Attached files
Exhibit 3.1
SIXTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
CERTIFICATE OF INCORPORATION
OF
IRONPLANET.COM, INC.
The undersigned, Gregory J. Owens and John V. Bautista, hereby certify that:
1. They are the duly elected and acting President and Chief Executive Officer, and Secretary,
respectively, of IronPlanet.com, Inc., a Delaware corporation.
2. The Certificate of Incorporation of this corporation was originally filed with the
Secretary of State of Delaware on January 6, 1999.
3. The original name of this corporation was Federal Sales Corp.
4. The Certificate of Incorporation of this corporation shall be amended and restated to read
in full as follows:
“ARTICLE I
The name of this corporation is IronPlanet.com, Inc. (the “Corporation”).
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is
The Prentice—Hall Corporation System, Inc., 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Prentice-Hall Corporation System.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law.
ARTICLE IV
(A) Classes of Stock. The Corporation is authorized to issue two classes of stock to
be designated, respectively, “Common Stock” and “Preferred Stock.” The total
number of shares which the Corporation is authorized to issue is One Hundred Sixteen Million
(116,000,000) shares, each with a par value of $0.001 per share. Seventy Three Million
(73,500,000) shares shall be Common Stock and Forty Two Million Five Hundred Thousand (42,500,000)
shares shall be Preferred Stock.
(B) Rights, Preferences and Restrictions of Preferred Stock. The Preferred Stock
authorized by this Amended and Restated Certificate of Incorporation may be issued from time to
time in one or more series. The first series of Preferred Stock shall be designated “Series
A-1 Preferred Stock” and shall consist of Six Million Four Hundred Thousand (6,400,000)
shares;
the second series of Preferred Stock shall be designated “Series A Preferred Stock”
and shall consist of Seventeen Million (17,000,000) shares; the third series of Preferred Stock
shall be designated “Series B Preferred Stock” and shall consist of Sixteen Million Six
Hundred Thousand (16,600,000) shares; and the fourth series of Preferred Stock shall be designated
“Series C Preferred Stock” and shall consist of Two Million Five Hundred Thousand
(2,500,000) shares. The rights, preferences, privileges, and restrictions granted to and imposed
on the Series A-1 Preferred Stock, Series A Preferred Stock, Series B Preferred Stock, and Series C
Preferred Stock are as set forth below in this Article IV(B).
1. Dividend Provisions. The holders of shares of Series A Preferred Stock, Series B
Preferred Stock, and Series C Preferred Stock shall be entitled to receive dividends, out of any
assets legally available therefor, prior and in preference to any declaration or payment of any
dividend (payable other than in Common Stock or other securities and rights convertible into or
entitling the holder thereof to receive, directly or indirectly, additional shares of Common Stock
of the Corporation) on the Series A-1 Preferred Stock and Common Stock of the Corporation, at the
rate of (a) $0.05 per share (as adjusted for stock splits, stock dividends, reclassification and
the like) per annum on each outstanding share of Series A Preferred Stock, (b) $0.24 per share (as
adjusted for stock splits, stock dividends, reclassification and the like) per annum on each
outstanding share of Series B Preferred Stock, and (c) $0.32 per share (as adjusted for stock
splits, stock dividends, reclassification and the like) per annum on each outstanding share of
Series C Preferred Stock, payable when, as and if declared by the Board of Directors; and the
holders of shares of Series A-1 Preferred Stock shall be entitled to receive dividends, out of any
assets legally available therefor, prior and in preference to any declaration or payment of any
dividend (payable other than in Common Stock or other securities and rights convertible into or
entitling the holder thereof to receive, directly or indirectly, additional shares of Common Stock
of the Corporation) on the Common Stock of the Corporation, at the rate of $0.04 per share (as
adjusted for stock splits, stock dividends, reclassification and the like) per annum on each
outstanding share of Series A-1 Preferred Stock, payable when, as and if declared by the Board of
Directors. Such dividends shall not be cumulative. In addition to the dividends set forth above,
if the corporation shall declare a dividend or make any other distribution to holders of Common
Stock, then the Board of Directors shall declare, and the holders of Preferred Stock shall be
entitled to receive, a dividend or distribution in an amount equal to the amount of such dividend
or distribution received by a holder of the number of shares of Common Stock for which such share
of Preferred Stock is convertible on the record date for such dividend or distribution.
