{"id":41591,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/certificate-of-incorporation-caldera-systems-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"certificate-of-incorporation-caldera-systems-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/certificate-of-incorporation-caldera-systems-inc.html","title":{"rendered":"Certificate of Incorporation &#8211; Caldera Systems Inc."},"content":{"rendered":"<pre>\n                          CERTIFICATE OF INCORPORATION\n                                       OF\n                              CALDERA SYSTEMS, INC.\n\n        The undersigned, a corporation (the 'Sole Incorporator'), for the\npurpose of organizing a corporation to conduct the business and promote the\npurposes thereinafter stated, under the provisions and subject to the\nrequirements of the Delaware General Corporation Law (the 'DGCL') hereby\ncertifies the following:\n\n                                    ARTICLE I\n\n        The name of the Corporation is Caldera Systems, Inc. (the\n'Corporation').\n\n                                   ARTICLE II\n\n        The address of the registered office of the Corporation in the State of\nDelaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,\nCounty of New Castle, and the name of the registered agent at such address is\nThe Corporation Trust Company.\n\n                                   ARTICLE III\n\n        The nature of the business or purposes to be conducted or promoted is to\nengage in any lawful act or activity for which corporations may be organized\nunder the DGCL.\n\n\n                                   ARTICLE IV\n\n        The name and mailing address of the Sole Incorporator is as follows:\n\n                              Caldera Systems, Inc.\n                            Attention: Ransom H. Love\n                      President and Chief Executive Officer\n                             240 West Center Street\n                                 Orem, UT 84057\n\n                                    ARTICLE V\n\n        The total number of shares of capital stock which the Corporation shall\nhave authority to issue is one hundred million of which twenty-five million\nshall be shares of preferred stock, (hereinafter called the 'Preferred Stock'),\nand seventy-five million shall be shares of common stock, (hereinafter called\nthe 'Common Stock'). The Preferred Stock shall have a par value of one-tenth of\none cent ($0.001) and the Common Stock shall have a par value of one-tenth of\none cent ($0.001) per share.\n\n   2\n\n        The designation, powers, preferences and relative, participating,\noptional or other special rights, and qualifications, limitations or\nrestrictions thereof, of each class of stock, and the express grant of authority\nto the Board of the Corporation (the 'Board') to amend this Certificate of\nIncorporation to fix the designation, powers, preferences and relative,\nparticipating, optional or other special rights, and qualifications, limitations\nor restrictions thereof, of each share of the Preferred Stock which are not\nfixed by this Certificate of Incorporation, are as follows:\n\nA.      PREFERRED STOCK\n\n        1. Designation; Consideration.\n\n        (a) Designation. There are hereby created out of the authorized and\nunissued shares of Preferred Stock of the Corporation (i) a series of Preferred\nStock designated as the 'Series A Convertible Preferred Stock,' which series\nshall consist of 6,596,146 shares of Series A Convertible Preferred Stock and\n(ii) a series of Preferred Stock designated as the 'Series B Convertible\nPreferred Stock,' which series shall consist of 5,000,000 shares of Series B\nConvertible Preferred Stock. Shares of the Series A Convertible Preferred Stock\nare referred to hereinafter as the 'Series A Preferred.' Shares of Series B\nConvertible Preferred Stock are referred to hereinafter as the 'Series B\nPreferred,' and together with the Series A Preferred, the 'Preferred Stock.'\nOnce duly issued for the consideration called for by resolution of the Board,\nshares of the Preferred Stock shall be deemed fully paid and nonassessable.\n\n        (b) Restrictions on Reissuance. All shares of the Preferred Stock,\npurchased, redeemed, converted into Common Stock (as provided herein) or\notherwise acquired by the Corporation shall be retired and canceled and shall\nnot be reissued.\n\n        (c) Stated Value Per Share. The initial 'Series A Stated Value Per\nShare' shall be $4.03 per share. The initial 'Series B Stated Value Per Share'\nshall be $6.00 per share.\n\n        (d) Rank. The Series A Preferred and Series B Preferred shall, with\nrespect to dividend rights, rights upon liquidation, winding up or dissolution,\nand redemption rights, rank on parity with each other and prior to any other\nclass or series of capital stock of the Corporation, including, without\nlimitation, all classes of the Common Stock and any other series of the\npreferred stock hereinafter created. (All of such classes or series of capital\nstock of the Corporation to which the Preferred Stock ranks prior, including,\nwithout limitation, other series of Preferred Stock, the Common Stock, and\nincluding, without limitation, junior securities convertible into or\nexchangeable for other junior securities or phantom stock representing junior\nsecurities, are collectively referred to herein in this Section V.A. as 'Junior\nSecurities.').\n\n        2. Dividends.\n\n        (a) General Obligation. Subject to the provisions of this Paragraph\nV.A.2.(a), the record holders of the Preferred Stock shall be entitled to\nreceive when, as and if declared by the Board and to the extent permitted under\nthe DGCL, to cumulative and accruing preferential dividends on the shares of\nPreferred Stock outstanding, at the rate per share with respect to the Series A\nPreferred of 8% per annum, compounded annually, of the Series A Stated Value Per\nShare (the 'Series A Accruing Dividends') and at the rate per share with respect\nto the Series B\n\n                                       2\n   3\n\nPreferred of 8% per annum, compounded annually, of the Series B Stated Value Per\nShare (the 'Series B Accruing Dividends' and together the with Series A Accruing\nDividends, the 'Accruing Dividends'); provided, however, solely for purposes of\nthis Paragraph 2(a), the Series A Stated Value Per Share shall be deemed to be\n$6.00 (subject to adjustment as provided herein). No dividends shall be paid on\nany share of Common Stock unless a dividend (including the Accruing Dividends)\nis paid with respect to all outstanding shares of Preferred Stock in an amount\nfor each such share of Preferred Stock equal to or greater than the aggregate\namount of such dividends for all shares of Common Stock into which each such\nshare of Preferred Stock could then be converted.