquidatia� Event, ��e Corporatinn shaIi use
��e ca�sidera�ior� reeei�ed by t3�e Carparatiar� fc�r such Deemed Liquida�inn E�er�t (ne� af any
retained Iiabilities associateci with ��e assets so�d or teel�nology Iicenseci, as cietermi�ec� in good
faith by ��e Boarc� of Directors of the Corporation), toget�er wiih a�y otl�er assets of t�e
Corporation avaiiable for disiributior� to its stockholders, al� to �e extent permitteci by Delaware
law governir�g clistributions to stockl�o�ders (the "AvailabCe Proceeds"), on the one hundred fiftieth
(1SOt�) clay af�er sueh Deemed Liq�ziciatian Ever�t, tn recieerr� aii au.�s�anclir�g shares of Preferreci
��ack a� a. price per share equal to the appiicable aggregate a�na�ni such halcier oi Preferrecl Stock
is eniitlec� to receive uncier Section 2.1 ar�d Sectio� 2.2. Notwiths�ancii�g tl�e foregoing, i� the
event of a recierr�ptior� pursuar�t to the prececiing sentence, if the Avaiiable Proceeds are r�ot
suffcier�� to redeerr� ali outstanciing shares of Preferreci Stock, the Corporation s�all frst recieerr�
a�l of the outsta�ding shares of �eries A Preferred Stock, provic�ec� that if t3�e Available Proceeds
are nat su.ificient to recieern aii auts�anding shares af Series A Preferred Staek, �ie Cn�paratian
sha11 recleem a prc� rata partian af each �ialder's s�iares af Series A Preferred �tack ta the fuilest
exter�t of such Availab�e Proceec�s, �7aS�E� �ii ��'t� T�3�ieC�iV� �1ii0UTi�S W�'liC�i WOU�E� O��"i�I'WiS� �e
payable ir� respec� of the shares to be recieerr�ec� if �he Available Proceecis were suff cieni to recleerr�
ail such shares, a�d shall recieem t�e remair�ing shares of �eries A Preferred Stock as soon as it
rr�ay �awiul�y �Ia so un�ier De�aware law goverr�i�g clistribu�inns to s�ackl�oiders. Priar ta the
dis�-ibutian or re�Iemptiar� pravided for in this Seetion 2.3(blfi), ��e Carporatian shalI nnt expencl
ar dissipate the car�sidera�ic�n recei�eci for suc�i Deemed Liquiclatian Ever��, excep� to discl�arge
expenses incurred ir� canr�ec�iar� with such Deerr�ecl Liquida�ior� Event.
(c) Amaunt Deemed Puid or Distributed. Ii�he a�nour�t deetneci
�aid or c�is�-ibu�eci uncier �his Seciion 2.3(cl is rnade i� property other thar� ir� cash, the vaiue of
such distributior� sha1� be the fair rr�arket value of such property, determineci in good faith by the
Boarc� ofDirectors of the Corporaiion (including tl�e approval of the Series A Directors (as ciefi�eci
herein)) as faiiows:
(i) For securiiies r�ot subject to investrr�er�t letters or
o�er si�nilar restrictiar�s a� free rr�arl�etability:
A. if iraded ar� a seeurities exchange, the vaIue
shall be ciee�ned ta be i�ie average af the elasing prices af the seeurities ar� suc�i exc�iar�ge ar rnarket
aver the �iirty (30) day per�ac� enclir�g three (3) c�ay� pr�ar �c� �ie clasing nf such �ransactian;
B. if active�y traded nver-the-a�unter, the va�ue
sha11 be deemed to be the average of the closing bid prices over the thirty (30) day period ending
three (3) days prior to the closing of such transaction; or
C. if there is no active public market, the value
sha11 be the fair market value thereof, as determined in good faith by the Board of Directors of the
Corporation.
(ii) The method of valuation of securities subject to
investment Ietters or other similar restrictions on free marketabiTity (other than restrictions arising
snlely by virtue nf a stnckhnider's status as an aff liate nr fnrrner aff liate) sha�l take intn accnunt
an apprnpriate discnunt (as detern�ined in gnnd faith by the Bnard nf Directnrs nf the Cnrpnratinn)
frnrr� the rr�arket value as deterrnined pw�suant tn c�ause (c)(i) abnve sn as tn reflect the approxirnate
fair market value thereof.
(d) Altoeation of Eserow and Coratingerat Corasideratiora. In the
event of a Deemed Liquidation �vent pursuant to Section 2.3(a (�lA, if any portion of the
consideration payable to the stockholders of the Corporation is placed into escrow and/or is
payable nn�y upnn satisfactinn nf cnntingencies (the "Additional Corasideration"), the Merger
Agreernent shal� prnvide that (a) the pnrtinn nf such cnnsideratinn that is nnt Additinnai
Consideration (such portion, the "Iraitiat Corasideration'� sha�l be al�ocated axnong the holders of
capital stock of the Corporation in accordance with Sections 2.1 and 2.2 as if the Initial
Consideration were the only consideration payable in connection with such Deemed Liquidation
�vent; and (b) any Additional Consideration which becomes payabTe to the stocicholders of the
Corporation upon release from escrow and/or satisfaction of such contingencies shall be allocated
arnnng the hnlders nf capital stnck nf the Cnrpnratinn in accnrdance with Sectinns 2.1 and 2 2 after
talcing intn �CCOlirit �Yl� previnus pa}�ent nf the Initial Cnnsideratinn as part nf the sarne
transaction. For the purposes of this Section 2.3(d�, consideration placed into escrow or retained
as a holdback to be available for satisfaction of indemnification or similar obligations in
connection with such Deemed Liquidation Event shall be deemed to be Initial Consideration.
3. Voting.
3.1 General. On any rr�atter presented tn the stnckhn�ders nf the
Corporation for their action or consideration at any meeting of stockholders of the Corporation (or
by written consent of stockholders in Iieu of ineeting), each holder of outstanding shares of
Preferred Stnck shall be entit�ed tn cast the nwr�ber nf vntes equal tn the n►u�ber nf whnle shares
of Corr�rnon Stock into which the shares of Preferred Stock held by such holder are convertibie as
of the record date for detern�ining stockholders entitied to vote on such rr�atter. Except as provided
by Iaw or by the other provisions of this Certif cate of �ncorporation, holders of Preferred Stock
sha11 vote together with the holders of Common Stock as a single class and on an as-converted to
Common Stock basis.
�.� Electinn of Directn�s. At any time when at Ieast 77,247 shares of
Series A Preferred Stock (subject to appropriate adj�.stment in the event of any stock dividend,
stock split, cornbination or other sirr�ilar recapitalization with respect to the Series A Preferred
Stnck) are nutstanding, the hniders nf recnrd nf the shares nf Series A Preferred Stnck, exclusively
and as a separate ciass, shail be entit�ed tn e�ect nne (1) directnr nf the Cnrpnratinn (the "Series A
Direetors"�. The holders of record of the shares of Common Stock, voting together as a single-
class, sha1T be entitTed to elect three (3) directors of the Corporation. The holders of record of the
shares nf Cnrr�nn Stnck, vnting tngether as a sing�e-c�ass, sha�l be entit�ed to e�ect one (1)
additional director of the Corporation, subject to the approval of the Series A Director. Any
director e�ected as provided in the preceding three sentences r�ay be re�noved without cause by,
and nnly by, the affirtnative vnte nf the hniders nf the shares nf the class nr series nf capital stnck
�ritit��f� t0 ��OCt Si1CY1 Clii'0Ct01' OI' Clii'�CiOI'S, �iV�II �ii1i�1' �i � SpOCI�� Iri��tiri� Of SlTC�'l SiOC�cl]O�CI�I'S
duly calTed for that puipose or pursuant to a written consent of stockholders. �f the holders of
shares nf Series A Preferred Stnck nr Cnrr�nn Stnck, as the case rr�ay be, fai� to elect a sufficient
nwnber of directors to f l� a�l directorships for which they are entitled to elect directors, pursuant
tn this Sectinn 3.2, then any directnrship nnt sn f l�ed shal� re�nain vacant until such tirne as the
ho�ders of the Series A Preferred Stock or Corr�on Stock, as the case �nay be, e�ect a person to
f 1I such directorship by vote or written consent in Iieu of a meeting; and no such directorship may
be f 11ed by stockholders of the Corporation other than by the stockholders of the Corporation that
are entitled tn elect a persnn tn f l� such directnrship. The hniders nf recnrd nf the shares nf
Cnrrunnn Stnck and nf any nther class nr series nf vnting stnck (including the Series A Preferred
Stnck), exc�usive�y and voting together as a single c�ass, shall be entitled tn elect the balance nf
the total number of directors of the Corporation. At any meeting held for the purpose of electing
a director, the presence in person or by proxy of the holders of a majority of the outstanding shares
of the class or series entitled to elect such director shall constitute a quorum for the purpose of
electing such director. Except as otherwise provided in this Section 3.2, a vacancy in any
directnrship fiiled by the hniders nf any class nr series shall be f l�ed nnly by vnte nr written cnnsent
in lieu of a rr�eeting of the ho�ders of such class or series or by any re�naining director or directors
elected by the holders of such class or series pursuant to this Section 3.2. The provisions of this
Section 3.2 are subject to that certain Voting Agreement, dated on or about the date hereof, by and
among the Corporation and certain holders of its Common Stock and Preferred Stock, as such
agreement may be restated, amended, supplemented or otherwise modified from time to time.
3.3 P�efe�red Stnek Protective Provisinns. At any time when at least
154,494 shares nf Series A Preferred Stnck (subject tn apprnpriate adjust�nent in the event nf any
stock dividend, stock sp�it, co�nbination or other sitnilar recapita�ization with respect to the Series
A Preferred Stnck) are nutstanding, the Cnrpnratinn shal� nnt, either direct�y nr indirectly by
atnenc�tnent, rnerger, cnnsnlidatinn nr ntherwise, dn any nf the fn�inwing withnut (in additinn tn
any other vote required by 1aw or this Certif cate of Incorporation) the written consent or
affirn�ative vnte nf the Requisite Hnlders, given in writing nr by vnte at a rneeting, cnnsenting nr
vnting (as the case �nay be) separately as a c�ass, and any such act nr transactinn entered intn
without such consent or vote sha�� be nu�� and void ab initia, and of no force or effect.
(a) create or authorize the creation of or issue any other secw�ity
convertible into or exercisable for any equity security, having rights, preferences or privileges
senior to the Series A Preferred Stock, or increase the authorized number of shares of Common
Stock or Preferred Stock;
(b) a�nend, alter nr repea� any prnvisinn nf this Certif cate nf
�ncorporation or the Bylaws of the Corporation;
7
ic) purc�ase ar reclee�n (nr per�nit any subsidiary ta purchase ar
recleem) or pay or declare ar�y dividenc� or �nake any c�istribuiion on, any shares of capital stock of
t�e Co�poratior� other �har� {i) recierr�ptions of or ciividenc�s or distributions on �he Preferred Stoc�C
as expressiy autharizeci hereir�, (ii) diviciend.s ar n�ier clist�-ibutior�s payable a� the Ca�nrr�ar� �tocl�
salely in the farrr� af acidi�iar�al s�iares nf Camrr�an Stacl�, (iii} repurchases of stac�C frarn farmer
err�playees, aff cers, ciirec�ors, car�sultants or n�her persar�s w�ia performeci services far the
Corpc�ratinn nr ar�y subsidiary i� conr�ectiar� wi� �ie cessatiar� af such emplay�ner�� ar service at
��ie lawer of the arigir�al purc�iase price or t�ie t1�en-currer�t fair tnarke� valu.e ��iereaf pr (iv) as
approveci by the Boarci of Directors, inc�ucii�g the approval of the Series A Directors;
(c�) acc�uire anoiher corporaiion or oiher entity by merger,
purchase of substar��ialiy al� of the assets or o�her reorga�ization;
(e) lic�uidate, disso�ve or wind up the affairs of the Corpora�ior�,
or effect any merger or cor�solidatior� or any oiher Deemeci Lic�uida�ior� Ever�t, or permit any
subsidiary �a dp the sarr�e, or, ur�less �e abIigatians of �he Ca�pnra�ian ar ��ie subsiciiary ur�der
eaeh app�icabie agreemen� are expressiy cor�ciitiar�a� upan tt�e appravaI of the Rec�uisite Halciers,
�nake ar�y agreement ar beearne abligated to cIa so ar permi� a subsidiary �a make ar�y agreement
ar became obliga�ed �a cIo sa; pravicled, hawever, the approval required by this �ec�iar� 3.3 (e) s�ial I
not be requireci if t�e gross cash proceeds to t3�e �o�ders of the Series A Preferrec� Stock are in an
amaun� per sl�are equal tn ar grea�er tha.n the �eries A Participatian Thres�aid;
(f� pledge or encumber aIl or substar��ial�y aIl of the assets of the
Corporation;
(g) (i) i�crease or decrease ihe authorizec� r�umber of ciirectors
constituti�g the Boarc� of Directors, (ii) c�ange the election proceciures for the Board of Directors
OP �Ii1� �C���1� aIiY �3i'OViSi�ii iIiC�11S1S�e21� WI��1 Al'�1CI� VI;
(�) issue a�y capi�al stock of t�e Corporaiion ot�er tha� in
accorclar�ce with the Carpara�ian's stack aption ar ather equity i�centive plar�s;
(i) create, or au�horize the crea�ior� of, or issue, or autt�orize ihe
issuar�ce of ar�y debt security or crea�e ar�y lien or security ir�terest {except for purc�ase rr�oney
liens or s�atu.tary Iier�s af lancilnrcis, meehanics, ma�erialrr�er�, work�ner�, warehauserr�er�, ar�d a�her
sirni�ar perso�s arisir�g or ir�currec� in �he ordinary course of business) or incur any aggregate
inciebtedness in excess of $250,000 �hai is not alreacly inelucieci ir� a buciget approved by the Board
of Directors (i�cluding t�e approval of �he Series A Directors), other than trac�e credit incurred i�
the orciir�ary course of business;
(j) create, or �oid capital stock in, any subsidiary that is r�oi
whaliy ow�ecl (either clirec�iy ar ��iraugh ane ar rr�are other subsicliaries) by ��ie Carparatiar�, or
perrr�it ar�y subsidiary ta create, ar authori�e the creatior� af, af issue ar abliga�e itself �a issue, ar�y
shares nf ar�y ciass ar series nf capital stack, ar se�l, transfer ar otherwise clispase of any capi�al
stack af any direct ar in�IireCt subsi�Iiary af the Carparatian, ar pertr�i� ar�y direct or inciirect
subsidiary �a seli, Iease, transfer, excIusi�eIy license c�r atherwise clispnse (i� a single trar�sactian
or series of related tra�sactions) of aIl or substa�tially aIl of �he assets of suc� subsidiary;
(k) cause nr pern�it any nf its subsidiaries tn, withnut apprnval
of the Board of Directors (including the approval of the Series A Directors), se1l, issue, sponsor,
create or distribute any digital tokens, cryptocurrency or other blockchain-based assets
(col�ectively, "Tokeras"�, including through a pre-sa�e, initial coin offering, token distribution
event nr crnwdfunding, nr thrnugh the issuance nf any insh�ent cnnvertibie intn nr exchangeabie
for Tokens; or
(�) enter into any h'ansaction not in the ordinary course of
business invniving the pa}�ent, cnntributinn nr assignrnent by the Cnrpnratinn nr tn the
Corporation in an aggregate amount greater than $1 QO,QOQ.
4. 4ptioraat Coraversion. T'he hniders nf the Preferred Stnck sha�l have
conversion rights as foiiows (the "Conversiora Rights"�:
4.1 Right to Convert.
(a) Conversiora Ratio. Each share nf Preferred Stnck sha�l be
cnnvertibie, at the nptinn nf the hnider therenf, at any tirr�e and frnrn tirr�e tn tirne, and withnut the
payment of additional consideration by the holder thereof, into such number of fu11y paid and non-
assessable shares of Common Stock as is determined by with respect to the Series A Preferred
Stock, dividing the Series A Original �ssue Price by the Series A Conversion Price (as defined
below) in effect at the ti�ne of conversion. The "Se�ies A Conversion Price" shall initially be equal
tn $19.42 per share. Such initial Series A Cnnversinn Price, and the rate at which shares nf Series
A Preferred Stnck rnay be cnnverted intn shares nf Cnrr�rr�nn Stnck, shall be subject tn adjusi�ent
as provided below. The 5eries A Conversion Price are frorr� time to tirr�e, referred to as the
"Conversion P�iee" and each individually, as the "Applieable Cnnve�sinn Price."
(b) Termiraation of Conversiora Rights. In the event of a
fiquidation, dissolution or winding up of the Corporation or a Dee�ned Liquidation Event, the
Conversion Rights sha1T terminate at the close of business on the last fu1l day preceding the date
f�ed fnr the payrr�ent nf any such arr�nunts disi�ibutable nn such event tn the hn�ders nf Preferred
Stnck; prnvided that the fnregning tern�inatinn nf Cnnversinn Rights sha�l nnt affect the arnnunt(s)
ntherwise paid nr payabie in accnrdance with Sectinn 2.1 tn hnlders nf Preferred Stnck pursuant
to such �iquidation, dissoiution or winding up of the Corporation or a Deerr�ed Liquidation Event.
4.� F�actional Sha�es. No fractional shares of Common Stock sha1T be
issued upon conversion of the Preferred Stock. In Iieu of any fractional shares to which the holder
would otherwise be entitled, the Corporation sha11 pay cash equal to such fraction �nultiplied by
the fair market value of a share of Common Stock as determined in good faith by the Board of
Directors of the Corporation. Whether or not fractional shares would be issuable upon such
cnnversinn shall be deterrr�ined nn the basis nf the tntal nurnber nf shares nf Preferred Stnck the
hnider is at the tirne cnnverting intn Cnrr�rr�nn Stnck and the aggregate nurnber nf shares nf
Common Stock issuable upon such conversion.
'�.3 Meehanies of Conversiora.
(a) Notice of Conversiora. In order for a ho�der of Preferred
Stock to voluntarily convert shares of Preferred Stock into shares of Common Stock, such holder
shall (a) pravicle written r�a�iee �n the Cnrparatian's trar�sfer ager�� at the aifice af �ie trar�sfer agent
for t�e Preferred Stock (or at the principai office of the Corporation if the Corporatior� serves as
its own transfer a�ent) that suc� holder elects to convert al� or any r�umber of such holcier's shares
af Preferreci S�ack ancl, if applicab�e, any event ar� which such car�versian is car�tinger�� ar�d (b), if
such �ialcler's s�iares are certif cated, surrencier the certificate ar certif ca�es far sueh s�iares of
Preferrecl Staek (ar, if suc� registered �iaider aileges tha� suc�i eertificate has beer� Ias�, s�alen ar
des�rayed, a Iast eertificate afficia�i� ar�d agreement reasar�ably aceeptable to �e Carpara�ian to
inclemnify �he Ca�pora�ian agair�st ar�y clai�n that may be �nac�e agair�st ��e Carporatian an aceount
of the allegec� loss, thefi or cies�ructior� of such certif ca�e), at the office of �he transfer agent for
�ie Preferred �tack (or at �e pr�ncipaI off ce of �ie Ca�paratian if t�ie Carpora.�ior� serves as its
ow� �rar�sfer ager�t). Sueh notice sha.11 state suc� halcler's r�ame ar ��ie r�ames af the narninees in
whici� su.c� halcler wishes the s�ares af Ca�n�nar� �iock ta he issued. If required by �he
Co�paratian, any certif ca�es surrer�clereci far conversian s�ail be enc�arsed ar accampar�ied by a
writter� insir��rr�er�t or instrr�arr�ents oftransfer, ir� forn� satisfactory to �he Corporatio�, du�y executed
by the registereci holcier or �is, l�er or i�s attorney cluly auihorizeci i� writi�g. The elose of busi�ess
or� �ie clate of reeeipt by the transfer agent (or by the Carparatiar� if �ie Ca�paratian serves as its
ow� transfer agent} nf such r�a�ice ar�d, if appiicable, certifcates (ar Ias� cer�ifca�e afficiavi� ar�d
agreement) shall be the ti�ne af cor�versian (the "Canversion Time"), an�i tl�e shares af Cc��n�na�
Stock issuable upor� conversior� of the specifieci s�ares shall be deerr�ed to be outstar�ding of record
as of suc� ciate. The Corporaiion s�ali, as soon as practicable after the Conversion Tirr�e (i) issue
anc� c�eiiver to such ho�der of Preferred Stock, or to his, her or its norr�inees, a notice of issua�ce of
uncertifcated shares a�d may, upo� written request, issue anci cleliver a certificate for ��e number
af fiz1I s�ares af Carmm�n �tack issuable upar� �uc� car��ersiar� ir� aceordance with the pravisians
hereaf ar�d, may, if applicable ar�d upar� w�itten reques�, issue ar�d cle�i�er a certifica�e far �ie
number (if ar�y) of the s�ares of Preferreci Stocl� represer�ted by any surre�c�erec� certif cate t�at
were no� converted into Comrr�or� S�ock, (ii) pay ir� cash such amount as proviciec� in Sec�ior� 4.2
in lieu of a�y fraction of a share of Corr�rr�on Stock otherwise issuable upor� such conversion a�d
(iii) pay ail accrueci but ur�paici Accruing Dividenc�s (whether or r�ot declarec�) ar�d ali other cieclareci
but unpaid dividend.s an the shares of Series A Preferred �tacl� cor�vertecl.
(b) Rese�vation of Shares. 'I`he Carparatian sha1l at all tirr�es
when �ie Preferrecl Stack s�aII be auts�ar�ding, reserve ar�d keep available aut ai its au�har�zed but
unissued eapitai s�ack, far �he purpase af effec�ing �e eonversiar� af �he Preferred Stack, suc�
number ai i�s ciuIy au�harized s�ares of Cornrnan Stack as s�aIl frorn �irne ta ti�ne be suff cier�� ta
effect �he cor�version of aI� outstancli�g Preferreci Siock; a�d if at any time the number ofauihorized
but unissued s�ares nf Camman Stock shali r�ot be suificien� ta effect ��e ca�versian c�f a�� �er�
autstanciir�g shares af �e Preferred Stock, �he Corpora�iar� sha�l �a.ke such carporate aetior� as rr�ay
be necessary ta increase its au�har�zecl but ur�issuecl shares of Co�nrnon Stnck ta �uc� r�umber af
shares as shal� be sufficient far sueh purpases, including, witi�out 1imi�a�ian, engaging ir� best
eifi'c�rt� �a nbtain the requisite s�ackhaider appraval nf a�y necessary amenc��nen� to thi� Certificate
of Incorporation. Before taking any actior� w�ich woulc� cause an adjustment reciucing the
Applicable Conversior� Price below the then par value of t�e shares of Corrfmo� Siock issuable
upc�n canversian af the Pre%rred S�ack, the Ca�pnratic�n wiil talce ar�y ea�parate ac�ia� whicl� �nay,
i� the apir�inn of its caunsei, be necessary i� arcler �hat t�e Corporatian may valiclly ar�d Iegally
issue fizlly paid a�ci �or�-assessab�e shares nf Carn�nan Stack at such adjusted AppIicable
Conversio� Price.