2. Liquidation.
(a) Series A, Series B, and Series C Preference. In the event of any liquidation,
dissolution or winding up of the Corporation, either voluntary or involuntary, subject to the
rights of series of Preferred Stock that may from time to time come into existence, the holders of
the Series A Preferred Stock, Series B Preferred Stock, and Series C Preferred Stock shall be
entitled to receive, prior and in preference to any distribution of any of the assets of the
Corporation to the holders of Series A-1 Preferred Stock and the holders of Common Stock by reason
of their ownership thereof, an amount per share equal to (i) $0.655 per share (as adjusted for
stock splits, stock dividends, reclassifications and the like) for each share of Series A
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Preferred Stock then held by them, plus declared but unpaid dividends (ii) $3.00 per share (as adjusted for
stock splits, stock dividends, reclassifications and the like) for each share of Series B Preferred
Stock then held by them, plus declared and unpaid dividends and (iii) the actual purchase price per
share paid by each holder, as certified by the Secretary of the Corporation (as adjusted for stock
splits, stock dividends, reclassifications and the like) for each share of Series C Preferred Stock
then held by them, plus declared and unpaid dividends. If, upon the occurrence of such event, the
assets and funds thus distributed among the holders of the Series A Preferred Stock, Series B
Preferred Stock, and Series C Preferred Stock shall be insufficient to permit the payment to such
holders of the full aforesaid preferential amounts, then, subject to the rights of series of
Preferred Stock that may from time to time come into existence, the entire assets and funds of the
Corporation legally available for distribution shall be distributed ratably among the holders of
the Series A Preferred Stock, Series B Preferred Stock, and Series C Preferred Stock in proportion
to the preferential amount each such holder is otherwise entitled to receive.
(b) Series A-1 Preference. Upon completion of the distribution required by Section
2(a) above and any other distribution that may be required with respect to series of Preferred
Stock that may from time to time come into existence, if assets remain in the Corporation, the
holders of the Series A-1 Preferred Stock shall be entitled to receive, prior and in preference to
any distribution of any of the assets of the Corporation to the holders of Common Stock by reason
of their ownership thereof, an amount per share equal to $0.50 per share (as adjusted for stock
splits, stock dividends, reclassifications and the like) for each share of Series A-1 Preferred
Stock then held by them, plus declared but unpaid dividends. If, upon the occurrence of such
event, the assets and funds thus distributed among the holders of the Series A-1 Preferred Stock
shall be insufficient to permit the payment to such holders of the full aforesaid preferential
amounts, then, subject to the rights of series of Preferred Stock that may from time to time come
into existence, the entire assets and funds of the Corporation legally available for distribution
shall be distributed ratably among the holders of the Series A-1 Preferred Stock in proportion to
the preferential amount each such holder is otherwise entitled to receive.
(c) Remaining Assets. Upon the completion of the distributions required by Sections
2(a) and 2(b) above and any other distribution that may be required with respect to series of
Preferred Stock that may from time to time come into existence, if assets remain in the
Corporation, the holders of the Common Stock of the Corporation shall receive all of the remaining
assets of the Corporation. Anything to the contrary notwithstanding, in the event of a liquidation
which results in the winding up of the Company, the holders of the Preferred Stock shall be
entitled to receive an amount equal to the greater of: (x) the amounts set forth in subsection
2(a) and 2(b) above; or (y) the value in liquidation, dissolution or winding up, of “Equivalent
Shares,” assuming, solely for the purpose of calculating this amount that all of the shares of
Preferred Stock had been converted into Common Stock prior to such liquidation, dissolution or
winding up of this corporation. As used herein “Equivalent Shares” shall mean with respect to any
number of shares of Preferred Stock, the number of shares of Common Stock into which such shares of
such series of Preferred Stock are convertible.
(d) Certain Acquisitions.