\n\n        (b) Payment of Dividends. Any dividend on the Preferred Stock declared\nbut unpaid as provided in Paragraph V.A.2.(a) shall be paid in cash or property\nas determined by the Board. Dividends may be declared and paid at any time to\nthe holders of record on the record date for such dividend payment.\n\n        (c) Non-Cash Dividends. Whenever a dividend of the Corporation shall be\npayable in property other than cash, the value of such dividend shall be deemed\nto be the fair market value of such property as determined in good faith by the\nBoard.\n\n        3. Liquidation.\n\n        (a) General. In the event of any voluntary or involuntary liquidation,\ndissolution or winding up of the Corporation, each holder of shares of Series A\nPreferred and Series B Preferred then outstanding shall be entitled to receive,\non a pari passu basis based on the Series A Stated Value Per Share and Series B\nStated Value Per Share, as the case may be, out of the assets of the Corporation\nlegally available for distribution to the shareholders of the Corporation\n(whether representing capital or surplus) (the 'Available Assets'), before any\npayment or distribution shall be made on the Common Stock or any other Junior\nSecurity, but after distribution of such assets among, or payment thereof over\nto, creditors of the Corporation, (A) with respect to the Series A Preferred, an\namount for each share held by such holder equal to the greater of (i) the sum of\n(1) the Series A Stated Value Per Share plus (2) an amount equal to all Series A\nAccruing Dividends unpaid thereon (whether or not declared), computed to the\ndate payment thereof is made available plus (3) any other dividends declared but\nunpaid thereon, and (ii) the amount that such holder of the Series A Preferred\nwould hold had all shares of Preferred Stock been converted to Common Stock\nimmediately prior to the time of the liquidation, dissolution or winding up of\nthe Corporation (the greater of (i) and (ii) being sometimes referred to as the\n'Series A Liquidation Preference Payment' and such amount with respect to all\nshares of Series A Preferred Stock in the aggregate being sometimes referred to\nas the 'Series A Liquidation Preference Payments'); and (B) with respect to the\nSeries B Preferred, an amount for each share held by such holder equal to the\ngreater of (i) the sum of (1) the Series B Stated Value Per Share plus (2) an\namount equal to all Series B Accruing Dividends unpaid thereon (whether or not\ndeclared), computed to the date payment thereof is made available plus (3) any\nother dividends declared but unpaid thereon, and (ii) the amount that such\nholder of the Series B Preferred would hold had all shares of Preferred Stock\nbeen converted to Common Stock immediately prior to the time of the liquidation,\ndissolution or winding up of the Corporation (the greater of (i) and (ii) being\nsometimes referred to as the 'Series B Liquidation Preference\n\n                                       3\n   4\n\nPayment' and such amount with respect to all shares of Series B Preferred Stock\nin the aggregate being sometimes referred to as the 'Series B Liquidation\nPreference Payments').\n\n        (b) If upon any voluntary or involuntary liquidation, dissolution or\nwinding up of the Corporation, the Available Assets shall be insufficient to\npermit the payment to holders of the Series A Preferred and Series B Preferred\ntheir full Series A Liquidation Preference Payments and Series B Liquidation\nPreference Payments, then all Available Assets shall be distributed among the\nholders of the then outstanding Series A Preferred and Series B Preferred pro\nrata, on an equal priority, based upon the Series A Stated Value Per Share and\nthe Series B Stated Value Per Share.\n\n        (c) Upon any liquidation, dissolution or winding up of the Corporation,\nimmediately after the holders of Preferred Stock have been paid in full the\nSeries A Liquidation Preference Payments and Series B Liquidation Preference\nPayments (as applicable), the remaining net assets of the Corporation available\nfor distribution shall be distributed among the holders of Junior Securities.\n\n        (d) An Acquisition (as defined below) of the Corporation shall be deemed\nto be a liquidation, dissolution or winding up of the Corporation within the\nmeaning of the provisions of this Paragraph 3. For purposes thereof, the term\n'Acquisition' shall mean (i) the consolidation or merger of the Corporation into\nor with any other entity or entities which results in the exchange of\noutstanding shares of the Corporation for securities or other consideration\nissued or paid or caused to be issued or paid by any such entity or affiliate\nthereof (except (x) a consolidation or merge into a subsidiary or (y) a merger\nin which the Corporation is the surviving corporation and the holders of the\nCorporation's voting stock outstanding immediately prior to the transaction\nconstitute a majority of the holders of voting stock outstanding immediately\nfollowing the transaction), (ii) the sale or transfer by the Corporation of all\nor substantially all its assets in a transaction or a series of related\ntransactions, or (V) the sale or transfer by the Corporation's stockholders of\ncapital stock in a transaction or a series of related transactions representing\na majority of the voting power at elections of directors of the Corporation.\n .\n        (e) If any assets of the Corporation distributed to stockholders in\nconnection with any liquidation, dissolution or winding up of the Corporation\nare other than cash, then the value of such assets shall be their fair market\nvalue as determined by the Board in good faith.\n\n        (f) Written notice of such liquidation, dissolution or winding up,\nstating a payment date and the place where said payments shall be made, shall be\ngiven not less than 20 days prior to the payment date stated therein, to the\nholders of record of Preferred Stock, in accordance with the notice provisions\nof Paragraph V.A.9 below.\n\n                                       4\n   5\n\n        4. Voting Rights.\n\n        (a) Relative to Other Classes. The holders of the Preferred Stock shall\nbe entitled to notice of all shareholders meetings in accordance with the\nCorporation's bylaws, and except as otherwise required by law, the holders of\nthe Preferred Stock shall be entitled to vote on all matters submitted to the\nshareholders of the Corporation for a vote, including the election of directors,\ntogether with the holders of the Common Stock voting together as a single class,\nand each share of Preferred Stock (including fractional shares) shall be\nentitled to one vote for each whole share of Common Stock that would be issuable\nupon conversion of such share on the record date set by the Board for\ndetermining eligibility of holders of Preferred Stock to participate in the\naction being taken.