10
(c) Effect of Conversiora. Al� shares of Preferred Stock which
sha11 have been surrendered for conversion as herein provided shall no longer be dee�ned to be
outstanding and a11 rights with respect to such shares shall immediately cease and terminate at the
Cnnversinn Tirne, except nn�y the right nf the hn�ders therenf tn receive shares nf Cnr�u�nn Stnck
in exchange therefnr, tn receive pay�ent in lieu nf any fractinn nf a share ntherwise issuabie upnn
such cnnversinn as prnvided in S�C�IOII �.2 �tlf� �O I'OC�iV� p�}'111�ri� Of ��l �CCI'lT�f� �?lTi iltip�lf�
Accruing Dividends (whether nr nnt dec�ared and as applicabie) and all nther dividends declared
but unpaid therenn. Any shares nf Preferred Stnck sn cnnverted sha�l be retired and cance�led and
may not be reissued as shares of such series, and the Corporation may thereafter take such
appropriate action (without the need for stockholder action) as rr�ay be necessary to reduce the
authnrized nwr�ber nf shares nf Preferred Stnck accnrdingly.
(d) Nn Fu�the� Adjustment. Upon any such conversion, no
adjusi�ent tn the App�icabie Cnnversinn Price shall be rnade fnr any Accruing Dividends (as
app�icable) or any other declared but unpaid dividends on the Preferred Stock swrendered for
conversion or on the Common Stock delivered upon conversion.
(e) T�,xes. The Cnrpnratinn shal� pay any and all issue and nther
sirniiar taa�es that rr�ay be payabie in respect nf any issuance nr delivery nf shares nf Cnrr�rr�nn
Stock upon conversion of shares of Preferred Stock pursuant to this Section 4. The Corporation
shall nnt, hnwever, be required tn pay any tax which rnay be payable in respect nf any transfer
invnived in the issuance and de�ivery nf shares nf Cnr�u�nn Stnck in a narr�e nther than that in
which the shares of Preferred Stock so converted were registered, and nn such issuance nr delivery
shall be rr�ade un�ess and until the persnn nr entity requesting such issuance has paid tn the
Cnrpnratinn the arr�nunt nf any such tax nr has estab�ished, tn the satisfactinn nf the Cnrpnratinn,
that such tax has been paid.
4.4 Adjustments to Applieable Conve�sion Price for Diluting Issues.
(a) Speeiat Defaraitions. For purposes of this ARTICLE IV, the
following definitions sha11 apply:
(i) "Optiora" sha�� rnean rights, nptinns nr warrants tn
subscribe fnr, purchase or otherwise acquire Corr�rr�on Stock or Convertible Securities.
(ii) "Se�ies A D�iginal Issue Date" shall mean the date
on which the f�rst share of Series A Preferred Stock was issued.
(iii) "Coravertibte Securities" shall rr�ean any evidences
of indebtedness, shares or other sec�u-ities directly or indirectly convertible into or exchangeable
for Common Stock, but excluding Options.
(iv) "Additinnal Sha�es of Cnmmon Stnek" shall mean
aI1 shares of Common Stock issued (or, pursuant to 5ection 4.6 below, deemed to be issued) by
the Corporation after the Series A Original Issue Date, other than (1) the following shares of
Cnr�u�nn Stnck and (2) shares nf Cnr�u�nn Stnck deerned issued pw�suant tn the fn�inwing Optinns
and Cnnvertible Securities (clauses (1) and (2), C0�10C�iV��}', "Exempted Seeurities"�:
11
A. s�ares af Cn�n�nar� �tacic, Optians ar
Convertible Securities issuec� as a c�ividenc� or distribution on Series A Preferred S�ock;
B. s�iares af Cnrr�rr�ar� �tocl�, Optians ar
Convertible Securities issued by reasor� of a ciivicier�d, stock split, split-up or other distributior� or�
shares of Com�or� Stock that is covereci by Sectior� 4.5, 4_6, 4_7 or 4_8;
C. shares of Corr�rr�on Stock issued pursuani to a
Q�.�aIifed Public Offering;
D. shares of Comrr�on Stock or Opiions issuec� to
employees or ciirectors of, or cor�sulia�ts or advisors to, t�e Corporation or any of i�s subsic�iaries
pursu.ar�t tn a plan, agreerner�t ar arrar�ge�ner�� appraved by tl�e Board nf Directars nf the
Co�paratinn, incIucli�g �he appraval af the Series A Directars;
E. shares of Corn�non Stock or Convertible
�ecuri�ies ac�ally issued u.pnn �e exercise af ()p�iar�s or shares af Com�nan S�ack actu.aily issuecl
upan �he ca�versian ar exc�iar�ge af Car�vertible Securities, in eaeh case pravicieci su.c� issua.nce is
pursuar�t to the �erms of such Optior� or Cor�vertible Security;
F. s�ares af Ca�n�nar� �tacic, Optians ar
C�nvertible Securities issuecl as acquisitian cansicleratian pursuant to �ie acquisitia� of ar�a�ier
corporaiion by ihe Corporaiior� by rr�erger, purchase of substa�tiaily al� of the assets or other
rearganiza�iar� ar �n a jaint venture agreerr�er��, praviclec� �iat suc�i issua�ces are approvecl by t�ie
Boarcl of Directars af �e Carpnra�iar�, ir�cluding the apprava� of the Series A Direc�ors;
G. shares of Comrr�or� Stock, Options or
Can�ertible �ecurities issued ta banks, equip�ner�� Iessars ar ather fir�ar�cial ir�stit�atior�s, ar �a reai
praperty lessars, pursu.a�t to a debt fnar�cing, e�uiprr�er�� leasir�g ar real praperty leasi�g
�ransactian appraved by the B�ard af Directors af the C��pora�iar�, ir�cIuciir�g ��e appraval af �he
Series A Directors;
H. s�are� af Carr�rr�ar� �tack, Optians ar
Convertible Securities issued for charitable purposes approved by the Boarci of Directors of the
Cotporaiion, incIuciir�g �he approval of the Series A Directors;
�. shares af Carr�rr�a� �tacl�, Optians or
Convertible Securiiies issued in cor�nectior� with sponsorec� research, co�laboration, technologY
license, cievelopmer�t, OEM, rr�arketir�g or other similar agreements or straiegic part��ersi�ips
appravec� by �ie Baarcl af Directars af the Carparatian, i�clucli�g �he apprnval af �e �eries A
Directars; ar�d
J. shares of Com�o� Stock, Options or
Canvertible �ecuri�ies issuecl ta suppiiers ar third-party service praviders ir� canr�ectior� with the
provisior� of goocis or services pursuar�� �o �ransactions approveci by �e Boarci of Directors of the
Corporation, inclucii�g ��e approval of the Series A Directors.
12
4.S No Adjustmerat of Appticable Conversiora Priee. No adjustrnent in
the Applicable Conversion Price of any series of Preferred Stock shall be made as the result of the
issuance or deemed issuance of Additional5hares of Common Stock if the Corporation receives
written nntice frn�n at least a rnajnrity nf the nutstanding shares nf such series nf Preferred Stnck
agreeing that nn such adjustrnent tn the Applicabie Cnnversinn Price shall be �nade as the result nf
the issuance nr deerr�ed issuance nf such Additinnal Shares nf Cnrrunnn Stnck.
4. � Deemed Issue of Additional Shares of Commora Stoek.
(a) �f the Corporation at any time or from time to time after the
Series A Original Issue Date, shal� issue any Optinns nr Cnnvertible Secw�ities (excluding Optinns
or Convertible Secw'ities which are therr�se�ves Exe�npted Secut�ities) or sha�l f� a record date for
the detern�inatinn nf hnlders nf any class nf secw�ities entitled tn receive any such Optinns nr
Convertible Sec�u-ities, then the maximum nurr�ber of shares of Common Stock (as set forth in the
instrument relating thereto, assuming the satisfaction of any conditions to exercisability,
convertibility or exchangeability but without regard to any provision contained therein for a
subsequent adjust�ent of such nwr�ber) issuabie upon the exercise of such Options or, in the case
nf Cnnvertibie Secw�ities and Optinns therefnr, the conversion or exchange of such Convertible
Securities, sha�l be dee�ned tn be Additinnal Shares nf Cnrrunnn Stnck issued as nf the tirne nf such
issue or, in case such a record date sha1T have been fixed, as of the close of business on such record
clate.
(b) �f the terms of any Option or Convertible Sec�u-ity, the
issuance of which resulted in an adjustment to the Applicable Conversion Price pursuant to the
terms of Section 4.7, are revised as a result of an amendment to such terms or any other adjustment
pw�suant tn the prnvisinns nf such Optinn nr Cnnvertible SOCilI'liji �?lTi �xCIlTCIiri� �lTi0Til�iiC
adjustrnents tn such tertns pursuant tn anti-diiutinn nr si�niiar prnvisinns nf such Optinn nr
Convertible Sec�u-ity) to provide for either (1) any increase or decrease in the number of shares of
Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or
Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation
upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease
�?�COlriiri� �ffOCtiV�, i1i� App�iC��?I� COriV�I'Si0I1 PI'IC� COIriplTi�Cl lTpOri i1i� OI'i�iri�l iSSil� Of Si1CY1
Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall
be readjusted to such Applicable Conversion Price as would have obtained had such revised terms
been in effect upon the originaT date of issuance of such Option or Convertible Security.
Notwithstanding the foregoing, no readjustment pursuant to this clause (b) sha1T have the effect of
increasing the Applicable Conversion Price to an amount which exceeds the lower of (i) the
App�icabie Conversion Price in effect irr�ediately prior to the original adjust�ent �nade as a resu�t
of the issuance of such Option or Convertible Secw�ity, or (ii) the Applicabie Conversion Price that
would have resulted from any issuances of Additional Shares of Common Stock (other than
deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option
or Convertible Sec�u-ity) between the original adjustment date and such readjustment date.
(c) �f the terms of any Option or Convertible Sec�u-ity
(excluding Options or Convertible Secut�ities which are therr�seives Exe�npted Secw'ities), the
i�suance nf which did nnt resuit in an adjustrnent tn the Applicabie Cnnversinn Price pursuant tn
the tertns nf Sectinn 4.7 (either because the cnnsideratinn per share (detertnined pursuant tn Sectinn
13
4_8) nf the Additinnal Shares nf Cnrr�r�nn Stnck subject theretn was equal tn nr greater than the
Applicable Conversion Price then in effect, or because such Option or Convertible Sec�u-ity was
issued before the Series A Original Issue Date), are revised after the Series A Original �ssue Date
as a resu�t nf an arr�enci�nent tn such tertns nr any nther adjust�nent pursuant tn the prnvisinns nf
such Optinn nr Cnnvertible Security (but excluding autn�natic adjust�nents tn such tern�s pw�suant
to anti-dilution or sitniiar provisions of such Option or Convertible Security) to provide for either
(1) any increase in the nwr�ber nf shares nf Cnrrunnn Stnck issuabie upnn the exercise, cnnversinn
nr exchange nf any such Optinn nr Cnnvertible Security nr (2) any decrease in the cnnsideratinn
payable to the Corporation upon such exercise, conversion or exchange, then such Option or
Cnnvertible Secw�ity, as sn a�nended nr adjusted, and the Additinnal Shares nf Cnrr�nn Stnck
subject theretn (detern�ined in the rr�anner prnvided in Sectinn 4.6(a)) sha�l be dee�ned tn have been
iSSlT�f� �ffOCtIV� lTpOri SlTC�'l ii1CI'��5� OI' f��Cl'��5� �?OCOIrili1� �ffOCtiV�.
(d) Upnn the expiratinn nr tertninatinn nf any unexercised
Option or unconverted or unexchanged Convertible Security (or portion thereo� which resulted
(either upon its originaT issuance or upon a revision of its terms) in an adj�i.stment to the Applicable
Conversion Price pursuant to the terms of Section 4.7 the Applicable Conversion Price shall be
readjusted to such Applicable Conversion Price as would have obtained had such Option or
Convertible Security (or portion thereof} never been issued.
(e) If the nu�nber nf shares nf Cnrr�nn Stnck issuable upnn the
exercise, cnnversinn and/nr exchange nf any Optinn nr Cnnvertible Security, nr the cnnsideratinn
payabie to the Corporation upon such exercise, cnnversinn and/nr exchange, iS C��ClTI��?I� �i i1i�
ti�ne such Optinn nr Cnnvertible Secw�ity is issued nr arr�ended but is subject tn adjustrnent based
upnn subsequent events, any adjust�ent tn the Applicabie Cnnversinn Price prnvided fnr in this
Section 4.6 sha1T be effected at the time of such issuance or amendment based on such number of
shares or amount of consideration without regard to any provisions for subsequent adjustments
(and any subsequent adjust�ents shall be treated as prnvided in clauses (b) and (c) nf this Sectinn
4_6). If the nu�nber nf shares nf Cnrrunnn Stnck issuable upnn the exercise, cnnversinn and/nr
exchange nf any Optinn nr Cnnvertible Secw�ity, nr the cnnsideratinn payabie tn the Cnrpnratinn
upnn such exercise, cnnversinn and/nr exchange, cannnt be calcuiated at all at the ti�ne such Optinn
or Convertible Sec�u-ity is issued or amended, any adjustment to the Applicable Conversion Price
that would result under the terms of this Section 4.6 at the time of such issuance or amendment
shall instead be effected at the ti�ne such nu�nber nf shares and/nr arr�nw�t nf cnnsideratinn is first
C�Cil��bl� ��V�II if Sil�?j�Ci i0 SlT�?S�C�lT�Ili ��lTSh1l�IliS�, �SSiliTiiri� f0I' pi1TpOS�S Of C�Cil��tiri� Si1CY1
adjustrnent tn the App�icable Cnnversinn Price that such issuance nr a�nenci�nent tnnk place at the
time such calculation can first be made.
4.7 Adjustment of the Applieable Coraversion Priee Upon Issuaraee of
Additional Shares of Commnn Stock. In the event the Corporation sha1T at any time after the
Series A Original �ssue Date issue Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to Section 4.6), without consideration or
for a consideration per share less than the App�icable Conversion Price in effect i�ntnediately prior
to such issuance or dee�ned issuance, then the Applicabie Cnnversinn Price shali be reduced,
concwrently with such iSSil�, t0 � pi'1C� �C��ClTl�t�f� t0 i1i� Il��i'�St OII�-�'liltiC�T�f��Y1 Of � C�rit�
determined in accordance with the following formula:
14
cP2=cPi *�A+B�=�A+c�.
Fnr pw�pnses nf the fnregning fnrrnu�a, the fnlinwing definitinns shail appiy:
(a) "CP2" sha1T mean the Applicable Conversion Price in effect
irr�rnediately after such issuance nr deerned issuance nf Additinnal Shares nf Cnrr�rnnn Stnck
(b) "CP1" shal� rnean the App�icable Cnnversinn Price in effect
irr�rnediately prior to such issuance or deerned issuance of Additionai Shares of Corr�rnon Stock;
(c) "A" sha�l rnean the nurr�ber nf shares nf Cnrr�rr�nn Stnck
nutstanding irr�rr�ediate�y prinr tn such issuance nr deerr�ed issuance nf Additinnal Shares nf
Common Stock (treating for this puipose as outstanding aI1 shares of Common Stock issuable upon
exercise of Options outstanding immediately prior to such issuance or deemed issuance or upon
conversion or exchange of Convertible Securities (including the Preferred Stock) outstanding
(assuming exercise of any outstanding Options therefor) immediately prior to such issue);
(d) "B" sha1T mean the nurr�ber of shares of Common Stock that
wnuld have been issued if such Additinnai Shares nf Cnr�u�nn Stnck had been issued nr deerr�ed
issued at a price per share equal tn CP 1(deterrr�ined by dividing the aggregate cnnsideratinn
received by the Corporation in respect of such issue by CP1); and
(e) "C" shal� rr�ean the nw�ber nf such Additinnal Shares nf
Cnrr�rnnn Stnck issued in such transactinn.
'�.� Determinatiora of Consideration. For purposes of this Section 4.8,
the cnnsideratinn received by the Cnrpnratinn fnr the issuance nr deerr�ed issuance nf any
Additional Shares of Common Stock shall be computed as follows:
(a) Cash and Property: Such consideration shali:
(i) insofar as it consists of cash, be cnrnputed at the
aggregate arr�ount of cash received by the Corporation, exc�uding arr�ounts paid or payable for
accrued interest;
(ii) insnfar as it cnnsists nf prnperty nther than cash, be
computed at the fair market value thereof at the time of such issue, as determined in good faith by
the Board of Directors of the Corporation; and
(iii) in the event Additinnai Shares nf Cnrr�rnnn Stnck are
issued together with other shares or sec�u-ities or other assets of the Corporation for consideration
which covers both, be the proportion of such consideration so received, computed as provided in
clauses (i) and (ii) abnve, as deterrnined in gnnd faith by the Bnard nf Directnrs nf the Cnrpnratinn.
(b) Options and Convertible Sec�u-ities. The consideration per
share received by the Corporation for Additional Shares of Common Stock deemed to have been
issued pursuant tn Sectinn 4.G, relating tn Optinns and Cnnvertible Securities, shaii be detern�ined
by dividing:
15
(i) The tntal a�nnunt, if any, received nr receivable by
the Corporation as consideration for the issue of such Options or Convertible Securities, plus the
minimum aggregate amount of additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a subsequent adjust�ent of such
consideration) payable to the Corporation upon the exercise of such Options or the conversion or
exchange nf such Cnnvertible Secw�ities, nr in the case nf Optinns fnr Cnnvertible Secw�ities, the
exercise nf such Optinns fnr Cnnvertible Securities and the cnnversinn nr exchange nf such
Convertible Secw�ities, by
(ii) the maximum number of shares of Common Stock
(as set forth in the inst�-uments relating thereto, without regard to any provision contained therein
for a subsequent adjustment of such number) issuable upon the exercise of such Options or the
conversion or exchange of such Convertible Secur�ties, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertibie Securities and the conversion or exchange
of such Convertible Secw�ities.
4.� Muttipte Closing Dates. In the event the Corporation shal� issue on
�nnre than nne date Additinnal Shares nf Cnrrunnn Stnck that are a part nf nne transactinn nr a
series nf related transactinns and that wnuld result in an adjust�ent tn the Applicabie Cnnversinn
Price pursuant to the terms of Section 4.7 then, upon the final such issuance, the Applicable
Cnnversinn Price shail be readjusted tn give effect tn ail such issuances as if they nccurred nn the
date nf the first such issuance (and withnut giving effect tn any additinnal adjust�ents as a result
nf any such subsequent issuances within such perind).
4.1 � Adjustment fn� Stock Splits and Combinatinns. If the Corporation
shall at any ti�ne nr frnrn tirr�e tn ti�ne after the Series A Origina� Issue Date effect a subdivisinn nf
the nutstanding Cnrrunnn Stnck, the Applicabie Conversion Price in effect i�ntnediately before that
subdivision sha1T be proportionately decreased so that the number of shares of Common Stock
issuable on conversion of each share of such series sha1T be increased in proportion to such increase
in the aggregate number of shares of Common Stock outstanding. �f the Corporation shall at any
time or from time to time after the Series A Original �ssue Date combine the outstanding shares of
Cnrrunnn Stnck, the App�icable Conversion Price in effect irr�rr�ediately before the corr�bination
sha11 be proportionately increased so that the number of shares of Common Stock issuable on
conversion of each share of such series sha1T be decreased in proportion to such decrease in the
aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection
sha11 become effective at the close of business on the date the subdivision or combination becomes
effective.
4. � l Adjustment for Certaira Dividerads arad Distributions. In the event
the Cnrpnratinn at any ti�ne nr frn�n ti�ne tn tirr�e after the Series A Origina� Issue Date shal� rr�ake
or issue, or f� a record date for the detertnination of ho�ders of Corr�on Stock entitled to receive,
a dividend nr nther dist�ibutinn payabie nn the Cnrr�nn Stnck in additinnal shares nf Cnrr�nn
Stnck, i1i�I1 �TiCI iri ��CYI Si1CY1 �V�rit �Yl� AppliC��?I� COIIV�I'SIOri PI'IC� iri �ffOCt lIT]Iri�f�l�i�ly �?�fOI'�
such event sha1T be decreased as of the time of such issuance or, in the event such a record date
shall have been fia�ed, as nf the c�nse nfbusiness nn such recnrd date, by rnultiplying the Applicabie
COriV�I'Si0I1 PI'IC� i1i�I1 iri �ffOCt �?y � fP�CilOri:
16
(i) the nwr�eratnr nf which sha�l be the tnta� nwr�ber nf
shares of Common Stock issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date, and
(ii) the denominator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date plus the number of shares of Common Stock issuable
in pa}�ent of such dividend or distribution.
Notwithstanding the foregoing (a) if such record date sha11 have been fixed and such
dividend is nnt fuliy paid nr if such distributinn is nnt fu�ly rr�ade nn the date f�ed therefnr, the
App�icabie Cnnversinn Price sha�l be recn�nputed accnrding�y as nf the c�nse nf business nn such
recnrd date and thereafter the App�icabie Cnnversinn Price sha�l be adjusted pursuant tn this
subsection as of the time of actual payment of such dividends or distributions; and (b) that no such
adjustment shall be made if the holders of Preferred Stock simultaneously receive a dividend or
nther distributinn nf shares nf Cnrr�nn Stnck in a nwnber equal tn the nwr�ber nf shares nf
Cnrrunnn Stnck as they wnuid have received if aII nutstanding shares nf Preferred Stnck had been
cnnverted intn Cnrrunnn Stnck nn the date nf such event.
4, i 2 Adjustments for 4ther Dividerads arad Distributioras. In the event
the Cnrpnratinn at any ti�ne nr frn�n ti�ne tn tirr�e after the Series A Origina� Issue Date shal� rr�ake
or issue, or fix 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 a distribution
ofshares of Common Stock in respect ofoutstanding shares ofCommon Stock) or in otherproperty
and the provisions of Section 1 do not apply to such dividend or distribution, then and in each such
event the hnlders nf Preferred Stnck sha�� receive, si�nuitanenusiy with the distributinn tn the
holders of Corr�rnon Stock, a dividend or other dist�ibution of such securities or other property in
an ari�ount equal to the amount of such sec�u-ities or other property as they would have received if
aI1 outstanding shares of Preferred Stock had been converted into Common Stock on the date of
such event.