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(i) Deemed Liquidation. For purposes of this Section 2, a liquidation, dissolution or
winding up of the Corporation shall be deemed to occur if the Corporation shall sell, convey, or
otherwise dispose of all or substantially all of its property or business or merge into or
consolidate with any other corporation (other than a wholly-owned subsidiary corporation) or effect
any other transaction or series of related transactions in which more than fifty percent (50%) of
the voting power of the Corporation is disposed of, provided that this Section 2(d)(i)
shall not apply to a merger effected exclusively for the purpose of changing the domicile of the
Corporation.
(ii) Valuation of Consideration. In the event of a deemed liquidation as described in
Section 2(d)(i) above, if the consideration received by the Corporation is other than cash, its
value will be deemed its fair market value. Any securities shall be valued as follows:
(A) Securities not subject to investment letter or other similar restrictions on free
marketability:
(1) If traded on a securities exchange or The Nasdaq Stock Market, the value shall be deemed
to be the average of the closing prices of the securities on such exchange over the thirty-day
period ending three (3) days prior to the closing;
(2) If actively traded over-the-counter, the value shall be deemed to be the average of the
closing bid or sale prices (whichever is applicable) over the thirty-day period ending three (3)
days prior to the closing; and
(3) If there is no active public market, the value shall be the fair market value thereof, as
mutually determined by the Corporation and the holders of at least a majority of the voting power
of all then outstanding shares of Preferred Stock; provided however, if the value determined under
this Section 2(d)(ii)(A)(3) would result in the holders of a series of Preferred Stock receiving in
the deemed liquidation as described in Section 2(d)(i) above, with respect to each share of such
series, less than the original purchase price of each share of such series, then the determination
of such value shall require the consent of the holders of at least two-thirds (2/3rds) of the then
outstanding shares of such series.
(B) The method of valuation of securities subject to investment letter or other restrictions
on free marketability (other than restrictions arising solely by virtue of a stockholder’s status
as an affiliate or former affiliate) shall be to make an appropriate discount from the market value
determined as above in Section 2(d)(ii)(A) to reflect the approximate fair market value thereof, as
mutually determined by the Corporation and the holders of at least a majority of the voting power
of all then outstanding shares of Preferred Stock.
(iii) Notice of Transaction. The Corporation shall give each holder of record of
Preferred Stock written notice of such impending transaction not later than ten (10) days prior to
the stockholders’ meeting called to approve such transaction, or ten (10) days prior to the closing
of such transaction, whichever is earlier, and shall also notify such holders in writing of the
final approval of such transaction. The first of such notices shall
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describe the material terms
and conditions of the impending transaction and the provisions of this Section 2, and the
Corporation shall thereafter give such holders prompt notice of any material changes. The
transaction shall in no event take place sooner than twenty (20) days after the Corporation has
given the first notice provided for herein or sooner than twenty (20) days after the Corporation
has given notice of any material changes provided for herein; provided, however, that such periods
may be shortened upon the written consent of the holders of Preferred Stock that are entitled to
such notice rights or similar notice rights and that represent at least two-thirds (2/3) of the
voting power of all then outstanding shares of such Preferred Stock.
(iv) Effect of Noncompliance. In the event the requirements of this Section 2(d) are
not complied with, the Corporation shall forthwith either cause the closing of the transaction to
be postponed until such requirements have been complied with, or cancel such transaction, in which
event the rights, preferences and privileges of the holders of the Preferred Stock shall revert to
and be the same as such rights, preferences and privileges existing immediately prior to the date
of the first notice referred to in Section 2(d)(iii) hereof.