\n\n        (b) Relative to Other Series. Notwithstanding any provision of the DGCL\ngranting the holders of the outstanding shares of a class or series rights to\nvote as a separate voting group or any other provision of this Certificate of\nIncorporation, the holders of the Preferred Stock shall not have the right to\nvote as a separate voting group or series with respect to any matter submitted\nto the holders of the Preferred Stock (or any series thereof) and shall vote\ntogether as a class on each such matter; provided, however, that except with\nrespect to matters approved in accordance with Paragraph V.A.4.(c) and\/or\nParagraph V.A.5.(b)(i)(B) below, the Corporation shall not amend, alter or\nrepeal any provision of the Corporation's Certificate of Incorporation in a\nmanner that would adversely affect the powers, preferences or special rights of\na particular series of Preferred Stock, without the affirmative vote or consent\nof such adversely affected series, voting as a separate series.\n\n        (c) At any time when at least 25% of the shares of Preferred Stock\noriginally issued by the Corporation are outstanding, except where the vote or\nwritten consent of the holders of a greater number of shares of the Corporation\nis required by law or by the Certificate of Incorporation, and without the\napproval of the holders of at least a majority of the then outstanding shares of\nPreferred Stock, given in writing or by vote at a meeting, consenting or voting\n(as the case may be) together as a class (and not as separate series), the\nCorporation shall not:\n\n            (i) Sell, abandon, transfer, lease or otherwise dispose of all or\nsubstantially all of its properties or assets;\n\n            (ii) Merge or consolidate with or into, or permit any subsidiary to\nmerge or consolidate with or into, any other corporation, corporations, entity\nor entities; or\n\n            (iii) Liquidate, dissolve or wind up the Corporation.\n\n        5. Conversion Rights.\n\n        (a) Optional Conversion.\n\n            (i) At any time and from time to time, any holder of Preferred Stock\nmay convert all or any of the shares of Preferred Stock held by such holder into\nfully paid and non-assessable shares of Common Stock as provided herein.\n\n                                       5\n   6\n\n            (ii) Any holder of shares of Preferred Stock desiring to convert any\nportion thereof into Common Stock shall surrender each certificate representing\none or more shares of such Preferred Stock to be converted, duly endorsed in\nfavor of the Corporation or in blank, at the principal business office of the\nCorporation (or such other place as may be designated by the Corporation), and\nshall give written notice to the Corporation at that office of its election to\nconvert the same on a signed Election to Convert Preferred Stock into Common\nStock which is set forth on Exhibit A attached hereto setting forth therein the\nname or names (with the address or addresses) in which the shares of Common\nStock are to be issued. No conversion under this Paragraph V.A.5.(a) shall be\neffective until the shares of Preferred Stock to be converted have been\nsurrendered to the Corporation in compliance with this Paragraph V.A.5.(a)(ii)\n(the date of such surrender being an 'Optional Conversion Date').\n\n        (b) Automatic Conversion.\n\n            (i) Each share of Preferred Stock shall automatically be converted\ninto fully paid and non-assessable shares of Common Stock, as provided herein,\n(A) immediately prior to the closing of a firm commitment underwritten public\noffering pursuant to an effective registration statement filed under the\nSecurities Act of 1933, as amended, covering the offer and sale of Common Stock\nfor the account of the Corporation at a price per share equal to or greater than\n$8.00 and in which the aggregate public offering price (before deduction of\nunderwriters' discounts and qualifications) equals or exceeds $25,000,000, or\n(B) upon the Corporation's receipt of the written consent of the holders of not\nless than 75% of the then outstanding shares of the Preferred Stock, voting or\nconsenting (as the case may be) together as a class, to the conversion of all of\nthe then outstanding shares of the Preferred Stock under this Paragraph\nV.A.5.(b) (each such event an 'Automatic Conversion Event,' the date of each\nsuch event an 'Automatic Conversion Date,' and each Optional Conversion Date and\neach Automatic Conversion Date, individually, a 'Conversion Date').\n\n            (ii) Upon the occurrence of any Automatic Conversion Event, the\noutstanding shares of Preferred Stock shall be converted into Common Stock\nautomatically without the need for any further action by the holders of such\nshares and whether or not the certificates representing such shares are\nsurrendered to the Corporation or its transfer agent; provided, however, that\nthe Corporation shall not be obligated to issue certificates evidencing the\nshares of Common Stock issuable upon such conversion unless (A) the certificates\nevidencing such shares of Preferred Stock are delivered to the principal\nbusiness office of the Corporation (or such other place as may be designated by\nthe Corporation) as provided below, or (B) the holder notifies the Corporation\n(or such other party as may be designated by the Corporation) that such\ncertificates have been lost, stolen, destroyed or mutilated and the holder\ncomplies with the provisions of Paragraph V.A.8. Upon the occurrence of an\nAutomatic Conversion Event, the holders of Preferred Stock shall surrender the\ncertificates representing such shares at the principal business office of the\nCorporation (or such other place as may be designated by the Corporation), and\nshall thereby become entitled to receive, at such office and in its name as\nshown on such surrendered certificate or certificates, a certificate or\ncertificates for the number of shares of Common Stock into which the shares of\nPreferred Stock surrendered were convertible on the date on which the Automatic\nConversion Event occurred.\n\n                                       6\n   7\n\n        (c) Conversion Price. Each share of the Preferred Stock shall be\nconvertible in accordance with Paragraph V.A.5.(a) or V.A.5.