4.I3 Adjustment for Merge� o� Renrganization, etc. Subject to the
provisions of Section 2.3, if there shall occur any reorganization, recapitalization, reclassif cation,
conso�idation or �nerger invoiving the Corporation in which the Corrunon Stock (but not the
Preferred Stock) is converted into or exchanged for secut�ities, cash or other properiy (other than a
transactinn cnvered by Sectinns 4.11 nr 4.12), then, fnlinwing any such renrganizatinn,
recapitalization, reclassification, consolidation or �nerger, each share of Preferred Stock shal�
thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such
event into the kind and atnount of secut�ities, cash or other property which a holder of the nutnber
nf shares nf Cnrrunnn Stnck nf the Cnrpnratinn issuable upnn cnnversinn nf nne share nf Preferred
Stock irrunediately prior to such reorganization, recapitalization, reclassifcation, conso�idation or
�nerger would have been entitled to receive pw�suant to such transaction; and, lri SlTC�'l C�S�,
apprnpriate adjustrnent (as detertnined in gnnd faith by the Bnard nf Directnrs nf the Cnrpnratinn)
sha11 be made in the application of the provisions in this Section 4 with respect to the rights and
interests thereafter of the ho�ders of the Preferred Stock, to the end that the provisions set forth in
this Section 4(including provisions with respect to changes in and other adjust�nents of the
Appiicabie Cnnversinn Price shall thereafter be applicabie, as neariy as reasnnably rr�ay be, in
17
reiation to any securities or other property thereafter deiiverabie upon the conversion of the
Preferred Stock.
4.1 � Certifieate as to Adjustmerats. Upon the OCCUti'�riC� of each
adjustment or readjustment of the Applicable Conversion Price pursuant to this Section 4, the
Corporation at its expense shall, as promptly as reasonably practicable but in any event not Iater
than ten (1Q) days thereafter, compute such adjustment or readjustment in accordance with the
terrr�s hereof and furnish to each holder of Preferred Stock a certif cate setting fnrth such
adjust�ent or readjustrnent (inciuding the kind and arr�ount of securities, cash or other property
into which the Preferred Stock is convertible) and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable
after the written request at any time of any holder of Preferred Stock (but in any event not Iater
than ten (10) days thereafter), furnish or cause to be furnished to such holder a certificate setting
fnrth (i) the Applicabie Cnnversinn Price then in effect, and (ii) the nurnber nf shares nf Cnrr�rr�nn
Stnck and the arr�nunt, if any, nf nther securities, cash nr prnperty which then wnuld be received
upon the conversion of Preferred Stock.
4.1 S Notice of Reeord Date. In the event:
(a) the Cnrpnratinn shall take a recnrd nf the hniders nf its
Cnrr�rnnn Stnck (nr nther capita� stnck nr securities at the tirr�e issuable upnn cnnversinn nf the
Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any
class or any other sec�u-ities, or to receive any other security; or
(b) of any capital reorganization of the Corporation, any
reclassif cation of the Common Stock of the Corporation, or any Deemed Liquidation Event; or
(c) of the voluntary or involuntary dissolution, Iiquidation or
winding-up of the Corporation,
then, and in each such case, the Corporation will send or cause to be sent to the holders of the
Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend,
distribution or right, and the ari�ount and character of such dividend, distribution or right, or (ii) the
effective date on which such reorganization, reclassification, consolidation, rr�erger, transfer,
dissolution, Iiquidation or winding-up is proposed to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other capital stock or securities at the
time issuable upon the conversion of the Preferred Stock) sha1T be entitled to exchange their shares
of Common Stock (or such other capital stock or sec�u-ities) for securities or other property
deliverable upon such reorganization, reclassif cation, consolidation, merger, transfer, dissolution,
liquidatinn nr winding-up, and the arnnunt per share and character nf such exchange applicabie tn
the Preferred Stnck and the Cnrr�rr�nn Stnck. Such nntice shall be sent at �east ten (14) days prinr
to the record date or effective date for the event specif ed in such notice.
5. Mandatory Conversiora.
5.1 Trigger Everats. Upon either (a) the ciosing of the saie of shares of
Common Stock to the public at a price of at least $77.68 per share (subject to appropriate
18
adjustrnent in the event nf any stnck dividend, stnck sp�it, cn�nbinatinn nr nther si�ni�ar
recapitalization with respect to the Common Stock), in a firm-commitment underwritten public
offering pursuant to an effective registration statement under the Securities Act of 1933, as
atnended, or resulting in at least $25,004,040 of gross proceeds to the Corporation (a "Qualified
Publie 4fferirag") or (b) the date and ti�ne, or the occwrence of an event, specif ed by vote or
written cnnsent nf the Requisite Hnlders (the ti�ne nf such cinsing nr the date and tirne specified
or the tirr�e of the event specif ed in such vote or written consent is referred to herein as the
"Mandatory Coraversion Time"), then (i) all outstanding shares of Preferred Stock sha�l
automaticalTy be converted into shares of Common Stock, at the then effective conversion rate as
calculated pursuant tn Sectinn 4.1(a) with aIl accrued but unpaid Accruing Dividends (whether nr
nnt declared and as app�icabie) and ali nther declared but w�paid dividends therenn paid in cash tn
i1i� �xt�rit ri0i �IT��CIy p�lf� iil fll�� iri �CCOI'CI�t1C� Wi�YI Si1bS�Cii0I12.1, and (ii) such shares rr�ay nnt
be reissued by the Cnrpnratinn.
S.2 Procedurat Requiremerats. A�� ho�ders of record of shares of
Preferred Stock shall be sent written notice of the Mandatory Conversion Time and the place
designated for mandatory conversion of aI1 such shares of Preferred Stock pursuant to this Section
5. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time.
Upon receipt of such notice, each holder of shares of Preferred Stock in certificated form shall
swrender his, her or its certif cate or certificates for al� such shares (or, if such holder alleges that
Si1CY1 C�IiifiC�t� Y1�S b��ri �nst, stn�en nr destrnyed, a�nst certifcate affidavit and agreerr�ent
reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may
be made against the Corporation on account of the aTTeged 1oss, theft or destnzction of such
certificate) to the Corporation at the place designated in such notice, provided, however, that any
faiTure by a holder to comply with these provisions shall not have any effect on the automatic
cnnversinn nf such hn�der's shares, which shali in any event be deerned tn have cnnverted,
autnrnaticaliy and withnut any further actinn nn the part nf the hnider nr the Cnrpnratinn, in
accordance with Section 5.1 above. If so required by the Corporation, any certificates surrendered
for conversion sha1T be endorsed or accompanied by written instrument or instruments of transfer,
in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its
attnrney duly authnrized in writing. A�l rights with respect tn the Preferred Stnck cnnverted
pw�suant tn Sectinn 5.1, inc�uding the rights, if any, tn receive nntices and vnte (nther than as a
hnlder nf Cnrrunnn Stnck), wiil tern�inate at the Mandatnry Cnnversinn Tirr�e (nntwithstanding the
fai�ure of the holder or ho�ders thereof to swrender any certificates at or prior to such tirr�e), except
only the rights of the holders thereof, upon surrender of any certificate or certif cates of such
ho�ders (or lost certificate aff davit and agreerr�ent) therefor, to receive the ite�ns provided for in
the next sentence nf this Sectinn 5.2. As snnn as practicable after the Mandatnry Cnnversinn Ti�ne
and, if applicable, �Yl� Si1Ti�rif��1' Of �Ti}' C�I`�ifiC�i� Ol' C�IilfiC�i�S �Ol' �OSi C�IilfiC�t� �ffiCl�Vit �TiCI
agreernent) for Preferred Stock, the Corporation sha�l (a) issue and deliver to such holder, or to
his, her or its norr�inees, a notice of issuance of uncertif cated shares and �nay, upnn written request,
issue and deliver a certif cate for the number of fu1l shares of Common Stock issuable upon such
conversion in accordance with the provisions hereof, (b) pay cash as provided in Section 4.2 in
lieu nf any fractinn nf a share nf Cnrr�nn Stnck ntherwise issuabie upnn such cnnversinn and (c)
pay ai� unpaid Accruing Dividends (whether nr nnt declared) and all nther dec�ared but unpaid
dividends nn the shares nf Preferred Stnck cnnverted. Such cnnverted Preferred Stnck shal� be
retired and cancelled and may not be reissued as shares of such series, and the Corporation may
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thereafter take such appropriate action (without the need for stockholder action) as rnay be
necessary to reduce the authorized nurr�ber of shares of Preferred Stock accordingly.
G. Rederreption.
G,1 General. Un�ess prnhibited by De�aware law gnverning
distributions to shareholders, shares of Preferred Stock sha1T be redeemed by the Corporation at a
price equal to the greater of (A) the Series A Original �ssue Price per share plus aI1 Series A
Accruing Dividends unpaid thereon and plus a1T declared but unpaid dividends thereon, and (B)
the Fair Market Value (determined in the manner set forth below) of a single share of Series A
Preferred Stock as of the date (the "Electiora Date") of the Corporation's receipt of the Rederr�ption
Request (the "Redemptiora Priee") after receipt by the Corporation at any tirr�e on or after the fifth
anniversary nf the Series A Original Issue Date, frnrn the Requisite Hniders nf written nntice
requesting redemption of a1I shares of Preferred Stock (the "Redemption Reques�'). Upon receipt
of a Redemption Request, the Corporation shall apply a1T of its assets to any such redemption to
the extent nf aII shares nf Preferred Stnck nther than the Exciuded Shares (as defined beinw), and
tn nn nther cnrpnrate purpnse, except tn the extent prnhibited by Delaware Iaw gnverning
distributinns tn sharehn�ders. Any such rede�nptinn shali take place in three annual instail�nents,
with the frst such annua� instailrr�ent being nne day befnre the next anniversary nf the Series A
Original �ssue Date, with the date of each such installment being referred to as a"Redemption
Date." On each Rederr�ption Date, the Corporation shali redee�n, on a pro rata basis in accordance
with the nutnber of shares of Preferred Stock owned by each such ho�der, that nutnber of
nutstanding shares nf Preferred Stnck detertnined by dividing (i) the tntal nwr�ber nf shares nf
Preferred Stnck nutstanding irr�ediately prinr tn such Rede�nptinn Date, by (ii) the nu�nber nf
rernaining Rederr�ptinn Dates (including the Rederr�ptinn Date tn which such calcu�atinn applies);
ron vided, however, that Excluded Shares (as such term is defned in Subsection b.2) sha11 not be
redeemed and shall be excluded from the caTculations set forth in this sentence. �f on any
Rederr�ptinn Date De�aware �aw gnverning distributinns tn sharehniders prevents the Cnrpnratinn
frorr� redee�ning a�� shares of Preferred Stock to be redee�ned, then the Corporation shal� redee�n
shares of Series A Preferred Stock fro�n holders thereof pro rata based upon the aggregate
Rederr�ption Price of such shares of Series A Preferred Stock for which rederr�ption has been
requested, and then any such unredeemed shares sha1T be carried forward and redeemed (together
with other shares of Preferred Stock that are then due to be redeemed) at the next such Redemption
Date tn the fi��l extent nf legal�y avai�ab�e funds nf the Cnrpnratinn at such ti�ne in the sarr�e prinrity
of order. For purposes of this Subsection 6.1, the Fair Market Value of a singie share of Preferred
Stnck shal� be the a�nnunt that wnuld be payable tn the hnider nf such share with respect tn such
share under Subsection 2.1 hereof assuming the Iiquidation of the Corporation at the fair market
vaTue of the Corporation as of the �lection Date (the "Eleetinn Date Market Value"), as mut�ially
agreed upon by the Corporation and the Requisite Holders or, in the event that they are unable to
reach agree�nent, by an independent invest�ent bank, �CCOiltliiri� f11ii1 nr nther financing
institution (the "Yaluatiora Firm"� agreed to by the Corporation and the Requisite Ho�ders;
provided that in the event that the Corporation and the Requisite Holders are unable to mutually
agree on a Valuation Firm, the Corporation on the one hand and the Requisite Holders on the other
hand sha1T each select a VaTuation Firm and the two Valuation Firms sha1T mut�ially agree upon a
final Valuation Firm to determine such fair market value; provided further that in the event that
shares of Preferred Stock are not redeemed at any Redemption Date due to a default in payment
by the Cnrpnratinn nr because the Cnrpnratinn dnes nnt have suff cient legally availabie funds, the
20
Fair Market Va�ue nf each such share nf Preferred Stnck nnt redeerned at the Rederr�ptinn Date
sha11 be the greater of (x) the �Iection Date Market Value and (y) in the event that after such
Redemption Date there is any voTuntary or involuntary Iiquidation, dissolution or winding up of
the Cnrpnratinn nr Deerned Liquidatinn Event, the arr�nunt that wnu�d be payable tn the hnider nf
such share with respect to such share under Subsectinn 2.1 herenf at the tirne nf any such
subsequent voluntary or invo�untary �iquidation, disso�ution or winding up of the Corporation or
Deerr�ed Liquidatinn Event. Each nf the Requisite Hniders and the Cnrpnratinn shali prnvide the
Valuatinn Firrn with cnpies nf any dncwr�ents, anaiyses nr nther infnrn�atinn within its pnssessinn
or control that the Valuation Firm reasonably requests in order to resolve such dispute. The
Valuatinn Firn� shall rr�ake a detern�inatinn as snnn as practicabie after its engagerr�ent tn resnive
the dispute using custnrr�ary va�uatinn techniques fnr nther cnrr�panies nr businesses in the sarr�e
nr sirr�ilar industries as the Cnrpnratinn (and shali nnt appiy any discnw�t due tn the fact that the
securities rnay constitute "restricted securities" or rnay represent a rr�inority interest in the
Corporation). The Valuation Firm's determination sha1T be binding on aII of the holders of the
Corporation.
&.2 Redemption Notice. The Corporation sha1T send written notice of
the redemption (the "Redemptinn Notice") to each holder of record of Preferred Stock not Iess
than forty (4Q) days prior to each Redemption Date. Each Redemption Notice shall state:
(a) the nwr�ber nf shares nf Preferred Stnck he�d by the hn�der that
the Cnrpnratinn shail redeerr� nn the Redernptinn Date specif ed in the Redernptinn Nntice;
(b) the Redemption Date and the Redemption Price;
(c) the date upon which the holder's right to convert such shares
terminates (as determined in accordance with Subsection 4.1); and
(d) for holders of shares in certif cated form, that the holder is to
surrender to the Corporation, in the manner and at the place designated, his, her or its certificate
or certificates representing the shares of Preferred Stock to be redeerr�ed.
�f the Corporation receives, on or prior to the twentieth (2Qth) day after the date of delivery of the
Redemption Notice to a holder of Preferred Stock, written notice from such holder that such holder
elects to exciude frorr� the redernption provided in this Section G, sorr�e or all of his, hers or its
shares of Preferred Stock registered on the books of the Corporation in the name of such holder at
the time of the Corporation's receipt of such notice shall thereafter be "Excluded Sha�es."
Excluded Shares shall not be redeemed or redeemable pursuant to this Section 6, whether on such
Redemption Date or thereafter.
6,3 Surrender of Certificates; Payment. On or before the applicable
Rederr�ptinn Date, each ho�der of shares of Preferred Stock to be redeerr�ed on such Redernption
Date, unless such ho�der has exercised his, her or its right to convert such shares as provided in
Sectinn 4, sha�l, if a hnider nf shares in certificated fnrrn, swrender the certificate or certificates
representing such shares (or, if such registered holder aileges that such certif cate has been lost,
stnien nr destrnyed, a inst C�IiifiC�t� affidavit and agreernent reasnnabiy �CC�pi��?I� tn the
Corporation to indemnify the Corporation against any claim that may be made against the
21
COI'p01'�tlOri OIl �CCOlirit Of i1i� �1����f� �OSS, i1i�f� OI' f��Sh"ElCii0I1 Of Si1CY1 C�IiifiC�i�� t0 i1i�
Corporation, in the manner and at the place designated in the Redemption Notice, and thereupon
the Redemption Price for such shares shall be payable to the order of the person whose name
appears on such certifcate or certificates as the owner thereof. In the event �ess than al� nf the
shares of Preferred Stock represented by a certificate are redeerr�ed, � I1�W C�I'iifiC�i�, inshurr�ent,
or book enhy representing the unredeerned shares of Preferred Stock shail prorr�pt�y be issued to
such holder.
f�.4 Ri�hts Subsequent tn Redernptinn. If the Redernptinn Nntice sha�l
have been duly given, and if on the applicabTe Redemption Date the Redemption Price payabTe
upon redemption of the shares of Preferred Stock to be redeemed on such Redemption Date is paid
or tendered for payment or deposited with an independent payment agent with irrevocable
instructions so as to be available therefor in a timely manner, then notwithstanding that any
certificates evidencing any nf the shares nf Preferred Stnck sn ca�led fnr redernptinn sha�l nnt have
been surrendered, C�tVIf��I1CIS WI�YI 1'�SpOCt i0 SlTC�'l S�1'�S Of Pl'�f�IT0C1 StOCk S�'l��l C��S� i0 �CCI'lT�
after such Redemption Date and a11 rights with respect to such shares shall forthwith after the
Redemption Date terminate, except only the right of the holders to receive the Redemption Price
without interest upon surrender of any such certificate or certificates therefor provided that in the
event that shares of Preferred Stock are not redeemed due to a default in payment by the
Corporation or because the Corporation does not have sufficient Iegaily available funds, such
shares nf Preferred Stnck shal� rerr�ain nutstanding and shal� be entit�ed tn al� nf the rights and
preferences provided herein until redeemed.
7. Redeemed or 4therwise Aequired Shares. Any shares of Preferred Stock
that are redeerr�ed nr ntherwise acquired by the Cnrpnratinn nr any nf its subsidiaries shail be
automaticalTy and immediately cancelled and retired and shall not be reissued, sold or transferred.
Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted
tn the hniders nf Preferred Stnck fn��nwing redernptinn.
8. Waiver. Except as otherwise set forth herein, (a) if there is only one (1)
series of Preferred Stock issued and outstanding, any of the rights, powers, preferences and other
terrr�s nf the Preferred Stnck set fnrth herein rnay be waived nn beha�f nf a�l hn�ders nf Preferred
Stock by the affirmative written consent or vote of the holders of at least a majority of the shares
of Preferred Stock then outstanding and (b) at any time more than one (1) series of Preferred Stock
is issued and outstanding, any of the rights, powers, preferences and other terms of any series of
Preferred Stock set forth herein may be waived on behalf of a1I holders of such series of Preferred
Stock by the affirmative written consent or vote of the holders of at least a majority of the shares
nf such series nf Preferred Stnck then nutstanding.
9. Notiees. Any notice required or perrr�itted by the provisions of this
ARTICLE N tn be given tn a hnider nf shares nf Preferred Stnck shali be rr�ai�ed, pnstage prepaid,
to the post office address last shown on the records of the Corporation, or given by eiectronic
cnrr�rnunicatinn in cnrr�p�iance with the prnvisinns nf the Genera� Cnrpnratinn Law, and shall be
deemed sent upon such mailing or electronic transmission.
22
aRTIczE v
�ubjec� �n any adclitianal va�e rec�uirecl by this Certifcate nf Incarpora�ian ar By�aws, i�
fiart�ierar�ce ancl nat in Iimitatian af tl�e pawers canferred by statute, �he Board of Direetnrs is
expressly aut�orizeci to rr�ake, repeal, alter, amer�d anci rescir�d any or ai� of the By�aws of the
Corporaiion.
ARTICLE VI
�ubject ta ar�y additianal vn�e required by �is Certifca�e nf Inca�paratian, the nu.rr�ber af
directors of ��e Co�poratior� shal� be determined ir� ihe manr�er set forth in the Byiaws of ��e
Corporation. Each director shall be er�titled to one (1) vote on each �natter presenieci io the Board
afDirectars; pravicleci, �iowever, that, sa lang as �he halclers af �eries A Preferrecl Stacic are er�titlecl
�a eiec� the Series A Directars, �e affiirrr�ative �ate af the Series A Directars shall be requ.irecl fnr
�he authariza�ian by �e Baard af Directors af ar�y af the matters set fo�-�i in �ectian S.5 af the
Investars' Righis Agreement, da�ecl as af Oe�aber 20, 2023, by ar�d a�nar�g the Carparatiar� ancl the
ot�er parties there�o, as such agreement may be arr�enciecl frorr� tirr�e to iime.
ARTICLE VII
Electians af directars r�eed r�ot be by written baiiot ur�less the Bylaws af the Ca�paratian
shall sa pravide.
ARTICLE VIII
Meetir�gs af stackhalclers may be he1cl wi�ir� ar withaut the �tate af DeIaware, as the
ByIaws ai the Carpnration �nay pravicle. 'i'�e baoks af �ie Co�pora�ia� may be kept nutside �he
State of Delaware at sucl� place or places as rr�ay be designated frorr� �ime io tirr�e by tl�e Boarci of
Directors or in ti�e Bylaws of ti�e Corporaiion.
ARTICLE IX
Ta �he fuilest extent permitted by law, nn clireciar ar aificer af �ie Corparatian s�aIl be
persor�al�y liable to the Corporatior� or its stockholciers for mone�ary darrmages for any breac� of
ficiuciary duty as a direc�or or off cer. If the Genera� Corporation Law or a�y other �aw of�e State
of Delaware is amenclecl after approval by the stockholders of �his ARTICLE IX �o au�orize
corporaie actior� fi.�rt�er eliminati�g or lirr�itir�g ��e persor�a� liabiiity of directors or offcers, ther�
the liability ai a directar or officer af �he Corpara�iar� s�ia�l be eiimina�ed ar �imitecl ta �he fulles�
exter�t permitted by the General Corpora�ion Law as so arr�er�ded.
Any repea� ar tnadif catinn of ihe faregair�g pro�isians af ��is ARTICLE IX by the
s�nckhoiders af the Co�paratian sha1� nat adverseIy ai%c� ar�y right ar protectiar� of a clirec�ar ar
officer of the Corpora�ion existing ai the time of, or increase t�e liabiliiy of any director or officer
of ��e Corpora�ior� with respect to a�y acts or orr�issions of such director of off cer occurri�g prior
tn, su.c�i repeal ar rr�aclificatiar�.
23
ARTICLE X
To �e fuiies� extent per�nitteci by appiicabie �aw, �e Cnrpora�iar� shali pravide
incle�nnificatian af (ar�d advancerr�ent af expe�ses ta) clirec�nrs, aif cers anci ager�ts af �e
Corporaiion (anci any other persor�s to whicl� General Corporation Law permits the Corporaiion to
provide incierr�r�ificaiion) ��rough Byiaw provisions, agreerr�er�ts with suc� agents or other persons,
voie of stockholciers or clisir�teresteci directors or oiherwise, i� excess of the incierr�nifcaiior� a�d
advancemer�� o�ierwise permitted by �ec�ian 1�5 nf t1�e General Carporatian Law.
Any amendment, repeai or moc�ification of the foregoing provisions of this AATICLE X
shall na� (a} adverseiy affect ar�y rig�i� ar pra�ectia� af any directar, aff cer nr other agent af the
Ca�poratian existi�g at the tirr�e of such a�nencirr�er��, repeaI nr rr�aciification ar (b) ir�crease the
IiabiIity af any cliree�ar af �he Car�aaration with respect to a�y ac�s or o�nissiar�s af suc�i directar,
offcer or ager�t occurring prior to, suc� amenci�er�t, repeal or rnodifcatior�.