3. Redemption. The Preferred Stock is not redeemable.
4. Conversion. The holders of the Series A-1 Preferred Stock, Series A Preferred
Stock, Series B Preferred Stock, and Series C Preferred Stock shall have conversion rights as
follows (the “Conversion Rights”):
(a) Right to Convert. Subject to Section 4(c), each share of Series A-1 Preferred
Stock, each share of Series A Preferred Stock, each share of Series B Preferred Stock, and each
share of Series C Preferred Stock shall be convertible, at the option of the holder thereof, at any
time after the date of issuance of such share, at the office of the Corporation or any transfer
agent for such stock, into such number of fully paid and nonassessable shares of Common Stock as is
determined, (i) with respect to each share of Series A-1 Preferred Stock, by dividing $0.50 by the
Conversion Price applicable to such share, determined as hereafter provided, in effect on the date
the certificate is surrendered for conversion, (ii) with respect to each share of Series A
Preferred Stock, by dividing $0.655 by the Conversion Price applicable to such share, determined as
hereafter provided, in effect on the date the certificate is surrendered for conversion, (iii) with
respect to each share of Series B Preferred Stock, by dividing $3.00 by the Conversion Price
applicable to such share, determined as hereafter provided, in effect on the date the certificate
is surrendered for conversion, and (iv) with respect to each share of Series C Preferred Stock, by
dividing $4.00 by the Conversion Price applicable to such share, determined as hereafter provided,
in effect on the date the certificate is surrendered for conversion. The initial Conversion Price
per share of Series A-1 Preferred Stock shall be $0.50, the initial Conversion Price per share of
Series A Preferred Stock shall be $0.655, the initial Conversion Price per share of Series B
Preferred Stock shall be $3.00, and the initial Conversion Price per share of Series C Preferred
Stock shall be $4.00. Such initial Conversion Prices shall be subject to adjustment as set forth
in Section 4(d).
(b) Automatic Conversion. Each share of Series A-1 Preferred Stock, each share of
Series A Preferred Stock, each share of Series B Preferred Stock, and each share of Series C
Preferred Stock shall automatically be converted into shares of Common Stock
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at the Conversion
Price at the time in effect for such share immediately upon the earlier of (i) except as provided
below in Section 4(c), the Corporation’s sale of its Common Stock in a firm commitment underwritten
public offering pursuant to a registration statement under the Securities Act of 1933, as amended
(the “Securities Act”), the public offering price of which is not less than $6.00 per share
(appropriately adjusted for any stock split, dividend, combination or other recapitalization) and
which results in aggregate cash proceeds to the Corporation of $20,000,000 (net of underwriting
discounts and commissions) (ii) the date specified by written consent or agreement of the holders
of a majority of the then outstanding shares of Preferred Stock and (iii) with respect to the
Series A-1 Preferred Stock, the date specified by written consent or agreement of the holders of a
majority of the then outstanding shares of Series A-1 Preferred Stock.
(c) Mechanics of Conversion. Before any holder of Series A-1 Preferred Stock, Series
A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock shall be entitled to
convert the same into shares of Common Stock, he shall surrender the certificate or certificates
therefor, duly endorsed, at the office of the Corporation or of any transfer agent for such series
of Preferred Stock, and shall give written notice to the Corporation at its principal corporate
office, of the election to convert the same and shall state therein the name or names in which the
certificate or certificates for shares of Common Stock are to be issued. The Corporation shall, as
soon as practicable thereafter, issue and deliver at such office to such holder of Preferred Stock,
or to the nominee or nominees of such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid. Such conversion shall
be deemed to have been made immediately prior to the close of business on the date of such
surrender of the shares of such series of Preferred Stock to be converted, and the person or
persons entitled to receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares of Common Stock as of such
date. If the conversion is in connection with an underwritten offering of securities registered
pursuant to the Securities Act the conversion may, at the option of any holder tendering such
Preferred Stock for conversion, be conditioned upon the closing with the underwriters of the sale
of securities pursuant to such offering, in which event the person(s) entitled to receive Common
Stock upon conversion of such Preferred Stock shall not be deemed to have converted such Preferred
Stock until immediately prior to the closing of such sale of securities.
(d) Conversion Price Adjustments of Preferred Stock for Certain Splits and
Combinations. The Conversion Price of the Series A-1 Preferred Stock, the Conversion Price of
the Series A Preferred Stock, the Conversion Price of the Series B Preferred Stock and the
Conversion Price of the Series C Preferred Stock shall be subject to adjustment from time to time
as follows:
(i) Stock Splits and Dividends. In the event the Corporation should at any time or
from time to time after the date upon which any shares of Series C Preferred Stock were first
issued (the “Purchase Date”) fix a record date for the effectuation of a split or
subdivision of the outstanding shares of Common Stock or the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in additional shares of Common
Stock or other securities or rights convertible into, or entitling the holder thereof to
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receive
directly or indirectly, additional shares of Common Stock (hereinafter referred to as “Common
Stock Equivalents”) without payment of any consideration by such holder for the additional
shares of Common Stock or the Common Stock Equivalents (including the additional shares of Common
Stock issuable upon conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed), the Conversion Price
of the Series A-1 Preferred Stock, the Conversion Price of the Series A
Preferred Stock, the Conversion Price of the Series B Preferred Stock and the Conversion Price
of the Series C Preferred Stock shall be appropriately decreased so that the number of shares of
Common Stock issuable on conversion of each share of such series shall be increased in proportion
to such increase of the aggregate of shares of Common Stock outstanding and those issuable with
respect to such Common Stock Equivalents with the number of shares issuable with respect to Common
Stock Equivalents determined from time to time as provided in Section 4(d)(ii) below.