(b) above into the\nnumber of shares of Common Stock which results from dividing either the Series A\nStated Value Per Share and\/or the Series B Stated Value Per Share, as the case\nmay be, by the Conversion Price for such series of Preferred Stock that is in\neffect at the time of conversion. The 'Conversion Price' for each share of\nPreferred Stock shall mean, initially, with respect to the Series A Preferred,\nthe Series A Stated Value Per Share and, with respect to the Series B Preferred,\nthe Series B Stated Value Per Share for such share. The Conversion Price for\neach share of Preferred Stock shall be subject to adjustment from time to time\nas provided below. Following each adjustment of the Conversion Price with\nrespect to a share of the Preferred Stock, such adjusted Conversion Price shall\nremain in effect until a further adjustment of such Conversion Price hereunder.\n\n        (d) Action by Corporation in Relation to Conversion.\n\n            (i) As soon as possible after a Conversion Date (but in any event\nwithin fifteen business days in the case of Paragraph V.A.5.(d)(i)(A) below),\nthe Corporation shall deliver to the converting holder:\n\n\n               (A) a certificate or certificates representing the number of\n               shares of Common Stock issuable by reason of such conversion in\n               such name or names and such denomination or denominations as the\n               converting holder has specified;\n\n               (B) payment of the amount payable under Paragraph V.A.5.(d)(iv)\n               below with respect to such conversion; and\n\n               (C) a certificate representing any shares of Preferred Stock\n               which were represented by the certificate or certificates\n               delivered to the Corporation in connection with such conversion\n               but which (in the case of an optional conversion) were not\n               converted.\n\n\n            (ii) The issuance of certificates for shares of Common Stock upon\nconversion of shares of Preferred Stock shall be made without charge to the\nholders of such Preferred Stock for any issuance tax in respect thereof or other\ncost incurred by the Corporation in connection with such conversion and the\nrelated issuance of shares of Common Stock.\n\n            (iii) The Corporation shall not close its books against the transfer\nof Preferred Stock or of Common Stock issued or issuable upon conversion of the\nPreferred Stock in any manner which interferes with the timely conversion of\nPreferred Stock. The Corporation shall assist and cooperate (but the Corporation\nshall not be required to expend substantial efforts or funds) with any holder of\nPreferred Stock required to make any governmental filings or obtain any\ngovernmental approval prior to or in connection with any conversion of shares of\nPreferred Stock hereunder (including, without limitation, making any filings\nrequired to be made by the Corporation).\n\n            (iv) If any fractional interest in a share of Common Stock would,\nexcept for the provisions of this Paragraph V.A.5.(d)(iv), be deliverable upon\nany conversion of shares of a\n\n                                       7\n   8\n\nholder's Preferred Stock, the Corporation, in lieu of delivering the fractional\nshare therefor, shall pay an amount to the holder thereof equal to an amount\nbearing the same ratio to the fair market value of a whole share of Common\nStock, as determined in good faith by the Board, as the fractional interest to\nwhich the shareholder would otherwise be entitled bears to a whole share of\nCommon Stock.\n\n            (v) The Corporation shall at all times reserve and keep available\nout of its authorized but unissued shares of Common Stock, solely for the\npurpose of issuance upon the conversion of the Preferred Stock, not less than\nthe number of shares of Common Stock issuable upon the conversion of all\noutstanding shares of Preferred Stock. All shares of Common Stock which are so\nissuable shall, when issued, be duly and validly issued, fully paid and\nnonassessable and free from all taxes, liens and charges. The Corporation shall\ntake all such actions as may be necessary to ensure that all such shares of\nCommon Stock may be so issued without violation of any applicable law or\ngovernmental regulation or any requirements of any domestic securities exchange\nupon which shares of Common Stock may be listed (except for official notice of\nissuance which shall be immediately delivered by the Corporation upon each such\nissuance).\n\n        (e) Adjustments for Certain Events.\n\n            (i) Adjustment Upon Common Stock Event. Upon the happening of a\nCommon Stock Event (as hereinafter defined), the Conversion Price for each\nseries of the Preferred Stock shall, simultaneously with the happening of such\nCommon Stock Event, be adjusted by multiplying the Conversion Price for such\nseries in effect immediately prior to such Common Stock Event by a fraction, (A)\nthe numerator of which shall be the number of shares of Common Stock issued and\noutstanding immediately prior to such Common Stock Event, and (B) the\ndenominator of which shall be the number of shares of Common Stock issued and\noutstanding immediately after such Common Stock Event, and the product so\nobtained shall thereafter be the Conversion Price for such shares. The\nConversion Price for each share of the Preferred Stock shall be readjusted in\nthe same manner upon the happening of each subsequent Common Stock Event. As\nused herein, the term the 'Common Stock Event' shall mean at any time or from\ntime to time after the original date of issuance of the Preferred Stock (the\n'Issuance Date'), (X) the issuance by the Corporation of additional shares of\nCommon Stock as a dividend or other distribution on outstanding Common Stock,\n(Y) a subdivision of the outstanding shares of Common Stock into a greater\nnumber of shares of Common Stock, or (Z) a combination of the outstanding shares\nof Common Stock into a smaller number of shares of Common Stock.\n\n            (ii) Adjustments for Other Dividends and Distributions. If at any\ntime or from time to time after the Issuance Date the Corporation pays a\ndividend or makes another distribution to the holders of the Common Stock\npayable in securities of the Corporation, other than an event constituting a\nCommon Stock Event, then in each such event, provision shall be made so that the\nholders of the Preferred Stock shall receive upon the Conversion Date, in\naddition to the number of shares of Common Stock receivable upon the Conversion\nDate, the amount of securities of the Corporation which they would have received\nhad their Preferred Stock been converted into Common Stock on the date of such\ndividend or distribution (or record date for such dividend or distribution, as\napplicable) and had they thereafter, during the period from the date of such\ndividend or distribution (or such record date, as applicable) to and\n\n                                       8\n   9\n\nincluding the Conversion Date, retained such securities receivable by them as\naforesaid during such period, subject to all other adjustments called for during\nsuch period under this Paragraph V.A.5. with respect to the rights of the\nholders of the Preferred Stock or with respect to such other securities by their\nterms.