ARTICLE XI
'I`he Carparatian renaunees, ta tl�e fizliest exter�t permitted by �aw, any ir�terest ar
expectar�cy of the Corporation in, or in being offered an opporiu�ity to participate in, any Excluded
Opport�.ir�ity. Ar� "Excluded Opportunity" is a�y �natter, tra�saction or interest t�at is preser�ted
to, or acquirec�, creaiec� or cievelo�ed by, or which o�herwise corr�es i�to �e possession of (i) ar�y
direc�or of tl�e Corporation w�o is r�ot an err�ployee of �he Corporation or any of its subsiciiaries,
ar (ii) ar�y halcler of Preferred S�ack ar any part��er, rr�ember, directar, stocic�aider, empinyee,
aifiIiate ar agent nf ar�y suc� hnlcler, nther than samea�e wl�a is an err�p�ayee of ��e Carparatian
or any of iis subsidiaries (ihe persons ir� clauses � a�c� ii , collectively, "Covered Pe�sons"),
uniess such matter, transaction or i�terest is presenieci to, or acc�uirec�, ereatec� or clevelo�ed by, or
o�i�erwise cornes i�to t�e possession of, a Covered Persor� expressly and solely in such Coverec�
Person's capaci�y as a ciirector of t�e Corporatior� while such Covereci Persor� is performing
services in suc� capaeity. Any repeal or rr�adification af t�iis ARTICLE XI wi�i a�ly be praspective
ancl wi�l r�ot affec� the rights ur�der ti�is ARTICLE XI ir� effect at �he tirne af the occurrer�ce af any
actions or omissions to act giving rise io liabi�ity. Noiwithstanc�i�g anyihing to the cor�trary
cor�taineci e�sewhere in this Certifcate of I�corporatio�, �he affrmative vote of the Requisite
Holciers and ho�ders of ai least a rr�ajority of the shares of Series A Preferrecl Stock outsta�ding
wi�l be requ.irecl ta atner�d nr repeal, or ta adapt ar�y pravisians ir�cor�sister�� with this ARTICLE
XI.
ARTICLE XII
Unless t�e Co�poratior� consents in writing to �he seleciion of ar� a�tert�a�ive for�.irr�, ihe
Court of Char�cery ir� the State of Delaware shal� be ii�e sole anc� exciusive for�.�m for any
stackha�der (including a ber�eficiai nwner) tn bring (i) ar�y cieri�ati�e actian ar praeeecling braug�i�
ar� behalf af the Carpnra�iar�, (ii) any actia� asserting a clairn af breach of ficiuciary cluty nwecl by
any ciirector, offcer or o�er err�ployee of �e Corporation io ihe Corporation or the Co�poraiion's
stockhoiders, (iii) any actior� asser�ir�g a c�airr� agains� ihe Corporatior�, its direciors, off cers or
err�ployees arising pursuar�t to any provision of t3�e Delaware General Corporation Law or �i�is
Certificate af Ir�carparatian ar ti�e Carnpar�y's byIaws ar (iv) any actian assertir�g a ciairr� against
�ie Ca�para�ian, it� directars, officers ar e�npioyees gaverned by ��ie internal affairs dactrine,
2�
except far, as ta eac� af (i) thraug� (iv) abave, ar�y clairn as �n w�ich the Caurt af Chaneery
determi�es ihat there is an inciispensable party r�ot subject to �e jurisdiciior� of ihe Court of
Cma�cery (anci the inc�isper�sabie party cioes not conser�� to t3�e persor�a� jurisdiction of the Court of
Char�cery wi�iin ter� (10) days %llnwir�g suc�i determir�aiiar�), whic�i is vested in ��ie exc�usive
jurisdictian af a court ar fon��n o�ier �ia� tl�e Caurt af Chancery, ar fpr wl�ieh �he Caur� af
Cha�cery claes na� �iave subject rr�atter jurisclictian. If any prnvisiar� nr pravisiar�s nf this
ARTICLE XII sl�a�l be �eid �a be i�valid, illegal ar unenfarceable as appliec� tn ar�y persar� nr
entity ar circurr�stance for any reason w�iatsoever, �ier�, ta the fizlies� extent per�nitteci by Iaw, the
validity, Iegality anci enforceabiiity of such provisions in any other circumstar�ce and of the
remair�ir�g pravisior�s ai this ARTICLE XII (including, withaut Iirni�ation, eac� partion ai at�y
ser��er�ce c�f this ARTICLE XII car�taining any suc�i pravisior� held. �c� be ir��aIicl, illegaI ar
uner�farceabie tha� is r�at itself heid ta be in�alicl, il�egal or ur�enfarceab�e) anci the app�icatian of
suc� pravision tn at�ier persar�s ar entities anci circu.�nstances shali nn� in ar�y way be affected or
impairec� ihereby.
�*x�**x�����*���x�*����x�*��*�
25
Fxecution Version
I, THE UNDERSIGNED, being the incnrpnratnr, fnr the pwpnse nf fnrrr�ing a corporation
pursuant to the Delaware GeneraT Corporation Law, do make this Certificate of �ncorporation,
hereby acknowledging, decTaring, and certifying that the foregoing Certificate of Incorporatian is
my act and deed and that the facts herein stated are true, and have accordingly hereunto set
rr�y hand this 19th day of October, 2423.
�ncorporator
�
By : , � �` �
Nar�e: Jared Pnpe
26
� �����
�SHIELD
Attachment — "C"
Board of Managers Approval & Consent
4868-4531-3671.1
WRITTEN CONSENT
OF
THE MEMBERS
OF
WORK SHIELD, LLC
OCTOBER 18, 2023
The undersigned, as being the duly authorized representative of the members (the
Members Work Shield, LLC, a Texas Converting Entity
having not fewer than the minimum number of votes that would be necessary to take the below
actions at a meeting at which all members entitled to vote on the action were present and voted,
pursuant to the provisions of the Texas Business Organizations Code (the TBOC and the
Amended and Restated Limited Liability Company LLC
Agreement , do hereby waive notice of any meeting and consent to, adopt and approve the
following resolutions and the actions contemplated hereby as of the date set out above as if such
resolutions had been adopted as a duly convened meeting of the members of the Converting Entity,
Consent
holding of a meeting of the members of the Converting Entity.
Approval of Conversion
WHEREAS, the Members have reviewed and considered a proposal that the Converting
Entity convert Conversion into Work Shield, Inc., a Delaware corporation Converted
Entity , pursuant to the terms and provisions of the TBOC, the Delaware General Corporation
Law, the LLC Agreement, the Certificates of Conversion attached hereto as Exhibit A and Exhibit
B Certificates of Conversion the Certificate of Incorporation of the Converted Entity
attached hereto as Exhibit C Certificate of Incorporation and the Plan of Conversion
attached hereto as Exhibit D Plan of Conversion );
WHEREAS, the TBOC and the LLC Agreement provide that the Conversion may only be
effected by the Converting Entity upon the approval of the Members of the Plan of Conversion;
WHEREAS, after due consideration of the Conversion, the Certificates of Conversion, the
Plan of Conversion, and the Certificate of Incorporation, the Members are of the opinion that it
would be in the best interest of the Converting Entity to approve and authorize the Conversion, the
Certificates of Conversion, the Plan of Conversion and the Certificate of Incorporation;
NOW, THEREFORE, LET IT BE RESOLVED, that the Conversion, in accordance with
the terms and provisions of each of the Certificates of Conversion, the Plan of Conversion and the
Certificate of Incorporation, is hereby authorized and approved;
RESOLVED FURTHER, that each of Jared Pope and Travis Foster Authorized
Person is hereby authorized and directed, on behalf of the Converting Entity and in conjunction
with the Conversion, to convert the Converting Entity to the Converted Entity in accordance with
2
the terms and provisions of the Certificate of Incorporation, the Certificates of Conversion and the
Plan of Conversion for the purpose of effectuating the Conversion;
RESOLVED FURTHER, that each Authorized Person is hereby authorized and directed,
on behalf of the Converting Entity, to execute and deliver the Certificate of Incorporation, the
Certificates of Conversion and the Plan of Conversion; and
RESOLVED FURTHER, that each Authorized Person is hereby authorized and directed,
on behalf of the Converting Entity and the Converted Entity, to take all such further action and
execute such further documents, agreements and instruments as may be necessary or desirable to
carry out the intent and purpose of this Consent.
This Consent may be executed in any number of identical counterparts, each of which for
all purposes is to be deemed an original, and all of which constitute, collectively, one agreement.
The undersigned direct that this Consent be filed in the minutes of the proceedings of the
Members of the Converting Entity and it shall have the same force and effect as if a meeting were
held.
[Signature Pages Follow]
[Signature Page to Written Consent Work Shield, LLC]
4868-4531-3671.1
IN WITNESS WHEREOF, the undersigned Members have executed this Consent as of
the date first set forth above.
MEMBERS:
JARED S.POPE
By: _____________________________
Name: Jared S Pope
Title: Chief Executive Officer
Exhibit A
4868-4531-3671.1
Exhibit A
Certificate of Conversion Texas
Corporations Section ,�� E Q
P.O.Box 13697 �,�� �,.�
Austin, Texas 78711-3697 W � �`�,
'� !a
� � '�
Office of the Secretary of State
CERTIFICATE OF CONVERSION
Jane Nelson
Secretary of State
The undersigned, as Secretary of State of Texas, hereby certifies that a filing instrument for
Work Shield, LLC
File Number: 802945835
Converting it to
Work Shield, Inc.
File Number: [Entity not of Record, Filing Number Not Available]
has been received in this office and has been found to conform to law. ACCORDINGLY, the
undersigned, as Secretary of State, and by virtue of the authority vested in the secretary by law, hereby
issues this certificate evidencing the acceptance and filing of the conversion on the date shown below.
Dated: 10/24/2023
Effective: 10/24/2023
►
iyr�,?� �� 1
�V �K;f ~�
�l � ��t- ��,-�
� rQ % � ����'i .
����z ���
��I � #
�� ,
Jane Nelson
Secretary of State
Come visit us on the internet at https://www. sos. texas.gov/
Phone: (512) 463-5555 FaY: (512) 463-5709 Dial: 7-1-1 for Relay Services
Prepared by: Lisa Sartin TID: 10340 Document: 1297784450002
Filing#:80Z945835 Document#:1Z97784450002 Filed Qn 10�24�2023 recei�ed hy Upload
Farm 636
(Re�ised a5111}
Return in duplicate ta:
Secretary of State
P.�. Box 136g7
Austin, TX 7$711-3597
S 12 453-55SS
FAX: S12 453-57�9
Filing Fee; See Instructians
� �� � ��a
w..
� �
x; i
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.'
Certificate of Con�ersion
❑f a
Limited Liahility Company
Con�erting
to a
This spa�e resen+ed for offi�e use.
Can�erting Entity Infarmatian
The narne of the con�erting lirnited liability cornpany is:
Wark Shield, LLC
The jurisdiction af formation of the lirnited liability carnpany is : Texas
The date of formation of the limited liabiliry company is: February 26, 2a18
The file number, if any, issued to the limited liahility company by the secretary of state is: Q8Q2945835
Plan of Can�ersian—Alternati�e Statements
The limited liahility company named aho�e is con�erting to a: ✓❑ for-pmfit corporation
❑ professional corporation ❑ nonprofit corporation. The narne af the corporation is:
Wvrk Shield, Inc.
The corporation will he formed under the laws of : Delaware
❑ The plan af can�ersion is attached.
If the plan nf �on�ersion is not attached, the fallnwing statements rna.st he completed.
❑✓ Instead af attaching the plan of con�ersion, the lirnited liability carnpany certifies to the
following staternents:
A signed plan of con�ersion is on file at the principal place of husiness of the limited liability
cornpany, the can�erting entity. The address af the principal place of business of the lirnited liability
company is:
300 Crescent Caurt, 5uite 875
5treet or Mailing Address
Dallas
City
TX U5A 752Q1
State Cauntry Zip Cade
A signed plan of con�ersion will he on file after the con�ersion at the principal place of business af
the corporation, the con�erted entiry. The address of the principal place of business of the corporation
15:
3[X] Crescent Caurt, Suite 875
5rreer or Mceiling Ar�dress
Dallas
Ciry
TX LISA 7S2a1
Srare Counrry Zip Code
A copy of the plan of con�ersion will be furnished on written request without cost by the con�erting
Farm fi3G ¢
entity before the con�ersion ar by the can�erted entity after the can�ersion to any awner ar mernber of
the con�erting ar con�erted entity.
Certificate vf Farmatian far the Canverted Entity
❑ The con�erted entity is a Texas corporation. The certificate af formation of the Texas corporation
is attached to this certificate either as an attachrnent ar exhibit ta the plan of con�ersion, or as an
attachment ar exhibit to this certificate of con�ersion if the plan has not been attached to the certificate
af con�ersion.
Appra�al af the Plan af Cvn�ersion
The plan of con�ersion has heen appro�ed as required by the laws of the jurisdiction of formation and
the go�erning docurnents af the con�erting entity.
EfFeCtlVeileSS aF F�Illlg (5elect either A, s, or c.�
A. ❑✓ This document hecomes effecti�e when the document is accepted and filed hy the secretary af
state.
S. ❑ This document becomes effecti�e at a later date, which is not more than ninety (90} days from
the date af signing. The delayed effecti�e date is:
C. ❑ This docurnent takes effect upon the occurrence of the future e�ent or fact, other than the
passage of time. The 90th day after the date of signing is:
The following e�ent ar fact will cause the docurnent ta take effect in the rnanner described below:
Tax Certificate
� Attached hereto is a certificate frorn the cornptroller af public accounts that all taxes under title
2, Tax Code, ha�e been paid hy the limited liability company.
� In lieu of pm�iding the tax certificate, the corporation as the con�erted entity is liable for the
payrnent af any franchise taxes.
Execu�ian
The undersigned signs this document suhject ta the penalties imposed by law for the suhmission of a
materially false ar fraudulent instrument.
Date: 1�11912a23
�
Jared S. Pope, CE
Farm fi3G
Signature and title af autharixed person on hehalf of the
con�erting entity
Print Reset
Exhibit B
4868-4531-3671.1
Exhibit B
Certificate of Conversion Delaware
Delaware
The First State Page 1
2524946 8100F Authentication: 204431080
SR# 20233794151 Date: 10-23-23
You may verify this certificate online at corp.delaware.gov/authver.shtml
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF CONVERSION OF A TEXAS LIMITED LIABILITY
COMPANY UNDER THE NAME OF “WORK SHIELD, ”LLC TO A DELAWARE
CORPORATION, CHANGING ITS NAME FROM "WORK SHIELD, LLC" TO "WORK
SHIELD, INC.",FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF
OCTOBER, A.D. 2023, AT 4:13 O`CLOCK P.M.
State of Dela��are
Secretan� of 5tate
Di�ision of Corporations
STATE OF DELAWARF �eu��ere� aa:i3 p��7 io,�l3,zoz3
FILED 04:13 PhI 1D-23r2Q23
CERTIFICATE OF CONVERSION SR 2D233744151 - Filelumber 2sz4v�6
FROM A LIMITED LIABILITY COMPANY TU A
CORPORATION PURSUANT TO SECTION 265 OF
THE DELAWARE GENERAL C4RP4RATION LAW
1. The jurisdiction where the Iimited liabiTity corr�pany was f rst formed is
Texas
and the date the limited Tiability co�npany fust formed is ����u�ry 2s= 2Q�s
2. The jurisdictinn irnrnediately prinr tn fiiing this Certif cate is reXas
3. The name of the limited Iiability co�npany immediately prior to filing this
COIiIf C��O IS Wark Shield, LLG
4. The name of the corporation as set forth in the Certif cate of �ncorporation is
Work 5hield, [nc.
IN WITNESS WHEREOF, the undersigned have executed this Certifcate nn the
19th �y o f October , A.D. 2023
B�,' �"� : �� -=---
A�thor�zed erson
Name: �lared S. Pape
Print nr Type
Delaware
The First State
Page 1
2524946 8100F Authentication: 204431080
SR# 20233794151 Date: 10-23-23
You may verify this certificate online at corp.delaware.gov/authver.shtml
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWARE DO HEREBY CERTIFY THAT THE ATTACHED IS A TRUE AND
CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF “WORK
SHIELD, ”INC. FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF
OCTOBER, A.D. 2023, AT 4:13 O`CLOCK P.M.
State of Dela�-arf
Secrelai�r� of State
Di�ision of CorporatioQs
Delirered 04:I3 P]I I0�23.2023
FILED 04;13 PhI 10+'23!20Z3
SR 20233794151 - File \umber Z524946
CERT�FICATE QF INC(?RP(?RATIQN
o�
WORK SI�I�LD, INC.
ARTICLE I
'I`he r�arne af �is carparatian is Wari� ��iieid, Inc. (�ie "C(Ii�()P(,�%l0�'l")
ARTICLE II
The adciress nf �ie registerecl aifice af the Co�paratian ir� �he Sta�e af Delaware is Capi�a�
�ervices, Inc., 108 LakeIar�d Avenue, Dover, Kent Caunty, Delaware 19901.
ARTICLE III
Tl�e na�zre of �e busi�ess or purposes to be conciucted or promoteci is to engage in any
lawiul aci ar activi€y for whic� earporatia�s may be argar�izecl w�cler �he Ger�eral Carpnratian Law.
ARTICLE �V
The total number of shares of al� c�asses of s�ock which �e Corporaiior� shall have authority
�o issue is (i) 1,08 �,462 shares of Corr�rr�on Stock, $OA001 par va�ue per share ("Cnjnrraora Stock")
anci (ii) 3Q8,989 shares of Preferred Stock, �0.0001 par value per share ("Prefer�ed Stoek").
The failawir�g is a staterr�er�t af �ie designatio�s anci �e pawers, pri�i�eges ar�d rig�i�s, ar�d
�he quaIificatinns, Iimi�a�iar�s ar res�ric�ions ��iereaf ir� respect af eac�i class af capitai stacl� af �he
Carparation.
A. COMMON �TQCK.
1. Gene�al. T�e voiing, divicier�d ancI liquiciaiion rights of the hoiders of the
Commor� Stock are subject io a�d c�ualif ed by the rights, powers anc� preferences of ihe holciers of
�ie Preferred �tack set farth herein.
2. Vating. The �aiders af the Carr�mnn S�ack are er�titlecl ta ane (1) vc�te for
each share af Carr�mor� S�nck heid a� aII rr�ee�i�gs af stockl�alc�ers (ar�d written ac�iar�s in �ieu af
�nee�ir�gs); a�r vided, hawever, ti�a�, except as atherwise rec�uired by law, �ioIders af Carnr�o�
�tnck, as such, s�iall r�a� be er�titlec� �a va�e or� any arr�end�ner�� ta �his Certificate af Incarporatiar�
(this "Certificate of Incorporatiora") that relaies so�e�y to the terms of one (1) or rnore ou�sta�ding
series of Preferred Stock if t�e holciers of such affecied series are entitieci, either separate�y or
�age��ier with tl�e hoiders af ane ar �nare ather such series, ta vate therear� purs�zar�t ta t1�is
Certifica�e af Incarpara�iar� ar pursuar�t �a �ie General Corporatian Law. Ti�ere s�aIl be na
curr�ulative voting. The number nf au.��orizecl sl�ares ai Cnrnrr�or� �tack may be increased ar
decreased (but nnt beinw the nwr�ber nf shares therenf then nutstanding) by (in additinn tn any
vote of the holders of one (1) or more series of Preferred Stock that may be required by the terms
of this Certif cate of �ncorporation) the affirmative vote of the holders of shares of capital stock of
the Corporation representing a�najority of the votes represented by ail outstanding shares of capital
stnck nf the Cnrpnratinn entitled tn vnte, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law.
f���������1c�LiZi�
3Q8,989 shares of the authorized and unissued Preferred Stock of the Corporation are
hereby designated "Series A Preferred Stoek" with the foliowing rights, preferences, powers,
privileges and restrictinns, quaiifcatinns and �irr�itatinns. Unless ntherwise indicated, references
to "sections" or "subsections" in this Part B of this ARTICLE N refer to sections and subsections
of Part B of this ART�CLE N.
1. Dividends.
1.1 Series A Preferred Stock. Frorr� and after the date of the issuance
of any shares of Series A Preferred Stock, dividends sha1T accrue on such shares of Series A
Preferred Stock at the rate per annum of eight percent (8%) of the Series A Original �ssue Price
(as defined below) (the "Series A Acc�uing Dividends"). Series A Accruing Dividends sha1T
accrue from day to day, whether or not declared, and sha1T be cumulative; ron vided, however, that
except as expressly set fnrth in this Part B nf this ARTICLE IV, such Series A Accruing Dividends
shall be payable nn�y when, as, and if dec�ared by the Bnard nf Directnrs nf the Cnrpnratinn and
the Corporation shall be under no obligation to pay such Series A Accruing Dividends. For so long
as any shares of Series A Preferred Stock remain outstanding, the Corporation shall not declare,
pay or set aside any dividends on shares of Common Stock or declare, pay or set aside any
dividends on shares of any other class or series of capital stock of the Corporation unTess (in
additinn tn the nbtaining nf any cnnsents required elsewhere in this Certificate nf Incnrpnratinn)
(a) such dividend is apprnved by the Requisite Hn�ders (as defined belnw) and (b) the hniders nf
the Series A Preferred Stock then outstanding sha11 fust receive, or simultaneously receive, a
dividend on each outstanding share of Series A Preferred Stock in an amount at Teast equal to (A)
a cash dividend, on an as-converted to Common Stock basis, equal to the cash dividend paid on
the Cnrr�nn Stnck, (B) in the case nf a dividend nn any class nr series that is cnnvertible intn
Corrunon Stock, that dividend per share of Series A Preferred Stock as wou�d equal the product of
(1) the dividend payabie on each share of such ciass or series detern�ined, if applicable, as if ali
shares nf such c�ass nr series had been cnnverted intn Cnrrunnn Stnck and (2) the nurr�ber nf shares
of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case
calcu�ated on the record date for detern�ination of holders entitled to receive such dividend or (C)
in the case of a dividend on any class or series that is not convertible into Corrunon Stock, at a rate
per share nf Series A Preferred Stnck detertnined by (1) dividing the arr�nunt nf the dividend
payabie nn each share nf such class nr series nf capital stnck by the nriginal issuance price nf such
class or series of capital stock (subject to appropriate adjustrnent in the event of any stock dividend,
stock split, combination or other similar recapitalization with respect to such class or series) and
(2) rr�ultiplying such fraction by an atnount equa� to the Series A Origina� Issue Price; rnn vided
that if the Cnrpnratinn declares, pays nr sets aside, nn the sarr�e date, a dividend nn shares nf rr�nre
than nne class nr series nf capital stnck nf the Cnrpnratinn, the dividend payabie tn the hniders nf
�a
Series A Preferred Stnck pwsuant tn this Sectinn 1 sha�l be ca�culated based upnn the dividend nn
the class or series of capital stock that wo�Id res�It in the highest Series A Preferred Stock
dividend.