(ii) Reverse Stock Splits. If the number of shares of Common Stock outstanding at any
time after the Purchase Date is decreased by a combination of the outstanding shares of Common
Stock, then, following the record date of such combination, the Conversion Price for the Series A-1
Preferred Stock, the Conversion Price of the Series A Preferred Stock, the Conversion Price of the
Series B Preferred Stock and the Conversion Price of the Series C Preferred Stock shall be
appropriately increased so that the number of shares of Common Stock issuable on conversion of each
share of such series shall be decreased in proportion to such decrease in outstanding shares.
(iii) The following provisions shall apply for purposes of this Section 4(d):
(A) The aggregate maximum number of shares of Common Stock deliverable upon conversion or
exercise of Common Stock Equivalents (assuming the satisfaction of any conditions to convertibility
or exercisability, including, without limitation, the passage of time, but without taking into
account potential antidilution adjustments) shall be deemed to have been issued at the time such
Common Stock Equivalents were issued.
(B) In the event of any change in the number of shares of Common Stock deliverable or in the
consideration payable to the Corporation upon conversion or exercise of such Common Stock
Equivalents including, but not limited to, a change resulting from the antidilution provisions
thereof, the Conversion Price of the Series A-1 Preferred Stock, the Conversion Price of the Series
A Preferred Stock, the Conversion Price of the Series B Preferred Stock and the Conversion Price of
the Series C Preferred Stock, to the extent in any way affected by or computed using such Common
Stock Equivalents, shall be recomputed to reflect such change, but no further adjustment shall be
made for the actual issuance of Common Stock or any payment of such consideration upon the exercise
of any such options or rights or the conversion or exchange of such securities.
(C) Upon the termination or expiration of the convertibility or exercisability of any such
Common Stock Equivalents, the Conversion Price of the Series A-1 Preferred Stock, the Conversion
Price of the Series A Preferred Stock, the
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Conversion Price of the Series B Preferred Stock and the Conversion Price of the Series C
Preferred Stock, to the extent in any way affected by or computed using such Common Stock
Equivalents, shall be recomputed to reflect the issuance of only the number of shares of Common
Stock (and Common Stock Equivalents which remain convertible or exercisable) actually issued upon
the conversion or exercise of such Common Stock Equivalents.
(e) Other Distributions. In the event the Corporation shall declare a distribution
payable in securities of other persons, evidences of indebtedness issued by the Corporation or
other persons, assets (excluding cash dividends) or options or rights not referred to in Section
4(d)(i), then, in each such case for the purpose of this Section 4(e), the holders of Series A-1
Preferred Stock, the holders of Series A Preferred Stock, the holders of the Series B Preferred
Stock and the holders of the Series C Preferred Stock shall be entitled to a proportionate share of
any such distribution as though they were the holders of the number of shares of Common Stock of
the Corporation into which their shares of Preferred Stock are convertible as of the record date
fixed for the determination of the holders of Common Stock of the Corporation entitled to receive
such distribution.
(f) Recapitalizations. If at any time or from time to time there shall be a
recapitalization of the Common Stock (other than a subdivision, combination or merger or sale of
assets transaction provided for elsewhere in this Section 4 or Section 2) provision shall be made
so that the holders of the Series A-1 Preferred Stock, the holders of Series A Preferred Stock, the
holders of Series B Preferred Stock and the holders of Series C Preferred Stock shall thereafter be
entitled to receive upon conversion of such Preferred Stock the number of shares of stock or other
securities or property of the Corporation or otherwise, to which a holder of Common Stock
deliverable upon conversion would have been entitled on such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of this Section 4 with
respect to the rights of the holders of such Preferred Stock after the recapitalization to the end
that the provisions of this Section 4 (including adjustment of the Conversion Price then in effect
and the number of shares purchasable upon conversion of such Preferred Stock) shall be applicable
after that event and be as nearly equivalent as practicable.