\n\n            (iii) Adjustment for Recapitalization, Reclassification, Exchange\nand Substitution. If at any time or from time to time after the Issuance Date\nthe Common Stock issuable upon the conversion of the Preferred Stock is changed\ninto the same or a different number of shares of any class or classes of stock,\nwhether by recapitalization, reclassification or otherwise (other than by a\nCommon Stock Event or a stock dividend, reorganization, merger, consolidation or\nsale of assets provided for elsewhere in this Paragraph V.A.5.), then in any\nsuch event each holder of the Preferred Stock shall have the right thereafter to\nconvert such stock into the kind and amount of stock and other securities and\nproperty receivable upon such recapitalization, reclassification or other change\nby holders of the number of shares of Common Stock into which such shares of the\nPreferred Stock could have been converted immediately prior to such\nrecapitalization, reclassification or change, all subject to further adjustment\nas provided herein or with respect to such other securities or property by the\nterms thereof.\n\n            (iv) Adjustment for Reorganizations, Mergers and Consolidations. If\nat any time or from time to time after the Issuance Date there is a\nreorganization of the Corporation (other than a recapitalization, subdivision,\ndividend, combination, reclassification or exchange of shares provided for\nelsewhere in this Paragraph V.A.5.(e)), a merger or consolidation of the\nCorporation with or into another entity, or a sale of all or substantially all\nof the assets of the Corporation, then, as a part of such reorganization,\nmerger, consolidation or sale of all or substantially all of the assets,\nprovision shall be made so that the holders of the Preferred Stock thereafter\nshall be entitled to convert the Preferred Stock into the amount and kind of\nshares of stock or other securities or property of the Corporation, or of such\nsuccessor corporation resulting from such reorganization, merger, consolidation\nor sale of assets, receivable by a holder of the number of shares of Common\nStock into which such shares of the Preferred Stock could have been converted\nimmediately prior to such reorganization, merger, consolidation or sale of\nassets. In any such case, appropriate adjustment shall be made in the\napplication of the provisions of this Paragraph V.A.5.(e) with respect to the\nrights of the holders of the Preferred Stock after the reorganization, merger,\nconsolidation or sale of assets to the end that the provisions of this Paragraph\nV.A.5.(e) (including adjustment of the Conversion Price then in effect and\nnumber of shares issuable upon conversion of the Preferred Stock) shall be\napplicable after that event and be as nearly equivalent to the provisions hereof\nas may be practicable. This Paragraph V.A.5.(e)(iv) shall similarly apply to\nsuccessive reorganizations, mergers, consolidations and sales of assets.\n\n                                       9\n   10\n\n        (f) Sale of Shares of Common Stock Below Preferred Stock Conversion\nPrice.\n\n            (i) Preferred Stock Conversion Price Adjustment Formula. If at any\ntime or from time to time after the Issuance Date the Corporation issues or\nsells, or is deemed by the provisions of this Paragraph V.A.5.(f) to have issued\nor sold, Additional Shares of Common Stock (as hereinafter defined), otherwise\nthan in connection with a Common Stock Event as provided in Paragraph\nV.A.5.(e)(i), a dividend or distribution as provided in Paragraph V.A.5.(e)(ii),\na recapitalization, reclassification or other change as provided in Paragraph\nV.A.5.(e)(V) or a reorganization, merger, consolidation or sale of assets as\nprovided in Paragraph V.A.5.(e)(iv), for an Effective Price (as hereinafter\ndefined) that is less than the Conversion Price for a share of the Series A\nPreferred and\/or the Series B Preferred in effect immediately prior to such\nissue or sale (or deemed issue or sale), then, and in each such case, the\nConversion Price for the applicable shares of Series A Preferred and\/or the\nSeries B Preferred shall be reduced, as of the close of business on the date of\nsuch issue or sale, to the Adjusted Price (which shall be the new Conversion\nPrice after any such adjustment).\n\n            (ii) Certain Definitions. For the purpose of making any adjustment\nrequired under this Paragraph V.A.5.(f):\n\n                (A)  The 'Additional Shares of Common Stock' shall mean all\n                     shares of Common Stock issued by the Corporation, whether\n                     or not subsequently reacquired or retired by the\n                     Corporation, other than:\n\n                     (1) shares of Common Stock issued or issuable upon\n                         conversion of the outstanding shares of the Series A\n                         Preferred and Series B Preferred;\n\n                     (2) up to 6,700,000 shares of Common Stock (or options,\n                         warrants or rights therefor) granted or issued\n                         hereafter to employees, officers, directors,\n                         contractors, consultants or advisers to the Corporation\n                         or any majority-owned subsidiary of the Corporation\n                         pursuant to incentive agreements, stock purchase or\n                         stock option plans, stock bonuses or awards, warrants,\n                         contracts or other arrangements that are approved by\n                         the Board;\n\n                     (3) shares of such Common Stock issued upon exercise or\n                         conversion of any option, warrant or other convertible\n                         security outstanding as of the Issuance Date;\n\n                     (4) shares of Common Stock issued pursuant to an Automatic\n                         Conversion Event; and\n\n                     (5) in connection with (i) any borrowings, direct or\n                         indirect, from financial institutions or other persons\n                         by the Corporation, whether or not presently\n                         authorized, including\n\n                                       10\n   11\n\n                         any type of loan or payment evidenced by any type of\n                         debt instrument, if such borrowing, loan or debt\n                         instrument is approved by the Board, (ii) any\n                         transaction with vendors or customers or to other\n                         persons in similar commercial situations with the\n                         Corporation if such issuance is approved by the Board,\n                         or (iii) obtaining lease financing, whether issued to a\n                         lessor, guarantor or other person if such issuance is\n                         approved by the Board; provided that the aggregate\n                         number of shares of Common Stock deemed issued pursuant\n                         to (i), (ii) and (iii) above does not exceed five\n                         percent (5%) of the aggregate number of shares of\n                         Common Stock then outstanding plus the aggregate number\n                         of shares of Common Stock issuable upon the exercise,\n                         conversion or exchange of any Common Stock Equivalents\n                         Outstanding.