2. Liquidatinn, Dissnlution or Winding Up; Ce�tain Me�gers,
Cnnsolidations and Asset Sales.
2.1 P�eferential Payments to Hnlders of P�efe�red Stnek. �n the event
of any voluntary or involuntary liquidation, dissol�tion or winding up of the Corporation (as
defined below), the holders of shares of Series A Preferred Stock then o�tstanding shall be entitled
tn be paid nut nf the assets nf the Cnrpnratinn avaiiabie fnr distributinn tn its stnckhniders, and in
the event nf a Deerned Liquidatinn Event, the hniders nf shares nf Series A Preferred Stnck then
nutstanding shali be entitled tn be paid nut nf the cnnsideratinn payable tn stnckhniders in such
Dee�ned Liquidation Event or o�t of the Available Proceeds (as defned below), as applicable, on
a pari pass� basis, before any payment sha1T be made to the holders of Common Stock by reason
nf their nwnership therenf, with respect tn each share nf Series A Preferred Stnck, an arnnunt per
share equal tn the Series A Origina� Issue Price (as defined below), pius all accrued but unpaid
Series A Accruing Dividends (whether nr nnt declared) and a�l nther dividends declared but unpaid
therenn (the arnnunt payable pursuant tn this sentence is hereinafter referred tn as the "Series A
Liquidatinn Amnun�'). If upon any such liquidation, dissol�tion or winding �p of the Corporation
nr Deerned Liquidatinn Event, the assets nf the Cnrpnratinn availabie fnr distributinn tn its
stnckhn�ders sha�l be insufficient tn pay the hn�ders nf shares nf Series A Preferred Stnck the fi��l
axnnunt tn which they shal� be entitled under this Sectinn 2.1, the hniders nf shares nf Series A
Preferred Stnck shali share ratabiy in any distributinn nf the assets avaiiable fnr distributinn in
prnpnrtinn tn the respective arnnunts which wnuld ntherwise be payabie in respect nf the shares
held by them upon such distrib�tion if all amounts payable on or with respect to s�ch shares were
paid in f�II.
The "Series A Original 1'ssue Price" shall mean $19.42 per share, s�bject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other similar
recapitalization with respect to the Series A Preferred Stock.
`�.2 Payments tn Hnlders of Prefer�ed Stock and Common Stnek. In
the event nf any vnluntary nr invnluntary liquidatinn, dissnlutinn nr winding up nf the Cnrpnratinn
nr Deerned Liquidatinn Event, after the pay�ent nf the entire Series A Liquidatinn Arnnunt tn the
hnlders nf Series A Preferred Stnck pursuant tn Sectinn 2.1, the rernaining assets nf the Cnrpnratinn
available fnr distributinn tn its stnckhn�ders nr, in the case nf a Deerned Liquidatinn Event, the
consideration not payable to the holders of shares of Preferred Stock purs�ant to Section 2.1 or the
rernaining Avaiiable Prnceeds, as the case rnay be, shall be distributed arnnng the hniders nf the
shares nf Series A Preferred Stnck and Cnrr�rr�nn Stnck (inc�uding shares nf Cnr�unnn Stnck issued
nn cnnversinn nf Series A Preferred Stnck), prn rata based nn the nurnber nf shares he�d by each
such hn�der, �reating fnr this purpnse al� shares nf Series A Preferred Stnck as if they had been
cnnverted tn Cnrnrnnn Stnck pwsuant tn the terrns nf this Certif cate nf Incnrpnratinn ir�vnediately
prior to s�ch liquidation, dissolution or winding �p of the Corporation or Deemed Liquidation
Event; prnvided, hnwever, that if the aggregate arnnunt that the hniders nf Series A Preferred Stnck
wnuld ntherwise be entitled tn receive under Sectinns 2.1 and Sectinn 2.2 sha�� exceed the Series
A Participatinn'Threshnld (as defined be�nw), then, nntwithstanding anything in Sectinn 2.1 tn the
cnntrary, the holders of Series A Preferred Stock shali only be entitled to receive such portion (if
any) ofthe Series A Liquidation Amount as would not, when taken together with the amounts such
holders are entitled to receive under Sections 2.1 and 2 2 with respect to each share of Series A
Preferred Stock, exceed the Series A Participation Threshold (as defined below) (excluding, for
pw�pnses nf this deterrninatinn, the pay�ent nf any accrued but w�paid dividends nn shares nf
Series A Preferred Stock). As used herein, "Series A Participation Tlareshotd' rneans four (4)
tirr�es the Series A Ot�iginal Issue Price for the Series A Preferred Stock (subject to appropriate
adjust�ent in the event nf a stnck sp�it, stnck dividend, corr�bination, rec�assification, nr sirr�iiar
event affecting the Series A Preferred Stock).
2.3 Deemed Liquidation Events.
(a) Defaraition. Each nf the fn��nwing events shall be cnnsidered
a"Deemed Liquidation Event" unless the holders of at Ieast a majority of the outstanding shares
of Series A Preferred Stock, voting together as a single class on an as-converted basis (the
"Requisite Holders"), e�ect otherwise by written notice sent to the Corporation at least twenty (24)
days prinr tn the effective date nf any such event:
(i) a rnerger or consolidation in which:
A. the Corporation is a constit�ient party or
B. a subsidiary of the Corporation is a
cnnstituent party and the Cnrpnratinn issues shares nf its capitai stnck pw�suant tn such rr�erger nr
cnnsn�idatinn,
except any such merger or consolidation involving the Corporation or a subsidiary in which the
shares of capita� stock of the Corporation outstanding irr�rr�ediate�y prior to such rr�erger or
conso�idation continue to represent, or are converted into or exchanged for shares of capital stock
that represent, irr�rnediately foiiowing such rnerger or conso�idation, at �east a rr�ajority, by voting
power, of the capital stock of (1) the s�u-viving or resulting corporation; or (2) if the surviving or
resulting corporation is a wholTy owned subsidiary of another corporation immediately following
such merger or consolidation, the parent corporation of such surviving or resulting corporation; or
(ii) (1) the sa1e, Tease, transfer, exclusive Iicense or other
disposition, in a single transaction or series of related transactions, by the Corporation or any
subsidiary nf the Cnrpnratinn nf ali nr substantialiy ail the assets nf the Cnrpnratinn and its
subsidiaries taken as a whoie, or (2) the saie or disposition (whether by rr�erger, conso�idation or
ntherwise, and whether in a sing�e transactinn nr a series nf re�ated transactinns) nf nne nr rnnre
subsidiaries of the Corporation if substantialTy aT1 of the assets of the Corporation and its
subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sa1e,
lease, transfer, exciusive �icense nr nther dispnsitinn is tn a whnily nwned subsidiary nf the
Cnrpnratinn.
(b) Effecting a Deemed Liquidatinn Event.
(i) The Corporation shall not have the power to effect a
Deemed Liquidation Event referred to in Section 2.3 (a (��A unless the agreement or plan of inerger
ar car�salida�iar� far sueh trar�sactian (the "Merger Agreement") pravides �at the ear�sidera�iar�
payabie to the stockholders of the COij]02'a�i0ii iTt SUC�'t De�1T1f:C� LILjUiCla�i�?l Event shail be
allocatec� to the holciers of capital stock of �he Corporation in accorc�ar�ce wiih Sec�ior�s 2.1 anci
2.2.
(ii) Ir� �e even� of a Deemec� Lic�uidation Eve�� referreci
�o in Section 2.3 f a)(i)B or 2.3 a ii , if the Corporatior� does not effeci a ciissolu�io� of ��e
Ca�paratian under ��e Ger�eral Carparatian Law wi�hin r�ir�ety (90} ciays after such Deerned
Liquiclatian Ever�t, �her� (i) ��e Ca�paratian sha�� send a written nntice ta eaeh halcler af Preferred
S�ock no laier than the ninetieth (90�h) clay after the Deerr�eci Lic�uidatior� Event acivising sueh
ho�ders of their right (anci the requirerr�ents to be rrfet �o secure such righi) pursua�� to the �erms of
the following clause; (ii) to rec�uire the rede�p�ion of sucl� shares of Preferred S�ock, ar�d (iii) if
the Requisite Holclers so rec�uest in a wriiter� instr�.imeni cielivered to t3�e Co�poraiion noi la�er ihan
ane �ur�dreci twer�ty (120) days after such Deemeci Liquidatia� Event, ��e Corporatinn shaIi use
��e ca�sidera�ior� reeei�ed by t3�e Carparatiar� fc�r such Deemed Liquida�inn E�er�t (ne� af any
retained Iiabilities associateci with ��e assets so�d or teel�nology Iicenseci, as cietermi�ec� in good
faith by ��e Boarc� of Directors of the Corporation), toget�er wiih a�y otl�er assets of t�e
Corporation avaiiable for disiributior� to its stockholders, al� to �e extent permitteci by Delaware
law governir�g clistributions to stockl�o�ders (the "AvailabCe Proceeds"), on the one hundred fiftieth
(1SOt�) clay af�er sueh Deemed Liq�ziciatian Ever�t, tn recieerr� aii au.�s�anclir�g shares of Preferreci
��ack a� a. price per share equal to the appiicable aggregate a�na�ni such halcier oi Preferrecl Stock
is eniitlec� to receive uncier Section 2.1 ar�d Sectio� 2.2. Notwiths�ancii�g tl�e foregoing, i� the
event of a recierr�ptior� pursuar�t to the prececiing sentence, if the Avaiiable Proceeds are r�ot
suffcier�� to redeerr� ali outstanciing shares of Preferreci Stock, the Corporation s�all frst recieerr�
a�l of the outsta�ding shares of �eries A Preferred Stock, provic�ec� that if t3�e Available Proceeds
are nat su.ificient to recieern aii auts�anding shares af Series A Preferred Staek, �ie Cn�paratian
sha11 recleem a prc� rata partian af each �ialder's s�iares af Series A Preferred �tack ta the fuilest
exter�t of such Availab�e Proceec�s, �7aS�E� �ii ��'t� T�3�ieC�iV� �1ii0UTi�S W�'liC�i WOU�E� O��"i�I'WiS� �e
payable ir� respec� of the shares to be recieerr�ec� if �he Available Proceecis were suff cieni to recleerr�
ail such shares, a�d shall recieem t�e remair�ing shares of �eries A Preferred Stock as soon as it
rr�ay �awiul�y �Ia so un�ier De�aware law goverr�i�g clistribu�inns to s�ackl�oiders. Priar ta the
dis�-ibutian or re�Iemptiar� pravided for in this Seetion 2.3(blfi), ��e Carporatian shalI nnt expencl
ar dissipate the car�sidera�ic�n recei�eci for suc�i Deemed Liquiclatian Ever��, excep� to discl�arge
expenses incurred ir� canr�ec�iar� with such Deerr�ecl Liquida�ior� Event.
(c) Amaunt Deemed Puid or Distributed. Ii�he a�nour�t deetneci
�aid or c�is�-ibu�eci uncier �his Seciion 2.3(cl is rnade i� property other thar� ir� cash, the vaiue of
such distributior� sha1� be the fair rr�arket value of such property, determineci in good faith by the
Boarc� ofDirectors of the Corporaiion (including tl�e approval of the Series A Directors (as ciefi�eci
herein)) as faiiows:
(i) For securiiies r�ot subject to investrr�er�t letters or
o�er si�nilar restrictiar�s a� free rr�arl�etability:
A. if iraded ar� a seeurities exchange, the vaIue
shall be ciee�ned ta be i�ie average af the elasing prices af the seeurities ar� suc�i exc�iar�ge ar rnarket
aver the �iirty (30) day per�ac� enclir�g three (3) c�ay� pr�ar �c� �ie clasing nf such �ransactian;
B. if active�y traded nver-the-a�unter, the va�ue
sha11 be deemed to be the average of the closing bid prices over the thirty (30) day period ending
three (3) days prior to the closing of such transaction; or
C. if there is no active public market, the value
sha11 be the fair market value thereof, as determined in good faith by the Board of Directors of the
Corporation.
(ii) The method of valuation of securities subject to
investment Ietters or other similar restrictions on free marketabiTity (other than restrictions arising
snlely by virtue nf a stnckhnider's status as an aff liate nr fnrrner aff liate) sha�l take intn accnunt
an apprnpriate discnunt (as detern�ined in gnnd faith by the Bnard nf Directnrs nf the Cnrpnratinn)
frnrr� the rr�arket value as deterrnined pw�suant tn c�ause (c)(i) abnve sn as tn reflect the approxirnate
fair market value thereof.
(d) Altoeation of Eserow and Coratingerat Corasideratiora. In the
event of a Deemed Liquidation �vent pursuant to Section 2.3(a (�lA, if any portion of the
consideration payable to the stockholders of the Corporation is placed into escrow and/or is
payable nn�y upnn satisfactinn nf cnntingencies (the "Additional Corasideration"), the Merger
Agreernent shal� prnvide that (a) the pnrtinn nf such cnnsideratinn that is nnt Additinnai
Consideration (such portion, the "Iraitiat Corasideration'� sha�l be al�ocated axnong the holders of
capital stock of the Corporation in accordance with Sections 2.1 and 2.2 as if the Initial
Consideration were the only consideration payable in connection with such Deemed Liquidation
�vent; and (b) any Additional Consideration which becomes payabTe to the stocicholders of the
Corporation upon release from escrow and/or satisfaction of such contingencies shall be allocated
arnnng the hnlders nf capital stnck nf the Cnrpnratinn in accnrdance with Sectinns 2.1 and 2 2 after
talcing intn �CCOlirit �Yl� previnus pa}�ent nf the Initial Cnnsideratinn as part nf the sarne
transaction. For the purposes of this Section 2.3(d�, consideration placed into escrow or retained
as a holdback to be available for satisfaction of indemnification or similar obligations in
connection with such Deemed Liquidation Event shall be deemed to be Initial Consideration.
3. Voting.
3.1 General. On any rr�atter presented tn the stnckhn�ders nf the
Corporation for their action or consideration at any meeting of stockholders of the Corporation (or
by written consent of stockholders in Iieu of ineeting), each holder of outstanding shares of
Preferred Stnck shall be entit�ed tn cast the nwr�ber nf vntes equal tn the n►u�ber nf whnle shares
of Corr�rnon Stock into which the shares of Preferred Stock held by such holder are convertibie as
of the record date for detern�ining stockholders entitied to vote on such rr�atter. Except as provided
by Iaw or by the other provisions of this Certif cate of �ncorporation, holders of Preferred Stock
sha11 vote together with the holders of Common Stock as a single class and on an as-converted to
Common Stock basis.
�.� Electinn of Directn�s. At any time when at Ieast 77,247 shares of
Series A Preferred Stock (subject to appropriate adj�.stment in the event of any stock dividend,
stock split, cornbination or other sirr�ilar recapitalization with respect to the Series A Preferred
Stnck) are nutstanding, the hniders nf recnrd nf the shares nf Series A Preferred Stnck, exclusively
and as a separate ciass, shail be entit�ed tn e�ect nne (1) directnr nf the Cnrpnratinn (the "Series A
Direetors"�. The holders of record of the shares of Common Stock, voting together as a single-
class, sha1T be entitTed to elect three (3) directors of the Corporation. The holders of record of the
shares nf Cnrr�nn Stnck, vnting tngether as a sing�e-c�ass, sha�l be entit�ed to e�ect one (1)
additional director of the Corporation, subject to the approval of the Series A Director. Any
director e�ected as provided in the preceding three sentences r�ay be re�noved without cause by,
and nnly by, the affirtnative vnte nf the hniders nf the shares nf the class nr series nf capital stnck
�ritit��f� t0 ��OCt Si1CY1 Clii'0Ct01' OI' Clii'�CiOI'S, �iV�II �ii1i�1' �i � SpOCI�� Iri��tiri� Of SlTC�'l SiOC�cl]O�CI�I'S
duly calTed for that puipose or pursuant to a written consent of stockholders. �f the holders of
shares nf Series A Preferred Stnck nr Cnrr�nn Stnck, as the case rr�ay be, fai� to elect a sufficient
nwnber of directors to f l� a�l directorships for which they are entitled to elect directors, pursuant
tn this Sectinn 3.2, then any directnrship nnt sn f l�ed shal� re�nain vacant until such tirne as the
ho�ders of the Series A Preferred Stock or Corr�on Stock, as the case �nay be, e�ect a person to
f 1I such directorship by vote or written consent in Iieu of a meeting; and no such directorship may
be f 11ed by stockholders of the Corporation other than by the stockholders of the Corporation that
are entitled tn elect a persnn tn f l� such directnrship. The hniders nf recnrd nf the shares nf
Cnrrunnn Stnck and nf any nther class nr series nf vnting stnck (including the Series A Preferred
Stnck), exc�usive�y and voting together as a single c�ass, shall be entitled tn elect the balance nf
the total number of directors of the Corporation. At any meeting held for the purpose of electing
a director, the presence in person or by proxy of the holders of a majority of the outstanding shares
of the class or series entitled to elect such director shall constitute a quorum for the purpose of
electing such director. Except as otherwise provided in this Section 3.2, a vacancy in any
directnrship fiiled by the hniders nf any class nr series shall be f l�ed nnly by vnte nr written cnnsent
in lieu of a rr�eeting of the ho�ders of such class or series or by any re�naining director or directors
elected by the holders of such class or series pursuant to this Section 3.2. The provisions of this
Section 3.2 are subject to that certain Voting Agreement, dated on or about the date hereof, by and
among the Corporation and certain holders of its Common Stock and Preferred Stock, as such
agreement may be restated, amended, supplemented or otherwise modified from time to time.
3.3 P�efe�red Stnek Protective Provisinns. At any time when at least
154,494 shares nf Series A Preferred Stnck (subject tn apprnpriate adjust�nent in the event nf any
stock dividend, stock sp�it, co�nbination or other sitnilar recapita�ization with respect to the Series
A Preferred Stnck) are nutstanding, the Cnrpnratinn shal� nnt, either direct�y nr indirectly by
atnenc�tnent, rnerger, cnnsnlidatinn nr ntherwise, dn any nf the fn�inwing withnut (in additinn tn
any other vote required by 1aw or this Certif cate of Incorporation) the written consent or
affirn�ative vnte nf the Requisite Hnlders, given in writing nr by vnte at a rneeting, cnnsenting nr
vnting (as the case �nay be) separately as a c�ass, and any such act nr transactinn entered intn
without such consent or vote sha�� be nu�� and void ab initia, and of no force or effect.
(a) create or authorize the creation of or issue any other secw�ity
convertible into or exercisable for any equity security, having rights, preferences or privileges
senior to the Series A Preferred Stock, or increase the authorized number of shares of Common
Stock or Preferred Stock;
(b) a�nend, alter nr repea� any prnvisinn nf this Certif cate nf
�ncorporation or the Bylaws of the Corporation;
7
ic) purc�ase ar reclee�n (nr per�nit any subsidiary ta purchase ar
recleem) or pay or declare ar�y dividenc� or �nake any c�istribuiion on, any shares of capital stock of
t�e Co�poratior� other �har� {i) recierr�ptions of or ciividenc�s or distributions on �he Preferred Stoc�C
as expressiy autharizeci hereir�, (ii) diviciend.s ar n�ier clist�-ibutior�s payable a� the Ca�nrr�ar� �tocl�
salely in the farrr� af acidi�iar�al s�iares nf Camrr�an Stacl�, (iii} repurchases of stac�C frarn farmer
err�playees, aff cers, ciirec�ors, car�sultants or n�her persar�s w�ia performeci services far the
Corpc�ratinn nr ar�y subsidiary i� conr�ectiar� wi� �ie cessatiar� af such emplay�ner�� ar service at
��ie lawer of the arigir�al purc�iase price or t�ie t1�en-currer�t fair tnarke� valu.e ��iereaf pr (iv) as
approveci by the Boarci of Directors, inc�ucii�g the approval of the Series A Directors;
(c�) acc�uire anoiher corporaiion or oiher entity by merger,
purchase of substar��ialiy al� of the assets or o�her reorga�ization;
(e) lic�uidate, disso�ve or wind up the affairs of the Corpora�ior�,
or effect any merger or cor�solidatior� or any oiher Deemeci Lic�uida�ior� Ever�t, or permit any
subsidiary �a dp the sarr�e, or, ur�less �e abIigatians of �he Ca�pnra�ian ar ��ie subsiciiary ur�der
eaeh app�icabie agreemen� are expressiy cor�ciitiar�a� upan tt�e appravaI of the Rec�uisite Halciers,
�nake ar�y agreement ar beearne abligated to cIa so ar permi� a subsidiary �a make ar�y agreement
ar became obliga�ed �a cIo sa; pravicled, hawever, the approval required by this �ec�iar� 3.3 (e) s�ial I
not be requireci if t�e gross cash proceeds to t3�e �o�ders of the Series A Preferrec� Stock are in an
amaun� per sl�are equal tn ar grea�er tha.n the �eries A Participatian Thres�aid;
(f� pledge or encumber aIl or substar��ial�y aIl of the assets of the
Corporation;
(g) (i) i�crease or decrease ihe authorizec� r�umber of ciirectors
constituti�g the Boarc� of Directors, (ii) c�ange the election proceciures for the Board of Directors
OP �Ii1� �C���1� aIiY �3i'OViSi�ii iIiC�11S1S�e21� WI��1 Al'�1CI� VI;
(�) issue a�y capi�al stock of t�e Corporaiion ot�er tha� in
accorclar�ce with the Carpara�ian's stack aption ar ather equity i�centive plar�s;
(i) create, or au�horize the crea�ior� of, or issue, or autt�orize ihe
issuar�ce of ar�y debt security or crea�e ar�y lien or security ir�terest {except for purc�ase rr�oney
liens or s�atu.tary Iier�s af lancilnrcis, meehanics, ma�erialrr�er�, work�ner�, warehauserr�er�, ar�d a�her
sirni�ar perso�s arisir�g or ir�currec� in �he ordinary course of business) or incur any aggregate
inciebtedness in excess of $250,000 �hai is not alreacly inelucieci ir� a buciget approved by the Board
of Directors (i�cluding t�e approval of �he Series A Directors), other than trac�e credit incurred i�
the orciir�ary course of business;
(j) create, or �oid capital stock in, any subsidiary that is r�oi
whaliy ow�ecl (either clirec�iy ar ��iraugh ane ar rr�are other subsicliaries) by ��ie Carparatiar�, or
perrr�it ar�y subsidiary ta create, ar authori�e the creatior� af, af issue ar abliga�e itself �a issue, ar�y
shares nf ar�y ciass ar series nf capital stack, ar se�l, transfer ar otherwise clispase of any capi�al
stack af any direct ar in�IireCt subsi�Iiary af the Carparatian, ar pertr�i� ar�y direct or inciirect
subsidiary �a seli, Iease, transfer, excIusi�eIy license c�r atherwise clispnse (i� a single trar�sactian
or series of related tra�sactions) of aIl or substa�tially aIl of �he assets of suc� subsidiary;
(k) cause nr pern�it any nf its subsidiaries tn, withnut apprnval
of the Board of Directors (including the approval of the Series A Directors), se1l, issue, sponsor,
create or distribute any digital tokens, cryptocurrency or other blockchain-based assets
(col�ectively, "Tokeras"�, including through a pre-sa�e, initial coin offering, token distribution
event nr crnwdfunding, nr thrnugh the issuance nf any insh�ent cnnvertibie intn nr exchangeabie
for Tokens; or
(�) enter into any h'ansaction not in the ordinary course of
business invniving the pa}�ent, cnntributinn nr assignrnent by the Cnrpnratinn nr tn the
Corporation in an aggregate amount greater than $1 QO,QOQ.