(g) No Impairment. The Corporation will not, by amendment of its Certificate of
Incorporation (except in accordance with Section 6 hereof and applicable law) or through any
reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by the Corporation, but will
at all times in good faith assist in the carrying out of all the provisions of this Section 4 and
in the taking of all such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of Preferred Stock against impairment.
(h) No Fractional Shares and Certificate as to Adjustments.
(i) No fractional shares shall be issued upon the conversion of any share or shares of the
Series A-1 Preferred Stock, Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock, and the number of shares of Common Stock to be issued shall be rounded to the
nearest whole share. The number of shares issuable upon such conversion shall be determined on the
basis of the total number of shares of Preferred Stock the
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holder is at the time converting into
Common Stock and the number of shares of Common Stock issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or readjustment of the Conversion Price of Series
A-1 Preferred Stock, Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock
pursuant to this Section 4, the Corporation, at its expense, shall promptly compute such adjustment
or readjustment in accordance with the terms hereof and prepare and furnish to each holder of such
Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the
written request at any time of any holder of Series A-1 Preferred Stock, Series A Preferred Stock,
Series B Preferred Stock or Series C Preferred Stock, furnish or cause to be furnished to such
holder a like certificate setting forth (A) such adjustment and readjustment, (B) the Conversion
Price for the Series A-1 Preferred Stock, Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock at the time in effect, and (C) the number of shares of Common Stock and
the amount, if any, of other property which at the time would be received upon the conversion of a
share of the Series A-1 Preferred Stock, Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock.
(i) Notices of Record Date. In the event of any taking by the Corporation of a record
of the holders of any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend (other than a cash dividend) or other distribution, any right
to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, the Corporation shall mail to each holder of
Series A-1 Preferred Stock, each holder of Series A Preferred Stock, each holder of Series B
Preferred Stock and each holder of Series C Preferred Stock, at least twenty (20) days prior to the
date specified therein, a notice specifying the date on which any such record is to be taken for
the purpose of such dividend, distribution or right, and the amount and character of such dividend,
distribution or right.
(j) Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common Stock, solely for
the purpose of effecting the conversion of the shares of the Series A-1 Preferred Stock, the Series
A Preferred Stock, the Series B Preferred Stock, and the Series C Preferred Stock, such number of
its shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding shares of such series of Preferred
Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of such series of Preferred
Stock, in addition to such other remedies as shall be available to the holder of such Preferred
Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such purposes, including, without limitation, engaging in best efforts
to obtain the requisite stockholder approval of any necessary amendment to this Certificate of
Incorporation.
(k) Notices. Any notice required by the provisions of this Section 4 to be given to
the holders of shares of Series A-1 Preferred Stock, Series A Preferred Stock, Series
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B Preferred
Stock or Series C Preferred Stock shall be deemed given if deposited in the United States mail,
postage prepaid, and addressed to each holder of record at his address appearing on the books of
the Corporation.
5. Voting Rights. The holder of each share of Series A Preferred Stock, Series B
Preferred Stock, and Series C Preferred Stock shall have the right to one vote for each share of
Common Stock into which such Preferred Stock could then be converted, and with respect to such
vote, such holder shall have full voting rights and powers equal to the voting rights and powers of
the holders of Common Stock, and shall be entitled, notwithstanding any provision hereof, to notice
of any stockholders’ meeting in accordance with the bylaws of the Corporation, and shall be
entitled to vote, together with holders of Common Stock, with respect to any question upon which
holders of Common Stock have the right to vote. Fractional votes shall not, however, be permitted
and any fractional voting rights available on an as-converted basis (after aggregating all shares
into which shares of Series A Preferred Stock, Series B Preferred Stock, and Series C Preferred
Stock held by each holder could be converted) shall be rounded to the nearest whole number (with
one-half being rounded upward). Except as otherwise required by law, the holders of Series A-1
Preferred Stock shall not be entitled to vote at any meeting of stockholders for the election of
directors or for any other purpose or otherwise to participate in or consent to any action taken by
the Corporation or stockholders thereof, or to receive notice of any meeting of stockholders.