\n\n                (B)  The 'Aggregate Consideration Received' by the Corporation\n                     for any issue or sale (or deemed issue or sale) of\n                     securities shall (1) to the extent it consists of cash, be\n                     computed at the gross amount of cash received by the\n                     Corporation before deduction of any reasonable underwriting\n                     or similar commissions, compensation or concessions paid or\n                     allowed by the Corporation in connection with such issue or\n                     sale and without deduction of any reasonable expenses\n                     payable by the Corporation; (2) to the extent it consists\n                     of property other than cash, be computed at the fair value\n                     of that property as determined in good faith by the Board;\n                     and (3) if Additional Shares of Common Stock, Convertible\n                     Securities or Rights or Options to purchase either\n                     Additional Shares of Common Stock or Convertible Securities\n                     are issued or sold together with other stock or securities\n                     or other assets of the Corporation for a consideration\n                     which covers both, be computed as the portion of the\n                     consideration so received that may be reasonably determined\n                     in good faith by the Board to be allocable to such\n                     Additional Shares of Common Stock, Convertible Securities\n                     or Rights or Options.\n\n                (C)  The 'Common Stock Equivalents Outstanding' shall mean the\n                     number of shares of Common Stock that is equal to the sum\n                     of (1) all shares of Common Stock of the Corporation that\n                     are outstanding at the time in question, plus (2) all\n                     shares of Common Stock of the Corporation issuable upon\n                     conversion of all shares of Preferred Stock or other\n                     Convertible Securities that are outstanding at the time in\n                     question, plus (3) all shares of Common Stock of the\n                     Corporation that are issuable upon the exercise of Rights\n                     or Options that are outstanding at the time in question\n                     assuming the full conversion or exchange into shares of the\n                     Common Stock of\n\n                                       11\n   12\n\n\n                     all such Rights or Options that are Rights or Options to\n                     purchase or acquire Convertible Securities.\n\n                (D)  The 'Convertible Securities' shall mean stock or other\n                     securities convertible into or exchangeable for shares of\n                     the Common Stock.\n\n                (E)  The 'Effective Price' of Additional Shares of Common Stock\n                     shall mean the quotient determined by dividing the total\n                     number of Additional Shares of Common Stock issued or sold,\n                     or deemed to have been issued or sold, by the Corporation\n                     under this Paragraph V.A.5.(f), into the Aggregate\n                     Consideration Received, or deemed to have been received, by\n                     the Corporation under this Paragraph V.A.5.(f), for the\n                     issue of such Additional Shares of Common Stock;\n\n                (F)  The 'Rights or Options' shall mean warrants, options or\n                     other rights to purchase or acquire shares of the Common\n                     Stock or Convertible Securities.\n\n                (G)  The 'Adjusted Price' shall be equal to a price determined\n                     by multiplying the applicable Conversion Price then in\n                     effect by a fraction, the numerator of which shall be the\n                     number of shares of Common Stock outstanding immediately\n                     prior to the issuance of Additional Shares of Common Stock\n                     plus the number of shares of Common Stock that the\n                     Aggregate Consideration Received by the Corporation for\n                     such issuance would purchase at such applicable Conversion\n                     Price (prior to adjustment), and the denominator of which\n                     shall be the number of shares of Common Stock outstanding\n                     immediately prior to such issuance plus the number of\n                     shares of such Additional Shares of Common Stock.\n\n            (iii) Deemed Issuances. For the purpose of making any adjustment to\nthe Conversion Price of any share of Preferred Stock required under this\nParagraph V.A.5.(f), if the Corporation issues or sells any Rights or Options or\nConvertible Securities and if the Effective Price of the shares of Common Stock\nissuable upon exercise of such Rights or Options and\/or the conversion or\nexchange of Convertible Securities (computed without reference to any additional\nor similar protective or antidilution clauses) is less than the Conversion Price\nthen in effect for such series of Preferred Stock, then the Corporation shall be\ndeemed to have issued, at the time of the issuance of such Rights or Options or\nConvertible Securities, that number of Additional Shares of Common Stock that is\nequal to the maximum number of shares of Common Stock issuable upon exercise or\nconversion of such Rights or Options or Convertible Securities upon their\nissuance and to have received, as the Aggregate Consideration Received for the\nissuance of such shares, an amount equal to the total amount of the\nconsideration, if any, received by the Corporation for the issuance of such\nRights or Options or Convertible Securities, plus, in the case of such Rights or\nOptions, the minimum amounts of consideration, if any, payable to the\nCorporation