4. 4ptioraat Coraversion. T'he hniders nf the Preferred Stnck sha�l have
conversion rights as foiiows (the "Conversiora Rights"�:
4.1 Right to Convert.
(a) Conversiora Ratio. Each share nf Preferred Stnck sha�l be
cnnvertibie, at the nptinn nf the hnider therenf, at any tirr�e and frnrn tirr�e tn tirne, and withnut the
payment of additional consideration by the holder thereof, into such number of fu11y paid and non-
assessable shares of Common Stock as is determined by with respect to the Series A Preferred
Stock, dividing the Series A Original �ssue Price by the Series A Conversion Price (as defined
below) in effect at the ti�ne of conversion. The "Se�ies A Conversion Price" shall initially be equal
tn $19.42 per share. Such initial Series A Cnnversinn Price, and the rate at which shares nf Series
A Preferred Stnck rnay be cnnverted intn shares nf Cnrr�rr�nn Stnck, shall be subject tn adjusi�ent
as provided below. The 5eries A Conversion Price are frorr� time to tirr�e, referred to as the
"Conversion P�iee" and each individually, as the "Applieable Cnnve�sinn Price."
(b) Termiraation of Conversiora Rights. In the event of a
fiquidation, dissolution or winding up of the Corporation or a Dee�ned Liquidation Event, the
Conversion Rights sha1T terminate at the close of business on the last fu1l day preceding the date
f�ed fnr the payrr�ent nf any such arr�nunts disi�ibutable nn such event tn the hn�ders nf Preferred
Stnck; prnvided that the fnregning tern�inatinn nf Cnnversinn Rights sha�l nnt affect the arnnunt(s)
ntherwise paid nr payabie in accnrdance with Sectinn 2.1 tn hnlders nf Preferred Stnck pursuant
to such �iquidation, dissoiution or winding up of the Corporation or a Deerr�ed Liquidation Event.
4.� F�actional Sha�es. No fractional shares of Common Stock sha1T be
issued upon conversion of the Preferred Stock. In Iieu of any fractional shares to which the holder
would otherwise be entitled, the Corporation sha11 pay cash equal to such fraction �nultiplied by
the fair market value of a share of Common Stock as determined in good faith by the Board of
Directors of the Corporation. Whether or not fractional shares would be issuable upon such
cnnversinn shall be deterrr�ined nn the basis nf the tntal nurnber nf shares nf Preferred Stnck the
hnider is at the tirne cnnverting intn Cnrr�rr�nn Stnck and the aggregate nurnber nf shares nf
Common Stock issuable upon such conversion.
'�.3 Meehanies of Conversiora.
(a) Notice of Conversiora. In order for a ho�der of Preferred
Stock to voluntarily convert shares of Preferred Stock into shares of Common Stock, such holder
shall (a) pravicle written r�a�iee �n the Cnrparatian's trar�sfer ager�� at the aifice af �ie trar�sfer agent
for t�e Preferred Stock (or at the principai office of the Corporation if the Corporatior� serves as
its own transfer a�ent) that suc� holder elects to convert al� or any r�umber of such holcier's shares
af Preferreci S�ack ancl, if applicab�e, any event ar� which such car�versian is car�tinger�� ar�d (b), if
such �ialcler's s�iares are certif cated, surrencier the certificate ar certif ca�es far sueh s�iares of
Preferrecl Staek (ar, if suc� registered �iaider aileges tha� suc�i eertificate has beer� Ias�, s�alen ar
des�rayed, a Iast eertificate afficia�i� ar�d agreement reasar�ably aceeptable to �e Carpara�ian to
inclemnify �he Ca�pora�ian agair�st ar�y clai�n that may be �nac�e agair�st ��e Carporatian an aceount
of the allegec� loss, thefi or cies�ructior� of such certif ca�e), at the office of �he transfer agent for
�ie Preferred �tack (or at �e pr�ncipaI off ce of �ie Ca�paratian if t�ie Carpora.�ior� serves as its
ow� �rar�sfer ager�t). Sueh notice sha.11 state suc� halcler's r�ame ar ��ie r�ames af the narninees in
whici� su.c� halcler wishes the s�ares af Ca�n�nar� �iock ta he issued. If required by �he
Co�paratian, any certif ca�es surrer�clereci far conversian s�ail be enc�arsed ar accampar�ied by a
writter� insir��rr�er�t or instrr�arr�ents oftransfer, ir� forn� satisfactory to �he Corporatio�, du�y executed
by the registereci holcier or �is, l�er or i�s attorney cluly auihorizeci i� writi�g. The elose of busi�ess
or� �ie clate of reeeipt by the transfer agent (or by the Carparatiar� if �ie Ca�paratian serves as its
ow� transfer agent} nf such r�a�ice ar�d, if appiicable, certifcates (ar Ias� cer�ifca�e afficiavi� ar�d
agreement) shall be the ti�ne af cor�versian (the "Canversion Time"), an�i tl�e shares af Cc��n�na�
Stock issuable upor� conversior� of the specifieci s�ares shall be deerr�ed to be outstar�ding of record
as of suc� ciate. The Corporaiion s�ali, as soon as practicable after the Conversion Tirr�e (i) issue
anc� c�eiiver to such ho�der of Preferred Stock, or to his, her or its norr�inees, a notice of issua�ce of
uncertifcated shares a�d may, upo� written request, issue anci cleliver a certificate for ��e number
af fiz1I s�ares af Carmm�n �tack issuable upar� �uc� car��ersiar� ir� aceordance with the pravisians
hereaf ar�d, may, if applicable ar�d upar� w�itten reques�, issue ar�d cle�i�er a certifica�e far �ie
number (if ar�y) of the s�ares of Preferreci Stocl� represer�ted by any surre�c�erec� certif cate t�at
were no� converted into Comrr�or� S�ock, (ii) pay ir� cash such amount as proviciec� in Sec�ior� 4.2
in lieu of a�y fraction of a share of Corr�rr�on Stock otherwise issuable upor� such conversion a�d
(iii) pay ail accrueci but ur�paici Accruing Dividenc�s (whether or r�ot declarec�) ar�d ali other cieclareci
but unpaid dividend.s an the shares of Series A Preferred �tacl� cor�vertecl.
(b) Rese�vation of Shares. 'I`he Carparatian sha1l at all tirr�es
when �ie Preferrecl Stack s�aII be auts�ar�ding, reserve ar�d keep available aut ai its au�har�zed but
unissued eapitai s�ack, far �he purpase af effec�ing �e eonversiar� af �he Preferred Stack, suc�
number ai i�s ciuIy au�harized s�ares of Cornrnan Stack as s�aIl frorn �irne ta ti�ne be suff cier�� ta
effect �he cor�version of aI� outstancli�g Preferreci Siock; a�d if at any time the number ofauihorized
but unissued s�ares nf Camman Stock shali r�ot be suificien� ta effect ��e ca�versian c�f a�� �er�
autstanciir�g shares af �e Preferred Stock, �he Corpora�iar� sha�l �a.ke such carporate aetior� as rr�ay
be necessary ta increase its au�har�zecl but ur�issuecl shares of Co�nrnon Stnck ta �uc� r�umber af
shares as shal� be sufficient far sueh purpases, including, witi�out 1imi�a�ian, engaging ir� best
eifi'c�rt� �a nbtain the requisite s�ackhaider appraval nf a�y necessary amenc��nen� to thi� Certificate
of Incorporation. Before taking any actior� w�ich woulc� cause an adjustment reciucing the
Applicable Conversior� Price below the then par value of t�e shares of Corrfmo� Siock issuable
upc�n canversian af the Pre%rred S�ack, the Ca�pnratic�n wiil talce ar�y ea�parate ac�ia� whicl� �nay,
i� the apir�inn of its caunsei, be necessary i� arcler �hat t�e Corporatian may valiclly ar�d Iegally
issue fizlly paid a�ci �or�-assessab�e shares nf Carn�nan Stack at such adjusted AppIicable
Conversio� Price.
10
(c) Effect of Conversiora. Al� shares of Preferred Stock which
sha11 have been surrendered for conversion as herein provided shall no longer be dee�ned to be
outstanding and a11 rights with respect to such shares shall immediately cease and terminate at the
Cnnversinn Tirne, except nn�y the right nf the hn�ders therenf tn receive shares nf Cnr�u�nn Stnck
in exchange therefnr, tn receive pay�ent in lieu nf any fractinn nf a share ntherwise issuabie upnn
such cnnversinn as prnvided in S�C�IOII �.2 �tlf� �O I'OC�iV� p�}'111�ri� Of ��l �CCI'lT�f� �?lTi iltip�lf�
Accruing Dividends (whether nr nnt dec�ared and as applicabie) and all nther dividends declared
but unpaid therenn. Any shares nf Preferred Stnck sn cnnverted sha�l be retired and cance�led and
may not be reissued as shares of such series, and the Corporation may thereafter take such
appropriate action (without the need for stockholder action) as rr�ay be necessary to reduce the
authnrized nwr�ber nf shares nf Preferred Stnck accnrdingly.
(d) Nn Fu�the� Adjustment. Upon any such conversion, no
adjusi�ent tn the App�icabie Cnnversinn Price shall be rnade fnr any Accruing Dividends (as
app�icable) or any other declared but unpaid dividends on the Preferred Stock swrendered for
conversion or on the Common Stock delivered upon conversion.
(e) T�,xes. The Cnrpnratinn shal� pay any and all issue and nther
sirniiar taa�es that rr�ay be payabie in respect nf any issuance nr delivery nf shares nf Cnrr�rr�nn
Stock upon conversion of shares of Preferred Stock pursuant to this Section 4. The Corporation
shall nnt, hnwever, be required tn pay any tax which rnay be payable in respect nf any transfer
invnived in the issuance and de�ivery nf shares nf Cnr�u�nn Stnck in a narr�e nther than that in
which the shares of Preferred Stock so converted were registered, and nn such issuance nr delivery
shall be rr�ade un�ess and until the persnn nr entity requesting such issuance has paid tn the
Cnrpnratinn the arr�nunt nf any such tax nr has estab�ished, tn the satisfactinn nf the Cnrpnratinn,
that such tax has been paid.
4.4 Adjustments to Applieable Conve�sion Price for Diluting Issues.
(a) Speeiat Defaraitions. For purposes of this ARTICLE IV, the
following definitions sha11 apply:
(i) "Optiora" sha�� rnean rights, nptinns nr warrants tn
subscribe fnr, purchase or otherwise acquire Corr�rr�on Stock or Convertible Securities.
(ii) "Se�ies A D�iginal Issue Date" shall mean the date
on which the f�rst share of Series A Preferred Stock was issued.
(iii) "Coravertibte Securities" shall rr�ean any evidences
of indebtedness, shares or other sec�u-ities directly or indirectly convertible into or exchangeable
for Common Stock, but excluding Options.
(iv) "Additinnal Sha�es of Cnmmon Stnek" shall mean
aI1 shares of Common Stock issued (or, pursuant to 5ection 4.6 below, deemed to be issued) by
the Corporation after the Series A Original Issue Date, other than (1) the following shares of
Cnr�u�nn Stnck and (2) shares nf Cnr�u�nn Stnck deerned issued pw�suant tn the fn�inwing Optinns
and Cnnvertible Securities (clauses (1) and (2), C0�10C�iV��}', "Exempted Seeurities"�:
11
A. s�ares af Cn�n�nar� �tacic, Optians ar
Convertible Securities issuec� as a c�ividenc� or distribution on Series A Preferred S�ock;
B. s�iares af Cnrr�rr�ar� �tocl�, Optians ar
Convertible Securities issued by reasor� of a ciivicier�d, stock split, split-up or other distributior� or�
shares of Com�or� Stock that is covereci by Sectior� 4.5, 4_6, 4_7 or 4_8;
C. shares of Corr�rr�on Stock issued pursuani to a
Q�.�aIifed Public Offering;
D. shares of Comrr�on Stock or Opiions issuec� to
employees or ciirectors of, or cor�sulia�ts or advisors to, t�e Corporation or any of i�s subsic�iaries
pursu.ar�t tn a plan, agreerner�t ar arrar�ge�ner�� appraved by tl�e Board nf Directars nf the
Co�paratinn, incIucli�g �he appraval af the Series A Directars;
E. shares of Corn�non Stock or Convertible
�ecuri�ies ac�ally issued u.pnn �e exercise af ()p�iar�s or shares af Com�nan S�ack actu.aily issuecl
upan �he ca�versian ar exc�iar�ge af Car�vertible Securities, in eaeh case pravicieci su.c� issua.nce is
pursuar�t to the �erms of such Optior� or Cor�vertible Security;
F. s�ares af Ca�n�nar� �tacic, Optians ar
C�nvertible Securities issuecl as acquisitian cansicleratian pursuant to �ie acquisitia� of ar�a�ier
corporaiion by ihe Corporaiior� by rr�erger, purchase of substa�tiaily al� of the assets or other
rearganiza�iar� ar �n a jaint venture agreerr�er��, praviclec� �iat suc�i issua�ces are approvecl by t�ie
Boarcl of Directars af �e Carpnra�iar�, ir�cluding the apprava� of the Series A Direc�ors;
G. shares of Comrr�or� Stock, Options or
Can�ertible �ecurities issued ta banks, equip�ner�� Iessars ar ather fir�ar�cial ir�stit�atior�s, ar �a reai
praperty lessars, pursu.a�t to a debt fnar�cing, e�uiprr�er�� leasir�g ar real praperty leasi�g
�ransactian appraved by the B�ard af Directors af the C��pora�iar�, ir�cIuciir�g ��e appraval af �he
Series A Directors;
H. s�are� af Carr�rr�ar� �tack, Optians ar
Convertible Securities issued for charitable purposes approved by the Boarci of Directors of the
Cotporaiion, incIuciir�g �he approval of the Series A Directors;
�. shares af Carr�rr�a� �tacl�, Optians or
Convertible Securiiies issued in cor�nectior� with sponsorec� research, co�laboration, technologY
license, cievelopmer�t, OEM, rr�arketir�g or other similar agreements or straiegic part��ersi�ips
appravec� by �ie Baarcl af Directars af the Carparatian, i�clucli�g �he apprnval af �e �eries A
Directars; ar�d
J. shares of Com�o� Stock, Options or
Canvertible �ecuri�ies issuecl ta suppiiers ar third-party service praviders ir� canr�ectior� with the
provisior� of goocis or services pursuar�� �o �ransactions approveci by �e Boarci of Directors of the
Corporation, inclucii�g ��e approval of the Series A Directors.
12
4.S No Adjustmerat of Appticable Conversiora Priee. No adjustrnent in
the Applicable Conversion Price of any series of Preferred Stock shall be made as the result of the
issuance or deemed issuance of Additional5hares of Common Stock if the Corporation receives
written nntice frn�n at least a rnajnrity nf the nutstanding shares nf such series nf Preferred Stnck
agreeing that nn such adjustrnent tn the Applicabie Cnnversinn Price shall be �nade as the result nf
the issuance nr deerr�ed issuance nf such Additinnal Shares nf Cnrrunnn Stnck.
4. � Deemed Issue of Additional Shares of Commora Stoek.
(a) �f the Corporation at any time or from time to time after the
Series A Original Issue Date, shal� issue any Optinns nr Cnnvertible Secw�ities (excluding Optinns
or Convertible Secw'ities which are therr�se�ves Exe�npted Secut�ities) or sha�l f� a record date for
the detern�inatinn nf hnlders nf any class nf secw�ities entitled tn receive any such Optinns nr
Convertible Sec�u-ities, then the maximum nurr�ber of shares of Common Stock (as set forth in the
instrument relating thereto, assuming the satisfaction of any conditions to exercisability,
convertibility or exchangeability but without regard to any provision contained therein for a
subsequent adjust�ent of such nwr�ber) issuabie upon the exercise of such Options or, in the case
nf Cnnvertibie Secw�ities and Optinns therefnr, the conversion or exchange of such Convertible
Securities, sha�l be dee�ned tn be Additinnal Shares nf Cnrrunnn Stnck issued as nf the tirne nf such
issue or, in case such a record date sha1T have been fixed, as of the close of business on such record
clate.
(b) �f the terms of any Option or Convertible Sec�u-ity, the
issuance of which resulted in an adjustment to the Applicable Conversion Price pursuant to the
terms of Section 4.7, are revised as a result of an amendment to such terms or any other adjustment
pw�suant tn the prnvisinns nf such Optinn nr Cnnvertible SOCilI'liji �?lTi �xCIlTCIiri� �lTi0Til�iiC
adjustrnents tn such tertns pursuant tn anti-diiutinn nr si�niiar prnvisinns nf such Optinn nr
Convertible Sec�u-ity) to provide for either (1) any increase or decrease in the number of shares of
Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or
Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation
upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease
�?�COlriiri� �ffOCtiV�, i1i� App�iC��?I� COriV�I'Si0I1 PI'IC� COIriplTi�Cl lTpOri i1i� OI'i�iri�l iSSil� Of Si1CY1
Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall
be readjusted to such Applicable Conversion Price as would have obtained had such revised terms
been in effect upon the originaT date of issuance of such Option or Convertible Security.
Notwithstanding the foregoing, no readjustment pursuant to this clause (b) sha1T have the effect of
increasing the Applicable Conversion Price to an amount which exceeds the lower of (i) the
App�icabie Conversion Price in effect irr�ediately prior to the original adjust�ent �nade as a resu�t
of the issuance of such Option or Convertible Secw�ity, or (ii) the Applicabie Conversion Price that
would have resulted from any issuances of Additional Shares of Common Stock (other than
deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option
or Convertible Sec�u-ity) between the original adjustment date and such readjustment date.
(c) �f the terms of any Option or Convertible Sec�u-ity
(excluding Options or Convertible Secut�ities which are therr�seives Exe�npted Secw'ities), the
i�suance nf which did nnt resuit in an adjustrnent tn the Applicabie Cnnversinn Price pursuant tn
the tertns nf Sectinn 4.7 (either because the cnnsideratinn per share (detertnined pursuant tn Sectinn
13
4_8) nf the Additinnal Shares nf Cnrr�r�nn Stnck subject theretn was equal tn nr greater than the
Applicable Conversion Price then in effect, or because such Option or Convertible Sec�u-ity was
issued before the Series A Original Issue Date), are revised after the Series A Original �ssue Date
as a resu�t nf an arr�enci�nent tn such tertns nr any nther adjust�nent pursuant tn the prnvisinns nf
such Optinn nr Cnnvertible Security (but excluding autn�natic adjust�nents tn such tern�s pw�suant
to anti-dilution or sitniiar provisions of such Option or Convertible Security) to provide for either
(1) any increase in the nwr�ber nf shares nf Cnrrunnn Stnck issuabie upnn the exercise, cnnversinn
nr exchange nf any such Optinn nr Cnnvertible Security nr (2) any decrease in the cnnsideratinn
payable to the Corporation upon such exercise, conversion or exchange, then such Option or
Cnnvertible Secw�ity, as sn a�nended nr adjusted, and the Additinnal Shares nf Cnrr�nn Stnck
subject theretn (detern�ined in the rr�anner prnvided in Sectinn 4.6(a)) sha�l be dee�ned tn have been
iSSlT�f� �ffOCtIV� lTpOri SlTC�'l ii1CI'��5� OI' f��Cl'��5� �?OCOIrili1� �ffOCtiV�.
(d) Upnn the expiratinn nr tertninatinn nf any unexercised
Option or unconverted or unexchanged Convertible Security (or portion thereo� which resulted
(either upon its originaT issuance or upon a revision of its terms) in an adj�i.stment to the Applicable
Conversion Price pursuant to the terms of Section 4.7 the Applicable Conversion Price shall be
readjusted to such Applicable Conversion Price as would have obtained had such Option or
Convertible Security (or portion thereof} never been issued.
(e) If the nu�nber nf shares nf Cnrr�nn Stnck issuable upnn the
exercise, cnnversinn and/nr exchange nf any Optinn nr Cnnvertible Security, nr the cnnsideratinn
payabie to the Corporation upon such exercise, cnnversinn and/nr exchange, iS C��ClTI��?I� �i i1i�
ti�ne such Optinn nr Cnnvertible Secw�ity is issued nr arr�ended but is subject tn adjustrnent based
upnn subsequent events, any adjust�ent tn the Applicabie Cnnversinn Price prnvided fnr in this
Section 4.6 sha1T be effected at the time of such issuance or amendment based on such number of
shares or amount of consideration without regard to any provisions for subsequent adjustments
(and any subsequent adjust�ents shall be treated as prnvided in clauses (b) and (c) nf this Sectinn
4_6). If the nu�nber nf shares nf Cnrrunnn Stnck issuable upnn the exercise, cnnversinn and/nr
exchange nf any Optinn nr Cnnvertible Secw�ity, nr the cnnsideratinn payabie tn the Cnrpnratinn
upnn such exercise, cnnversinn and/nr exchange, cannnt be calcuiated at all at the ti�ne such Optinn
or Convertible Sec�u-ity is issued or amended, any adjustment to the Applicable Conversion Price
that would result under the terms of this Section 4.6 at the time of such issuance or amendment
shall instead be effected at the ti�ne such nu�nber nf shares and/nr arr�nw�t nf cnnsideratinn is first
C�Cil��bl� ��V�II if Sil�?j�Ci i0 SlT�?S�C�lT�Ili ��lTSh1l�IliS�, �SSiliTiiri� f0I' pi1TpOS�S Of C�Cil��tiri� Si1CY1
adjustrnent tn the App�icable Cnnversinn Price that such issuance nr a�nenci�nent tnnk place at the
time such calculation can first be made.
4.7 Adjustment of the Applieable Coraversion Priee Upon Issuaraee of
Additional Shares of Commnn Stock. In the event the Corporation sha1T at any time after the
Series A Original �ssue Date issue Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to Section 4.6), without consideration or
for a consideration per share less than the App�icable Conversion Price in effect i�ntnediately prior
to such issuance or dee�ned issuance, then the Applicabie Cnnversinn Price shali be reduced,
concwrently with such iSSil�, t0 � pi'1C� �C��ClTl�t�f� t0 i1i� Il��i'�St OII�-�'liltiC�T�f��Y1 Of � C�rit�
determined in accordance with the following formula:
14
cP2=cPi *�A+B�=�A+c�.