6. Protective Provisions. So long as at least 4,000,000 shares of Preferred Stock are
outstanding (as adjusted for stock splits, stock dividends or recapitalizations), the Corporation
shall not without first obtaining the approval (by vote or written consent, as provided by law) of
the holders of at least two-thirds (2/3rds) of the then outstanding shares of Preferred Stock
voting together as a class;
(a) effect a transaction described in Section 2(d)(i) above; provided that any approvals
required by Section 2(d)(ii)(A)(3) shall also have been obtained;
(b) alter or change the rights, preferences or privileges of the shares of Series A-1
Preferred Stock, Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock so
as to affect adversely the shares of such series;
(c) increase or decrease (other than by redemption or conversion) the total number of
authorized shares of Series A-1 Preferred Stock, Series A Preferred Stock, Series B Preferred Stock
or Series C Preferred Stock;
(d) authorize or issue, or obligate itself to issue, any other equity security, including any
other security convertible into or exercisable for any equity security, having a preference over,
or being on a parity with, the Series A Preferred Stock, Series B Preferred Stock or Series C
Preferred Stock with respect to voting, dividends, conversion or upon liquidation;
(e) change the size of the Board of Directors; or
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(f) redeem, purchase or otherwise acquire (or pay into or set funds aside for a sinking fund
for such purpose) any share or shares of Preferred Stock or Common Stock; provided,
however, that this restriction shall not apply to the repurchase of shares of Common Stock
from employees, officers, directors, consultants or other persons performing services for the
Corporation or any subsidiary pursuant to agreements under which the Corporation has the option to
repurchase such shares at cost upon the occurrence of certain events, such as the termination of
employment, or through the exercise of any right of first refusal.
7. Status of Converted Stock. In the event any shares of Preferred Stock shall be
converted pursuant to Section 4 hereof, the shares so converted shall be cancelled and shall not be
issuable by the Corporation. The Certificate of Incorporation of the Corporation shall be
appropriately amended to effect the corresponding reduction in the Corporation’s authorized capital
stock.
(C) Common Stock.
1. Dividend Rights. Subject to the prior rights of holders of all classes of stock at
the time outstanding having prior rights as to dividends, the holders of the Common Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of any assets of the
Corporation legally available therefor, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation shall be distributed as provided in Section 2 of Article
IV(B).
3. Redemption. The Common Stock is not redeemable.
4. Voting Rights. Each holder of Common Stock shall have the right to one vote per
share of Common Stock, and shall be entitled to notice of any stockholders’ meeting in accordance
with the bylaws of the Corporation, and shall be entitled to vote upon such matters and in such
manner as may be provided by law.
ARTICLE V
The Board of Directors of the Corporation is expressly authorized to make, alter or repeal
Bylaws of the Corporation.
ARTICLE VI
Elections of directors need not be by written ballot unless otherwise provided in the Bylaws
of the Corporation.
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ARTICLE VII
(A) To the fullest extent permitted by the Delaware General Corporation Law, as the same
exists or as may hereafter be amended, a director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director.
(B) The Corporation shall indemnify to the fullest extent permitted by law any person made or
threatened to be made a party to an action or proceeding, whether criminal, civil, administrative
or investigative, by reason of the fact that he, his testator or intestate is or was a director or
officer of the Corporation or any predecessor of the Corporation, or serves or served at any other
enterprise as a director or officer at the request of the Corporation or any predecessor to the
Corporation.
(C) Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of
the Corporation’s Certificate of Incorporation inconsistent with this Article VII, shall eliminate
or reduce the effect of this Article VII in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article VII, would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.”
* * *
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The foregoing Sixth Amended and Restated Certificate of Incorporation has been duly adopted by
this corporation’s Board of Directors and stockholders in accordance with the applicable provisions
of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.
Executed at Menlo Park, California, on August 20, 2008.
| /s/ Gregory J. Owens | ||
| Gregory J. Owens, President and Chief | ||
| Executive Officer | ||
| /s/ John V. Bautista | ||
| John V. Bautista, Secretary |
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