upon the exercise in full of such Rights or Options, plus, in the\ncase of Convertible\n\n                                       12\n   13\n\nSecurities, the minimum amounts of consideration, if any, payable to the\nCorporation (other than by cancellation of liabilities or obligations evidenced\nby such Convertible Securities) upon the conversion or exchange thereof;\nprovided that:\n\n                (A)  if the minimum amounts of such consideration cannot be\n                     ascertained, but are a function of antidilution or similar\n                     protective clauses, then the Corporation shall be deemed to\n                     have received the minimum amounts of consideration without\n                     reference to such clauses;\n\n                (B)  if the minimum amount of consideration payable to the\n                     Corporation upon the exercise of Rights or Options or the\n                     conversion or exchange of Convertible Securities is reduced\n                     over time or upon the occurrence or non-occurrence of\n                     specified events other than by reason of antidilution or\n                     similar protective adjustments, then the Effective Price\n                     shall be recalculated using the figure to which such\n                     minimum amount of consideration is reduced; and\n\n                (C)  if the minimum amount of consideration payable to the\n                     Corporation upon the exercise of such Rights or Options or\n                     the conversion or exchange of Convertible Securities is\n                     subsequently increased, then the Effective Price shall\n                     again be recalculated using the increased minimum amount of\n                     consideration payable to the Corporation upon the exercise\n                     of such Rights or Options or the conversion or exchange of\n                     such Convertible Securities.\n\nNo further adjustment of the Conversion Price for a share of the Preferred\nStock, adjusted upon the issuance of such Rights or Options or Convertible\nSecurities, shall be made as a result of the actual issuance of shares of Common\nStock on the exercise of any such Rights or Options or the conversion or\nexchange of any such Convertible Securities. If any such Rights or Options or\nthe conversion rights represented by any such Convertible Securities shall\nexpire without having been fully exercised, then the Conversion Price for a\nshare of the Preferred Stock as adjusted upon the issuance of such Rights or\nOptions or Convertible Securities shall be readjusted to the Conversion Price\nfor such series which would have been in effect had an adjustment been made on\nthe basis that the only shares of Common Stock deemed to have been issued were\nthe shares of Common Stock, if any, that were actually issued or sold on the\nexercise of such Rights or Options or rights of conversion or exchange of such\nConvertible Securities, and such shares of Common Stock deemed to have been\nissued, if any, were issued or sold for the consideration actually received by\nthe Corporation upon such exercise, plus the consideration, if any, actually\nreceived by the Corporation for the granting of all such Rights or Options,\nwhether or not exercised, plus the consideration received for issuing or selling\nall such Convertible Securities actually converted or exchanged, plus the\nconsideration, if any, actually received by the Corporation (other than by\ncancellation of liabilities or obligations evidenced by such Convertible\nSecurities) on the conversion or exchange of such Convertible Securities,\nprovided\n\n                                       13\n   14\n\n\nthat such readjustment shall not apply to conversions of Preferred Stock made\nprior such readjustment.\n\n        6. Rights to Distributions. If at any time the Corporation shall declare\na distribution payable in securities of any other person, evidence of\nindebtedness issued by the Corporation or any other person, assets (excluding\ncash dividends) or options or rights to purchase any such securities or\nevidences of indebtedness, pro-rata to all of the record holders of any class of\nJunior Securities, then, in each such case the holder of the Preferred Stock\nshall be entitled to a proportionate share of any such distribution as though\nthe holders of the Preferred Stock were the holders of the number of Common\nStock of the Corporation in which their respective shares of Preferred Stock are\nconvertible as of the date of the record date fixed for the determination of the\nholders of the Common Stock of the Corporation entitled to receive such\ndistribution.\n\n        7. Transfer. The Corporation shall keep at its principal office a\nregister for the registration of issuances and transfers of Preferred Stock.\nUpon the surrender of any certificate representing Preferred Stock at such\nplace, the Corporation shall, at the request of the record holder of such\ncertificate, execute and deliver (at the Corporation's expense) a new\ncertificate or certificates in exchange therefor representing in the aggregate\nthe number of shares of Preferred Stock represented by the surrendered\ncertificate. Each such new certificate shall be registered in such name and\nshall represent such number of shares of Preferred Stock as is requested by the\nholder of the surrendered certificate and shall be substantially identical in\nform to the surrendered certificate, and dividends shall accrue on the Preferred\nStock represented by such new certificate from the date to which dividends have\nbeen fully paid on such Preferred Stock represented by the surrendered\ncertificate.\n\n        8. Replacement. Upon receipt of evidence reasonably satisfactory to the\nCorporation (an appropriate affidavit of the registered holder shall be\nsatisfactory) of the ownership and the loss, theft, destruction or mutilation of\nany certificate evidencing shares of Preferred Stock, and in the case of any\nsuch loss, theft or destruction, upon receipt of indemnity reasonably\nsatisfactory to the Corporation (provided that if the holder is a financial\ninstitution or other institutional investor, its own agreement shall be\nsatisfactory), or, in the case of any such mutilation upon surrender of such\ncertificate, the Corporation shall (at its expense) execute and deliver in lieu\nof such certificate a new certificate of like kind representing the number of\nshares of Preferred Stock represented by such lost, stolen, destroyed or\nmutilated certificate and dated the date of such lost, stolen, destroyed or\nmutilated certificate, and dividends shall accrue on the Preferred Stock\nrepresented by such new certificate from the date to which dividends have been\nfully paid on the shares of Preferred Stock represented by such lost, stolen,\ndestroyed or mutilated certificate.