Fnr pw�pnses nf the fnregning fnrrnu�a, the fnlinwing definitinns shail appiy:
(a) "CP2" sha1T mean the Applicable Conversion Price in effect
irr�rnediately after such issuance nr deerned issuance nf Additinnal Shares nf Cnrr�rnnn Stnck
(b) "CP1" shal� rnean the App�icable Cnnversinn Price in effect
irr�rnediately prior to such issuance or deerned issuance of Additionai Shares of Corr�rnon Stock;
(c) "A" sha�l rnean the nurr�ber nf shares nf Cnrr�rr�nn Stnck
nutstanding irr�rr�ediate�y prinr tn such issuance nr deerr�ed issuance nf Additinnal Shares nf
Common Stock (treating for this puipose as outstanding aI1 shares of Common Stock issuable upon
exercise of Options outstanding immediately prior to such issuance or deemed issuance or upon
conversion or exchange of Convertible Securities (including the Preferred Stock) outstanding
(assuming exercise of any outstanding Options therefor) immediately prior to such issue);
(d) "B" sha1T mean the nurr�ber of shares of Common Stock that
wnuld have been issued if such Additinnai Shares nf Cnr�u�nn Stnck had been issued nr deerr�ed
issued at a price per share equal tn CP 1(deterrr�ined by dividing the aggregate cnnsideratinn
received by the Corporation in respect of such issue by CP1); and
(e) "C" shal� rr�ean the nw�ber nf such Additinnal Shares nf
Cnrr�rnnn Stnck issued in such transactinn.
'�.� Determinatiora of Consideration. For purposes of this Section 4.8,
the cnnsideratinn received by the Cnrpnratinn fnr the issuance nr deerr�ed issuance nf any
Additional Shares of Common Stock shall be computed as follows:
(a) Cash and Property: Such consideration shali:
(i) insofar as it consists of cash, be cnrnputed at the
aggregate arr�ount of cash received by the Corporation, exc�uding arr�ounts paid or payable for
accrued interest;
(ii) insnfar as it cnnsists nf prnperty nther than cash, be
computed at the fair market value thereof at the time of such issue, as determined in good faith by
the Board of Directors of the Corporation; and
(iii) in the event Additinnai Shares nf Cnrr�rnnn Stnck are
issued together with other shares or sec�u-ities or other assets of the Corporation for consideration
which covers both, be the proportion of such consideration so received, computed as provided in
clauses (i) and (ii) abnve, as deterrnined in gnnd faith by the Bnard nf Directnrs nf the Cnrpnratinn.
(b) Options and Convertible Sec�u-ities. The consideration per
share received by the Corporation for Additional Shares of Common Stock deemed to have been
issued pursuant tn Sectinn 4.G, relating tn Optinns and Cnnvertible Securities, shaii be detern�ined
by dividing:
15
(i) The tntal a�nnunt, if any, received nr receivable by
the Corporation as consideration for the issue of such Options or Convertible Securities, plus the
minimum aggregate amount of additional consideration (as set forth in the instruments relating
thereto, without regard to any provision contained therein for a subsequent adjust�ent of such
consideration) payable to the Corporation upon the exercise of such Options or the conversion or
exchange nf such Cnnvertible Secw�ities, nr in the case nf Optinns fnr Cnnvertible Secw�ities, the
exercise nf such Optinns fnr Cnnvertible Securities and the cnnversinn nr exchange nf such
Convertible Secw�ities, by
(ii) the maximum number of shares of Common Stock
(as set forth in the inst�-uments relating thereto, without regard to any provision contained therein
for a subsequent adjustment of such number) issuable upon the exercise of such Options or the
conversion or exchange of such Convertible Secur�ties, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertibie Securities and the conversion or exchange
of such Convertible Secw�ities.
4.� Muttipte Closing Dates. In the event the Corporation shal� issue on
�nnre than nne date Additinnal Shares nf Cnrrunnn Stnck that are a part nf nne transactinn nr a
series nf related transactinns and that wnuld result in an adjust�ent tn the Applicabie Cnnversinn
Price pursuant to the terms of Section 4.7 then, upon the final such issuance, the Applicable
Cnnversinn Price shail be readjusted tn give effect tn ail such issuances as if they nccurred nn the
date nf the first such issuance (and withnut giving effect tn any additinnal adjust�ents as a result
nf any such subsequent issuances within such perind).
4.1 � Adjustment fn� Stock Splits and Combinatinns. If the Corporation
shall at any ti�ne nr frnrn tirr�e tn ti�ne after the Series A Origina� Issue Date effect a subdivisinn nf
the nutstanding Cnrrunnn Stnck, the Applicabie Conversion Price in effect i�ntnediately before that
subdivision sha1T be proportionately decreased so that the number of shares of Common Stock
issuable on conversion of each share of such series sha1T be increased in proportion to such increase
in the aggregate number of shares of Common Stock outstanding. �f the Corporation shall at any
time or from time to time after the Series A Original �ssue Date combine the outstanding shares of
Cnrrunnn Stnck, the App�icable Conversion Price in effect irr�rr�ediately before the corr�bination
sha11 be proportionately increased so that the number of shares of Common Stock issuable on
conversion of each share of such series sha1T be decreased in proportion to such decrease in the
aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection
sha11 become effective at the close of business on the date the subdivision or combination becomes
effective.
4. � l Adjustment for Certaira Dividerads arad Distributions. In the event
the Cnrpnratinn at any ti�ne nr frn�n ti�ne tn tirr�e after the Series A Origina� Issue Date shal� rr�ake
or issue, or f� a record date for the detertnination of ho�ders of Corr�on Stock entitled to receive,
a dividend nr nther dist�ibutinn payabie nn the Cnrr�nn Stnck in additinnal shares nf Cnrr�nn
Stnck, i1i�I1 �TiCI iri ��CYI Si1CY1 �V�rit �Yl� AppliC��?I� COIIV�I'SIOri PI'IC� iri �ffOCt lIT]Iri�f�l�i�ly �?�fOI'�
such event sha1T be decreased as of the time of such issuance or, in the event such a record date
shall have been fia�ed, as nf the c�nse nfbusiness nn such recnrd date, by rnultiplying the Applicabie
COriV�I'Si0I1 PI'IC� i1i�I1 iri �ffOCt �?y � fP�CilOri:
16
(i) the nwr�eratnr nf which sha�l be the tnta� nwr�ber nf
shares of Common Stock issued and outstanding immediately prior to the time of such issuance or
the close of business on such record date, and
(ii) the denominator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date plus the number of shares of Common Stock issuable
in pa}�ent of such dividend or distribution.
Notwithstanding the foregoing (a) if such record date sha11 have been fixed and such
dividend is nnt fuliy paid nr if such distributinn is nnt fu�ly rr�ade nn the date f�ed therefnr, the
App�icabie Cnnversinn Price sha�l be recn�nputed accnrding�y as nf the c�nse nf business nn such
recnrd date and thereafter the App�icabie Cnnversinn Price sha�l be adjusted pursuant tn this
subsection as of the time of actual payment of such dividends or distributions; and (b) that no such
adjustment shall be made if the holders of Preferred Stock simultaneously receive a dividend or
nther distributinn nf shares nf Cnrr�nn Stnck in a nwnber equal tn the nwr�ber nf shares nf
Cnrrunnn Stnck as they wnuid have received if aII nutstanding shares nf Preferred Stnck had been
cnnverted intn Cnrrunnn Stnck nn the date nf such event.
4, i 2 Adjustments for 4ther Dividerads arad Distributioras. In the event
the Cnrpnratinn at any ti�ne nr frn�n ti�ne tn tirr�e after the Series A Origina� Issue Date shal� rr�ake
or issue, or fix 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 a distribution
ofshares of Common Stock in respect ofoutstanding shares ofCommon Stock) or in otherproperty
and the provisions of Section 1 do not apply to such dividend or distribution, then and in each such
event the hnlders nf Preferred Stnck sha�� receive, si�nuitanenusiy with the distributinn tn the
holders of Corr�rnon Stock, a dividend or other dist�ibution of such securities or other property in
an ari�ount equal to the amount of such sec�u-ities or other property as they would have received if
aI1 outstanding shares of Preferred Stock had been converted into Common Stock on the date of
such event.
4.I3 Adjustment for Merge� o� Renrganization, etc. Subject to the
provisions of Section 2.3, if there shall occur any reorganization, recapitalization, reclassif cation,
conso�idation or �nerger invoiving the Corporation in which the Corrunon Stock (but not the
Preferred Stock) is converted into or exchanged for secut�ities, cash or other properiy (other than a
transactinn cnvered by Sectinns 4.11 nr 4.12), then, fnlinwing any such renrganizatinn,
recapitalization, reclassification, consolidation or �nerger, each share of Preferred Stock shal�
thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such
event into the kind and atnount of secut�ities, cash or other property which a holder of the nutnber
nf shares nf Cnrrunnn Stnck nf the Cnrpnratinn issuable upnn cnnversinn nf nne share nf Preferred
Stock irrunediately prior to such reorganization, recapitalization, reclassifcation, conso�idation or
�nerger would have been entitled to receive pw�suant to such transaction; and, lri SlTC�'l C�S�,
apprnpriate adjustrnent (as detertnined in gnnd faith by the Bnard nf Directnrs nf the Cnrpnratinn)
sha11 be made in the application of the provisions in this Section 4 with respect to the rights and
interests thereafter of the ho�ders of the Preferred Stock, to the end that the provisions set forth in
this Section 4(including provisions with respect to changes in and other adjust�nents of the
Appiicabie Cnnversinn Price shall thereafter be applicabie, as neariy as reasnnably rr�ay be, in
17
reiation to any securities or other property thereafter deiiverabie upon the conversion of the
Preferred Stock.
4.1 � Certifieate as to Adjustmerats. Upon the OCCUti'�riC� of each
adjustment or readjustment of the Applicable Conversion Price pursuant to this Section 4, the
Corporation at its expense shall, as promptly as reasonably practicable but in any event not Iater
than ten (1Q) days thereafter, compute such adjustment or readjustment in accordance with the
terrr�s hereof and furnish to each holder of Preferred Stock a certif cate setting fnrth such
adjust�ent or readjustrnent (inciuding the kind and arr�ount of securities, cash or other property
into which the Preferred Stock is convertible) and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable
after the written request at any time of any holder of Preferred Stock (but in any event not Iater
than ten (10) days thereafter), furnish or cause to be furnished to such holder a certificate setting
fnrth (i) the Applicabie Cnnversinn Price then in effect, and (ii) the nurnber nf shares nf Cnrr�rr�nn
Stnck and the arr�nunt, if any, nf nther securities, cash nr prnperty which then wnuld be received
upon the conversion of Preferred Stock.
4.1 S Notice of Reeord Date. In the event:
(a) the Cnrpnratinn shall take a recnrd nf the hniders nf its
Cnrr�rnnn Stnck (nr nther capita� stnck nr securities at the tirr�e issuable upnn cnnversinn nf the
Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any
class or any other sec�u-ities, or to receive any other security; or
(b) of any capital reorganization of the Corporation, any
reclassif cation of the Common Stock of the Corporation, or any Deemed Liquidation Event; or
(c) of the voluntary or involuntary dissolution, Iiquidation or
winding-up of the Corporation,
then, and in each such case, the Corporation will send or cause to be sent to the holders of the
Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend,
distribution or right, and the ari�ount and character of such dividend, distribution or right, or (ii) the
effective date on which such reorganization, reclassification, consolidation, rr�erger, transfer,
dissolution, Iiquidation or winding-up is proposed to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other capital stock or securities at the
time issuable upon the conversion of the Preferred Stock) sha1T be entitled to exchange their shares
of Common Stock (or such other capital stock or sec�u-ities) for securities or other property
deliverable upon such reorganization, reclassif cation, consolidation, merger, transfer, dissolution,
liquidatinn nr winding-up, and the arnnunt per share and character nf such exchange applicabie tn
the Preferred Stnck and the Cnrr�rr�nn Stnck. Such nntice shall be sent at �east ten (14) days prinr
to the record date or effective date for the event specif ed in such notice.
5. Mandatory Conversiora.
5.1 Trigger Everats. Upon either (a) the ciosing of the saie of shares of
Common Stock to the public at a price of at least $77.68 per share (subject to appropriate
18
adjustrnent in the event nf any stnck dividend, stnck sp�it, cn�nbinatinn nr nther si�ni�ar
recapitalization with respect to the Common Stock), in a firm-commitment underwritten public
offering pursuant to an effective registration statement under the Securities Act of 1933, as
atnended, or resulting in at least $25,004,040 of gross proceeds to the Corporation (a "Qualified
Publie 4fferirag") or (b) the date and ti�ne, or the occwrence of an event, specif ed by vote or
written cnnsent nf the Requisite Hnlders (the ti�ne nf such cinsing nr the date and tirne specified
or the tirr�e of the event specif ed in such vote or written consent is referred to herein as the
"Mandatory Coraversion Time"), then (i) all outstanding shares of Preferred Stock sha�l
automaticalTy be converted into shares of Common Stock, at the then effective conversion rate as
calculated pursuant tn Sectinn 4.1(a) with aIl accrued but unpaid Accruing Dividends (whether nr
nnt declared and as app�icabie) and ali nther declared but w�paid dividends therenn paid in cash tn
i1i� �xt�rit ri0i �IT��CIy p�lf� iil fll�� iri �CCOI'CI�t1C� Wi�YI Si1bS�Cii0I12.1, and (ii) such shares rr�ay nnt
be reissued by the Cnrpnratinn.
S.2 Procedurat Requiremerats. A�� ho�ders of record of shares of
Preferred Stock shall be sent written notice of the Mandatory Conversion Time and the place
designated for mandatory conversion of aI1 such shares of Preferred Stock pursuant to this Section
5. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time.
Upon receipt of such notice, each holder of shares of Preferred Stock in certificated form shall
swrender his, her or its certif cate or certificates for al� such shares (or, if such holder alleges that
Si1CY1 C�IiifiC�t� Y1�S b��ri �nst, stn�en nr destrnyed, a�nst certifcate affidavit and agreerr�ent
reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may
be made against the Corporation on account of the aTTeged 1oss, theft or destnzction of such
certificate) to the Corporation at the place designated in such notice, provided, however, that any
faiTure by a holder to comply with these provisions shall not have any effect on the automatic
cnnversinn nf such hn�der's shares, which shali in any event be deerned tn have cnnverted,
autnrnaticaliy and withnut any further actinn nn the part nf the hnider nr the Cnrpnratinn, in
accordance with Section 5.1 above. If so required by the Corporation, any certificates surrendered
for conversion sha1T be endorsed or accompanied by written instrument or instruments of transfer,
in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its
attnrney duly authnrized in writing. A�l rights with respect tn the Preferred Stnck cnnverted
pw�suant tn Sectinn 5.1, inc�uding the rights, if any, tn receive nntices and vnte (nther than as a
hnlder nf Cnrrunnn Stnck), wiil tern�inate at the Mandatnry Cnnversinn Tirr�e (nntwithstanding the
fai�ure of the holder or ho�ders thereof to swrender any certificates at or prior to such tirr�e), except
only the rights of the holders thereof, upon surrender of any certificate or certif cates of such
ho�ders (or lost certificate aff davit and agreerr�ent) therefor, to receive the ite�ns provided for in
the next sentence nf this Sectinn 5.2. As snnn as practicable after the Mandatnry Cnnversinn Ti�ne
and, if applicable, �Yl� Si1Ti�rif��1' Of �Ti}' C�I`�ifiC�i� Ol' C�IilfiC�i�S �Ol' �OSi C�IilfiC�t� �ffiCl�Vit �TiCI
agreernent) for Preferred Stock, the Corporation sha�l (a) issue and deliver to such holder, or to
his, her or its norr�inees, a notice of issuance of uncertif cated shares and �nay, upnn written request,
issue and deliver a certif cate for the number of fu1l shares of Common Stock issuable upon such
conversion in accordance with the provisions hereof, (b) pay cash as provided in Section 4.2 in
lieu nf any fractinn nf a share nf Cnrr�nn Stnck ntherwise issuabie upnn such cnnversinn and (c)
pay ai� unpaid Accruing Dividends (whether nr nnt declared) and all nther dec�ared but unpaid
dividends nn the shares nf Preferred Stnck cnnverted. Such cnnverted Preferred Stnck shal� be
retired and cancelled and may not be reissued as shares of such series, and the Corporation may
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thereafter take such appropriate action (without the need for stockholder action) as rnay be
necessary to reduce the authorized nurr�ber of shares of Preferred Stock accordingly.
G. Rederreption.
G,1 General. Un�ess prnhibited by De�aware law gnverning
distributions to shareholders, shares of Preferred Stock sha1T be redeemed by the Corporation at a
price equal to the greater of (A) the Series A Original �ssue Price per share plus aI1 Series A
Accruing Dividends unpaid thereon and plus a1T declared but unpaid dividends thereon, and (B)
the Fair Market Value (determined in the manner set forth below) of a single share of Series A
Preferred Stock as of the date (the "Electiora Date") of the Corporation's receipt of the Rederr�ption
Request (the "Redemptiora Priee") after receipt by the Corporation at any tirr�e on or after the fifth
anniversary nf the Series A Original Issue Date, frnrn the Requisite Hniders nf written nntice
requesting redemption of a1I shares of Preferred Stock (the "Redemption Reques�'). Upon receipt
of a Redemption Request, the Corporation shall apply a1T of its assets to any such redemption to
the extent nf aII shares nf Preferred Stnck nther than the Exciuded Shares (as defined beinw), and
tn nn nther cnrpnrate purpnse, except tn the extent prnhibited by Delaware Iaw gnverning
distributinns tn sharehn�ders. Any such rede�nptinn shali take place in three annual instail�nents,
with the frst such annua� instailrr�ent being nne day befnre the next anniversary nf the Series A
Original �ssue Date, with the date of each such installment being referred to as a"Redemption
Date." On each Rederr�ption Date, the Corporation shali redee�n, on a pro rata basis in accordance
with the nutnber of shares of Preferred Stock owned by each such ho�der, that nutnber of
nutstanding shares nf Preferred Stnck detertnined by dividing (i) the tntal nwr�ber nf shares nf
Preferred Stnck nutstanding irr�ediately prinr tn such Rede�nptinn Date, by (ii) the nu�nber nf
rernaining Rederr�ptinn Dates (including the Rederr�ptinn Date tn which such calcu�atinn applies);
ron vided, however, that Excluded Shares (as such term is defned in Subsection b.2) sha11 not be
redeemed and shall be excluded from the caTculations set forth in this sentence. �f on any
Rederr�ptinn Date De�aware �aw gnverning distributinns tn sharehniders prevents the Cnrpnratinn
frorr� redee�ning a�� shares of Preferred Stock to be redee�ned, then the Corporation shal� redee�n
shares of Series A Preferred Stock fro�n holders thereof pro rata based upon the aggregate
Rederr�ption Price of such shares of Series A Preferred Stock for which rederr�ption has been
requested, and then any such unredeemed shares sha1T be carried forward and redeemed (together
with other shares of Preferred Stock that are then due to be redeemed) at the next such Redemption
Date tn the fi��l extent nf legal�y avai�ab�e funds nf the Cnrpnratinn at such ti�ne in the sarr�e prinrity
of order. For purposes of this Subsection 6.1, the Fair Market Value of a singie share of Preferred
Stnck shal� be the a�nnunt that wnuld be payable tn the hnider nf such share with respect tn such
share under Subsection 2.1 hereof assuming the Iiquidation of the Corporation at the fair market
vaTue of the Corporation as of the �lection Date (the "Eleetinn Date Market Value"), as mut�ially
agreed upon by the Corporation and the Requisite Holders or, in the event that they are unable to
reach agree�nent, by an independent invest�ent bank, �CCOiltliiri� f11ii1 nr nther financing
institution (the "Yaluatiora Firm"� agreed to by the Corporation and the Requisite Ho�ders;
provided that in the event that the Corporation and the Requisite Holders are unable to mutually
agree on a Valuation Firm, the Corporation on the one hand and the Requisite Holders on the other
hand sha1T each select a VaTuation Firm and the two Valuation Firms sha1T mut�ially agree upon a
final Valuation Firm to determine such fair market value; provided further that in the event that
shares of Preferred Stock are not redeemed at any Redemption Date due to a default in payment
by the Cnrpnratinn nr because the Cnrpnratinn dnes nnt have suff cient legally availabie funds, the
20
Fair Market Va�ue nf each such share nf Preferred Stnck nnt redeerned at the Rederr�ptinn Date
sha11 be the greater of (x) the �Iection Date Market Value and (y) in the event that after such
Redemption Date there is any voTuntary or involuntary Iiquidation, dissolution or winding up of
the Cnrpnratinn nr Deerned Liquidatinn Event, the arr�nunt that wnu�d be payable tn the hnider nf
such share with respect to such share under Subsectinn 2.1 herenf at the tirne nf any such
subsequent voluntary or invo�untary �iquidation, disso�ution or winding up of the Corporation or
Deerr�ed Liquidatinn Event. Each nf the Requisite Hniders and the Cnrpnratinn shali prnvide the
Valuatinn Firrn with cnpies nf any dncwr�ents, anaiyses nr nther infnrn�atinn within its pnssessinn
or control that the Valuation Firm reasonably requests in order to resolve such dispute. The
Valuatinn Firn� shall rr�ake a detern�inatinn as snnn as practicabie after its engagerr�ent tn resnive
the dispute using custnrr�ary va�uatinn techniques fnr nther cnrr�panies nr businesses in the sarr�e
nr sirr�ilar industries as the Cnrpnratinn (and shali nnt appiy any discnw�t due tn the fact that the
securities rnay constitute "restricted securities" or rnay represent a rr�inority interest in the
Corporation). The Valuation Firm's determination sha1T be binding on aII of the holders of the
Corporation.
&.2 Redemption Notice. The Corporation sha1T send written notice of
the redemption (the "Redemptinn Notice") to each holder of record of Preferred Stock not Iess
than forty (4Q) days prior to each Redemption Date. Each Redemption Notice shall state:
(a) the nwr�ber nf shares nf Preferred Stnck he�d by the hn�der that
the Cnrpnratinn shail redeerr� nn the Redernptinn Date specif ed in the Redernptinn Nntice;
(b) the Redemption Date and the Redemption Price;
(c) the date upon which the holder's right to convert such shares
terminates (as determined in accordance with Subsection 4.1); and
(d) for holders of shares in certif cated form, that the holder is to
surrender to the Corporation, in the manner and at the place designated, his, her or its certificate
or certificates representing the shares of Preferred Stock to be redeerr�ed.
�f the Corporation receives, on or prior to the twentieth (2Qth) day after the date of delivery of the
Redemption Notice to a holder of Preferred Stock, written notice from such holder that such holder
elects to exciude frorr� the redernption provided in this Section G, sorr�e or all of his, hers or its
shares of Preferred Stock registered on the books of the Corporation in the name of such holder at
the time of the Corporation's receipt of such notice shall thereafter be "Excluded Sha�es."
Excluded Shares shall not be redeemed or redeemable pursuant to this Section 6, whether on such
Redemption Date or thereafter.
6,3 Surrender of Certificates; Payment. On or before the applicable
Rederr�ptinn Date, each ho�der of shares of Preferred Stock to be redeerr�ed on such Redernption
Date, unless such ho�der has exercised his, her or its right to convert such shares as provided in
Sectinn 4, sha�l, if a hnider nf shares in certificated fnrrn, swrender the certificate or certificates
representing such shares (or, if such registered holder aileges that such certif cate has been lost,
stnien nr destrnyed, a inst C�IiifiC�t� affidavit and agreernent reasnnabiy �CC�pi��?I� tn the
Corporation to indemnify the Corporation against any claim that may be made against the
21
COI'p01'�tlOri OIl �CCOlirit Of i1i� �1����f� �OSS, i1i�f� OI' f��Sh"ElCii0I1 Of Si1CY1 C�IiifiC�i�� t0 i1i�
Corporation, in the manner and at the place designated in the Redemption Notice, and thereupon
the Redemption Price for such shares shall be payable to the order of the person whose name
appears on such certifcate or certificates as the owner thereof. In the event �ess than al� nf the
shares of Preferred Stock represented by a certificate are redeerr�ed, � I1�W C�I'iifiC�i�, inshurr�ent,
or book enhy representing the unredeerned shares of Preferred Stock shail prorr�pt�y be issued to
such holder.
f�.4 Ri�hts Subsequent tn Redernptinn. If the Redernptinn Nntice sha�l
have been duly given, and if on the applicabTe Redemption Date the Redemption Price payabTe
upon redemption of the shares of Preferred Stock to be redeemed on such Redemption Date is paid
or tendered for payment or deposited with an independent payment agent with irrevocable
instructions so as to be available therefor in a timely manner, then notwithstanding that any
certificates evidencing any nf the shares nf Preferred Stnck sn ca�led fnr redernptinn sha�l nnt have
been surrendered, C�tVIf��I1CIS WI�YI 1'�SpOCt i0 SlTC�'l S�1'�S Of Pl'�f�IT0C1 StOCk S�'l��l C��S� i0 �CCI'lT�
after such Redemption Date and a11 rights with respect to such shares shall forthwith after the
Redemption Date terminate, except only the right of the holders to receive the Redemption Price
without interest upon surrender of any such certificate or certificates therefor provided that in the
event that shares of Preferred Stock are not redeemed due to a default in payment by the
Corporation or because the Corporation does not have sufficient Iegaily available funds, such
shares nf Preferred Stnck shal� rerr�ain nutstanding and shal� be entit�ed tn al� nf the rights and
preferences provided herein until redeemed.
7. Redeemed or 4therwise Aequired Shares. Any shares of Preferred Stock
that are redeerr�ed nr ntherwise acquired by the Cnrpnratinn nr any nf its subsidiaries shail be
automaticalTy and immediately cancelled and retired and shall not be reissued, sold or transferred.
Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted
tn the hniders nf Preferred Stnck fn��nwing redernptinn.
8. Waiver. Except as otherwise set forth herein, (a) if there is only one (1)
series of Preferred Stock issued and outstanding, any of the rights, powers, preferences and other
terrr�s nf the Preferred Stnck set fnrth herein rnay be waived nn beha�f nf a�l hn�ders nf Preferred
Stock by the affirmative written consent or vote of the holders of at least a majority of the shares
of Preferred Stock then outstanding and (b) at any time more than one (1) series of Preferred Stock
is issued and outstanding, any of the rights, powers, preferences and other terms of any series of
Preferred Stock set forth herein may be waived on behalf of a1I holders of such series of Preferred
Stock by the affirmative written consent or vote of the holders of at least a majority of the shares
nf such series nf Preferred Stnck then nutstanding.
9. Notiees. Any notice required or perrr�itted by the provisions of this
ARTICLE N tn be given tn a hnider nf shares nf Preferred Stnck shali be rr�ai�ed, pnstage prepaid,
to the post office address last shown on the records of the Corporation, or given by eiectronic
cnrr�rnunicatinn in cnrr�p�iance with the prnvisinns nf the Genera� Cnrpnratinn Law, and shall be
deemed sent upon such mailing or electronic transmission.
22
aRTIczE v
�ubjec� �n any adclitianal va�e rec�uirecl by this Certifcate nf Incarpora�ian ar By�aws, i�
fiart�ierar�ce ancl nat in Iimitatian af tl�e pawers canferred by statute, �he Board of Direetnrs is
expressly aut�orizeci to rr�ake, repeal, alter, amer�d anci rescir�d any or ai� of the By�aws of the
Corporaiion.
ARTICLE VI
�ubject ta ar�y additianal vn�e required by �is Certifca�e nf Inca�paratian, the nu.rr�ber af
directors of ��e Co�poratior� shal� be determined ir� ihe manr�er set forth in the Byiaws of ��e
Corporation. Each director shall be er�titled to one (1) vote on each �natter presenieci io the Board
afDirectars; pravicleci, �iowever, that, sa lang as �he halclers af �eries A Preferrecl Stacic are er�titlecl
�a eiec� the Series A Directars, �e affiirrr�ative �ate af the Series A Directars shall be requ.irecl fnr
�he authariza�ian by �e Baard af Directors af ar�y af the matters set fo�-�i in �ectian S.5 af the
Investars' Righis Agreement, da�ecl as af Oe�aber 20, 2023, by ar�d a�nar�g the Carparatiar� ancl the
ot�er parties there�o, as such agreement may be arr�enciecl frorr� tirr�e to iime.
ARTICLE VII
Electians af directars r�eed r�ot be by written baiiot ur�less the Bylaws af the Ca�paratian
shall sa pravide.
ARTICLE VIII
Meetir�gs af stackhalclers may be he1cl wi�ir� ar withaut the �tate af DeIaware, as the
ByIaws ai the Carpnration �nay pravicle. 'i'�e baoks af �ie Co�pora�ia� may be kept nutside �he
State of Delaware at sucl� place or places as rr�ay be designated frorr� �ime io tirr�e by tl�e Boarci of
Directors or in ti�e Bylaws of ti�e Corporaiion.
ARTICLE IX
Ta �he fuilest extent permitted by law, nn clireciar ar aificer af �ie Corparatian s�aIl be
persor�al�y liable to the Corporatior� or its stockholciers for mone�ary darrmages for any breac� of
ficiuciary duty as a direc�or or off cer. If the Genera� Corporation Law or a�y other �aw of�e State
of Delaware is amenclecl after approval by the stockholders of �his ARTICLE IX �o au�orize
corporaie actior� fi.�rt�er eliminati�g or lirr�itir�g ��e persor�a� liabiiity of directors or offcers, ther�
the liability ai a directar or officer af �he Corpara�iar� s�ia�l be eiimina�ed ar �imitecl ta �he fulles�
exter�t permitted by the General Corpora�ion Law as so arr�er�ded.
Any repea� ar tnadif catinn of ihe faregair�g pro�isians af ��is ARTICLE IX by the
s�nckhoiders af the Co�paratian sha1� nat adverseIy ai%c� ar�y right ar protectiar� of a clirec�ar ar
officer of the Corpora�ion existing ai the time of, or increase t�e liabiliiy of any director or officer
of ��e Corpora�ior� with respect to a�y acts or orr�issions of such director of off cer occurri�g prior
tn, su.c�i repeal ar rr�aclificatiar�.
23
ARTICLE X
To �e fuiies� extent per�nitteci by appiicabie �aw, �e Cnrpora�iar� shali pravide
incle�nnificatian af (ar�d advancerr�ent af expe�ses ta) clirec�nrs, aif cers anci ager�ts af �e
Corporaiion (anci any other persor�s to whicl� General Corporation Law permits the Corporaiion to
provide incierr�r�ificaiion) ��rough Byiaw provisions, agreerr�er�ts with suc� agents or other persons,
voie of stockholciers or clisir�teresteci directors or oiherwise, i� excess of the incierr�nifcaiior� a�d
advancemer�� o�ierwise permitted by �ec�ian 1�5 nf t1�e General Carporatian Law.
Any amendment, repeai or moc�ification of the foregoing provisions of this AATICLE X
shall na� (a} adverseiy affect ar�y rig�i� ar pra�ectia� af any directar, aff cer nr other agent af the
Ca�poratian existi�g at the tirr�e of such a�nencirr�er��, repeaI nr rr�aciification ar (b) ir�crease the
IiabiIity af any cliree�ar af �he Car�aaration with respect to a�y ac�s or o�nissiar�s af suc�i directar,
offcer or ager�t occurring prior to, suc� amenci�er�t, repeal or rnodifcatior�.
ARTICLE XI
'I`he Carparatian renaunees, ta tl�e fizliest exter�t permitted by �aw, any ir�terest ar
expectar�cy of the Corporation in, or in being offered an opporiu�ity to participate in, any Excluded
Opport�.ir�ity. Ar� "Excluded Opportunity" is a�y �natter, tra�saction or interest t�at is preser�ted
to, or acquirec�, creaiec� or cievelo�ed by, or which o�herwise corr�es i�to �e possession of (i) ar�y
direc�or of tl�e Corporation w�o is r�ot an err�ployee of �he Corporation or any of its subsiciiaries,
ar (ii) ar�y halcler of Preferred S�ack ar any part��er, rr�ember, directar, stocic�aider, empinyee,
aifiIiate ar agent nf ar�y suc� hnlcler, nther than samea�e wl�a is an err�p�ayee of ��e Carparatian
or any of iis subsidiaries (ihe persons ir� clauses � a�c� ii , collectively, "Covered Pe�sons"),
uniess such matter, transaction or i�terest is presenieci to, or acc�uirec�, ereatec� or clevelo�ed by, or
o�i�erwise cornes i�to t�e possession of, a Covered Persor� expressly and solely in such Coverec�
Person's capaci�y as a ciirector of t�e Corporatior� while such Covereci Persor� is performing
services in suc� capaeity. Any repeal or rr�adification af t�iis ARTICLE XI wi�i a�ly be praspective
ancl wi�l r�ot affec� the rights ur�der ti�is ARTICLE XI ir� effect at �he tirne af the occurrer�ce af any
actions or omissions to act giving rise io liabi�ity. Noiwithstanc�i�g anyihing to the cor�trary
cor�taineci e�sewhere in this Certifcate of I�corporatio�, �he affrmative vote of the Requisite
Holciers and ho�ders of ai least a rr�ajority of the shares of Series A Preferrecl Stock outsta�ding
wi�l be requ.irecl ta atner�d nr repeal, or ta adapt ar�y pravisians ir�cor�sister�� with this ARTICLE
XI.
ARTICLE XII
Unless t�e Co�poratior� consents in writing to �he seleciion of ar� a�tert�a�ive for�.irr�, ihe
Court of Char�cery ir� the State of Delaware shal� be ii�e sole anc� exciusive for�.�m for any
stackha�der (including a ber�eficiai nwner) tn bring (i) ar�y cieri�ati�e actian ar praeeecling braug�i�
ar� behalf af the Carpnra�iar�, (ii) any actia� asserting a clairn af breach of ficiuciary cluty nwecl by
any ciirector, offcer or o�er err�ployee of �e Corporation io ihe Corporation or the Co�poraiion's
stockhoiders, (iii) any actior� asser�ir�g a c�airr� agains� ihe Corporatior�, its direciors, off cers or
err�ployees arising pursuar�t to any provision of t3�e Delaware General Corporation Law or �i�is
Certificate af Ir�carparatian ar ti�e Carnpar�y's byIaws ar (iv) any actian assertir�g a ciairr� against
�ie Ca�para�ian, it� directars, officers ar e�npioyees gaverned by ��ie internal affairs dactrine,
2�
except far, as ta eac� af (i) thraug� (iv) abave, ar�y clairn as �n w�ich the Caurt af Chaneery
determi�es ihat there is an inciispensable party r�ot subject to �e jurisdiciior� of ihe Court of
Cma�cery (anci the inc�isper�sabie party cioes not conser�� to t3�e persor�a� jurisdiction of the Court of
Char�cery wi�iin ter� (10) days %llnwir�g suc�i determir�aiiar�), whic�i is vested in ��ie exc�usive
jurisdictian af a court ar fon��n o�ier �ia� tl�e Caurt af Chancery, ar fpr wl�ieh �he Caur� af
Cha�cery claes na� �iave subject rr�atter jurisclictian. If any prnvisiar� nr pravisiar�s nf this
ARTICLE XII sl�a�l be �eid �a be i�valid, illegal ar unenfarceable as appliec� tn ar�y persar� nr
entity ar circurr�stance for any reason w�iatsoever, �ier�, ta the fizlies� extent per�nitteci by Iaw, the
validity, Iegality anci enforceabiiity of such provisions in any other circumstar�ce and of the
remair�ir�g pravisior�s ai this ARTICLE XII (including, withaut Iirni�ation, eac� partion ai at�y
ser��er�ce c�f this ARTICLE XII car�taining any suc�i pravisior� held. �c� be ir��aIicl, illegaI ar
uner�farceabie tha� is r�at itself heid ta be in�alicl, il�egal or ur�enfarceab�e) anci the app�icatian of
suc� pravision tn at�ier persar�s ar entities anci circu.�nstances shali nn� in ar�y way be affected or
impairec� ihereby.
�*x�**x�����*���x�*����x�*��*�
25
Fxecution Version
I, THE UNDERSIGNED, being the incnrpnratnr, fnr the pwpnse nf fnrrr�ing a corporation
pursuant to the Delaware GeneraT Corporation Law, do make this Certificate of �ncorporation,
hereby acknowledging, decTaring, and certifying that the foregoing Certificate of Incorporatian is
my act and deed and that the facts herein stated are true, and have accordingly hereunto set
rr�y hand this 19th day of October, 2423.
�ncorporator
�
By : , � �` �
Nar�e: Jared Pnpe
26
Exhibit C
4868-4531-3671.1
Exhibit C
Certificate of Incorporation of Converted Entity
Delaware Division of Corporations
401 Federal Street – Suite 4
Dover, DE 19901
Ph: 302-739-3073
Certificate of Conversion from a
Delaware or Non-Delaware Limited Liability Company
to a Delaware Corporation
Dear Sir or Madam:
Attached please find a form for a Certificate of Conversion from a Delaware or Non-
Delaware Limited Liability Company to a Delaware Corporation to be filed in accordance
with Section 265 of the General Corporation Law of the State of Delaware. The fee to file the
Certificate of Conversion is $184.00. If the document is more than 1 page, please include
$9.00 for each additional page. A Certificate of Incorporation is required to be filed
simultaneously with the Certificate of Conversion. Attached for your convenience, please
find a form for a Stock Certificate of Incorporation; forms for a Non-Stock Certificate of
Incorporation can be found on our website. The fee for filing the Certificate of Incorporation
is a minimum of $109; the amount of authorized stock and par value listed in the Certificate
may affect the filing fee. If the document is more than 1 page, please include $9.00 for each
additional page. Please submit the filings with 1 cover sheet putting the Conversion first.
You will receive a stamped “filed” copy of the submitted document. Certified copies may be
requested for an additional $50 each. Expedited services are available. Please contact our
office concerning these fees or you may consult our fee chart at corp.delaware.gov .
Before the Certificate can be filed, all taxes due to the State of Delaware through the
effective date of the conversion must be paid by the converting Delaware limited liability
company. Please contact the Franchise Tax Section prior to submitting the document for
filing to determine any Annual Taxes due. Checks should be made payable to “Delaware
Secretary of State”.
For the convenience of processing your order in a timely manner, please include a
cover letter with your name, address and telephone/fax number to enable us to contact you if
necessary. Please make sure you thoroughly complete all information requested on this form.
It is important that the execution be legible, we request that you print or type the name of the
person signing under the signature line.
Thank you for choosing Delaware as your corporate home. Should you require
further assistance in this or any other matter, please don’t hesitate to call us at (302) 739-
3073.
Sincerely,
Division of Corporations
Department of State
rev. 08/2023
Special Instructions – Certificate of Conversion for a Limited Liability
Company into a Delaware Corporation
This form is to be used as a Template only. The following instructions
will help you in correctly completing your Conversion Certificate. The
instructions are numbered to correspond with the article being
referenced.
1.List the jurisdiction where and date on which the limited liability
company was first formed.
2. List the jurisdiction of the limited liability company immediately
prior to the filing of the Certificate of Conversion.
3. List the name of the limited liability company immediately prior
to the filing of the Certificate of Conversion.
4. List the name of the corporation as stated on the attached
Certificate of Incorporation.
Execution Block - The document must be signed by any person who
is authorized to sign the Certificate of Conversion on behalf of
the limited liability company pursuant to Section 265(i) of Title 8.
The name of the person must be typed or written legibly
underneath the signature.
This form contains the basic information required by statute; if you
need to add additional information permitted by statute you may draft a
new document. Please feel free to call our office at 302-739-3073 for
assistance in completing this form or visit our website at
corp.delaware.gov.
Sincerely,
Delaware Division of Corporations
STATE OF DELAWARE
CERTIFICATE OF CONVERSION
FROM A LIMITED LIABILITY COMPANY TO A
CORPORATION PURSUANT TO SECTION 265 OF
THE DELAWARE GENERAL CORPORATION LAW
1. The jurisdiction where the limited liability company was first formed is
_________________________________________________________________
and the date the limited liability company first formed is ___________________.
2. The jurisdiction immediately prior to filing this Certificate is________________.
3. The name of the limited liability company immediately prior to filing this
Certificate is ______________________________________________________.
4. The name of the corporation as set forth in the Certificate of Incorporation is
_________________________________________________________________.
IN WITNESS WHEREOF, the undersigned have executed this Certificate on the
___________day of _________________, A.D._______________.
By:____________________________
Authorized Person
Name:____________________________
Print or Type
Exhibit D
4868-4531-3671.1
Exhibit D
Plan of Conversion
PLAN OF CONVERSION Page 1 of 4
WORK SHIELD, LLC
4860-8980-9543.1
PLAN OF CONVERSION
OF
WORK SHIELD, LLC
(a Texas Limited Liability Company)
INTO
WORK SHIELD, INC.
(a Delaware Corporation)
Plan October 19, 2023, is made
TBOC Work
Shield, LLC, a Texas limited liability company Converting Entity
W I T N E S S E T H:
WHEREAS, the Converting Entity is a limited liability company duly organized and
validly existing under the laws of the State of Texas;
WHEREAS, the Board of Managers and members holding the requisite number of units of
the Converting Entity deem it advisable and in the best interests of the Converting Entity that the
Converting Entity convert into Work Shield, Inc., a Delaware corporation Converted
Entity
terms and provisions of this Plan;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, in accordance with the provisions of applicable law, the parties hereby agree
as follows:
ARTICLE I
General
1.01 The Conversion. The members of the Converting Entity agree to effect the
conversion, subject to the terms and conditions set forth in this document. This Plan will be
submitted to the members of the Converting Entity entitled to vote with respect to the subject
matter hereof for adoption and approval in accordance with the TBOC by written consent executed
by the members of the Converting Entity.
1.02 Converted Entity. Upon the [Effective Date], as defined in Section [1.08] below,
the conversion will be accomplished by converting the Converting Entity into the Converted Entity
and the existence of the Converting Entity will continue in the form of the Converted Entity in
accordance with the [Texas Business Organizations Code].
1.03 Organizational Form of Converted Entity. The Converted Entity will be a
corporation formed under the laws of the State of Delaware.
PLAN OF CONVERSION Page 2 of 4
WORK SHIELD, LLC
4860-8980-9543.1
1.04 Certificate of Incorporation of Converted Entity. Upon the Effective Date, the
Certificate of Incorporation attached as Exhibit A will be the Certificate of Incorporation of the
Converted Entity, until altered, amended or repealed.
1.05 Properties and Liabilities.
(a) Upon the Effective Date, the Converting Entity will be converted into the
Converted Entity and the existence of the Converting Entity will continue, without interruption, in
the form of the Converted Entity. The Converted Entity will, from and after the Effective Date,
possess all the rights, privileges, immunities, powers and franchises of whatsoever nature and
description, of a public as well as of a private nature, and be subject to all the restrictions,
disabilities and duties of the Converting Entity.
(b) The Converted Entity will continue to own all rights, title and interest in
property, real, personal and mixed, and all debts on whatever account, for stock subscriptions as
well as all other things in action belonging to or due to the Converting Entity. All property, rights,
privileges, immunities, powers and franchises, and all and every other interest will be thereafter as
effectively the property of the Converted Entity as they were of the Converting Entity, and the title
to any real estate vested by deed or otherwise and any leasehold interests in the Converted Entity
will not revert or be in any way impaired by reason of the conversion.
(c) All liabilities or obligations of the Converting Entity will continue to be
liabilities and obligations of the Converted Entity without impairment or diminution by reason of
the conversion. All rights of creditors or other parties with respect to or against the members of
the Converting Entity, in their capacity as members, in existence as of the Effective Date, will
continue to exist as to those liabilities and obligations, and be pursued by those creditors and
obligees, as if the Conversion had not occurred. All liens upon the property of the Converting
Entity will be preserved unimpaired, and all debts, liabilities, obligations and duties of the
Converting Entity will continue to exist and will henceforth attach to the Converted Entity, and
may be enforced against the Converted Entity to the same extent as if the debts, liabilities,
obligations and duties had been incurred or contracted by it.
(d) Any claim, action or proceeding, whether civil, criminal or administrative,
pending by or against the Converting Entity or the members, in their capacity
as members, may be continued by or against the Converted Entity or the owners as the case may
be, without any substitution of parties.
1.06 Effective Date. The conversion will be effective on the date the Secretary of State
of the State of Texas and the Secretary of State of the State of Delaware each accepts the filing of
the Certificate of Conversion related to the conversion contemplated by this Plan Effective
Date
ARTICLE II
Ownership of Converted Entity and Federal Income Tax Status
PLAN OF CONVERSION Page 3 of 4
WORK SHIELD, LLC
4860-8980-9543.1
2.01 Conversion of Membership Interests. On the Effective Date, (i) all of the
outstanding Class A Preferred Units of the Converting Entity will be converted on a one-for-one
basis into shares of common stock in the Converted Entity without further deed or act of the
members of the Converting Entity, (ii) all of the outstanding Common Units of the Converting
Entity will be converted on a one-for-one basis into shares of common stock in the Converted
Entity without further deed or act of the members of the Converting Entity, and (iii) all of the
outstanding Incentive Units of the Converting Entity will be converted into options to purchase
the same number of shares of common stock in the Converted Entity as number of Incentive Units
in the Converting Entity,
2023 Equity Incentive Plan, without further deed or act of the members of the Converting Entity.
2.02 Federal Income Tax Status partnership
that term is defined in the Internal Revenue Code. It is the intention of the parties to this Plan of
Conversion that the Converted Entity will for federal income tax purposes.
[Signature page follows]
PLAN OF CONVERSION Page 4 of 4
WORK SHIELD,LLC
4860-8980-9543.1
This Plan of Conversion for Work Shield, LLC is executed as of the date first written
above and to be effective as of the Effective Date.
WORK SHIELD, LLC
By: _____________________________
Name: Jared Pope
Title: Chief Executive Officer
4860-8980-9543.1
EXHIBIT A
Certificate Of Incorporation
[See attached]