\n\n        9. Notices.\n\n            (a) Immediately upon any adjustment of the applicable Conversion\nPrice, the Corporation shall give written notice thereof to all holders of the\napplicable series of Preferred Stock, setting forth in reasonable detail and\ncertifying the calculation of such adjustment.\n\n                                       14\n   15\n\n            (b) The Corporation shall give written notice to all holders of\nPreferred Stock at least 10 days prior to the date on which the Corporation\ncloses its books or fixes a record date (i) with respect to any dividend or\ndistribution upon Common Stock, (ii) with respect to any pro rata subscription\noffer to holders of Common Stock or (iii) for determining rights to vote with\nrespect to any liquidation.\n\n            (c) Except as otherwise expressly provided hereunder, all notices\nreferred to in this Article V shall be in writing and shall be delivered by\nregistered or certified mail, return receipt requested and postage prepaid, or\nby reputable overnight courier service, charges prepaid, and shall be deemed to\nhave been given the third day following the date when so mailed or the date\ndesignated for delivery when so sent by courier (i) to the Corporation, at its\nprincipal executive offices and (ii) to any stockholder, at such holder's\naddress as it appears in the stock records of the Corporation (unless otherwise\nindicated by any such holder).\n\n        10. No Impairment. The Corporation shall not avoid or seek to avoid the\nobservance or performance of any of the terms to be observed or performed\nhereunder by the Corporation, but shall at all times in good faith assist in\ncarrying out all such action as may be reasonably necessary or appropriate in\norder to protect the conversion rights of the holders of the Preferred against\nimpairment.\n\nB. COMMON STOCK\n\n        1. Dividends. Subject to the rights of the holders of the Preferred\nStock, and subject to any other provisions of this Certificate of Incorporation,\nholders of shares of the Common Stock shall be entitled to receive such\ndividends and other distributions in cash, stock or property of the Corporation\nas may be declared thereon by the Board from time to time out of assets or funds\nof the Corporation legally available therefor.\n\n        2. Liquidation; Dissolution. In the event of any liquidation,\ndissolution or winding up of the affairs of the Corporation, whether voluntary\nor involuntary, after payment or provision for payment of the debts and other\nliabilities of the Corporation and after payment or provision for payment to the\nholders of each series of the Preferred Stock of all amounts required in\naccordance with Paragraph V.A, the remaining assets and funds of the Corporation\nshall be divided among and paid to the holders of the Common Stock.\n\n        3. Voting.\n\n        (a) At every meeting of the shareholders every holder of shares of the\nCommon Stock shall be entitled to one vote in person or by proxy for each share\nof such Common Stock standing in his name on the stock transfer records of the\nCorporation.\n\n        (b) No shareholder shall have the right to cumulate votes in the\nelection of directors.\n\n        4. Preemptive Rights. No holder of shares of the Common Stock of the\nCorporation shall, as such holder, be entitled as of right to subscribe for,\npurchase or receive any part of any new or additional issue of stock of any\nclass, whether now or hereafter authorized, or of bonds, debentures or other\nsecurities convertible into or exchangeable for stock, but all such additional\n\n                                       15\n   16\n\nshares of stock of any class, or bonds, debentures or other securities\nconvertible into or exchangeable for stock, may be issued and disposed of by the\nBoard on such terms and for such consideration, so far as may be permitted by\nlaw, and to such persons, as the Board in its absolute discretion may deem\nadvisable.\n\n                                   ARTICLE VI\n\n            A director of the Corporation shall, to the fullest extent permitted\nby the DGCL as it now exists or as it may hereafter be amended, not be\npersonally liable to the Corporation or its stockholders for monetary damages\nfor breach of fiduciary duty as a director, except for liability (i) for any\nbreach of the director's duty of loyalty to the Corporation or its stockholders,\n(ii) for acts or omissions not in good faith or which involve intentional\nmisconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,\nor (iv) for any transaction from which the director derived any improper\npersonal benefit. If the DGCL is amended, after approval by the stockholders of\nthis Article V, to authorize corporate action further eliminating or limiting\nthe personal liability of directors, then the liability of a director of the\nCorporation shall be eliminated or limited to the fullest extent permitted by\nthe DGCL, as so amended.\n\n            Any amendment, repeal or modification of this Article V, or the\nadoption of any provision of this Certificate of Incorporation inconsistent with\nthis Article V by the stockholders of the Corporation shall not apply to or\nadversely affect any right or protection of a director of the Corporation\nexisting at the time of such amendment, repeal, modification or adoption.\n\n                                   ARTICLE VII\n\n            To the fullest extent permitted by applicable law, the Corporation\nis authorized to provide indemnification of (and advancement of expenses to)\nagents of the Corporation (and any other persons to which State law permits the\nCorporation to provide indemnification) through Bylaw provisions, agreements\nwith such agents or other persons, vote of stockholders or disinterested\ndirectors or otherwise, in excess of the indemnification and advancement\notherwise permitted by Section 145 of the DGCL, subject only to limits created\nby applicable State law (statutory or non-statutory), with respect to actions\nfor breach of duty to the Corporation, its stockholders, and others.\n\n            Any amendment, repeal or modification of the foregoing provision of\nthis Article VII shall not adversely affect any right or protection of a\ndirector, officer, agent, or other person existing at the time of, or increase\nthe liability of any director of this Corporation with respect to any acts or\nomissions of such director, officer or agent occurring prior to, such amendment,\nrepeal, modification or adoption.\n\n                                  ARTICLE VIII\n\n            The Corporation reserves the right to adopt, amend, alter,\nsupplement, rescind or repeal in any respect any provision contained in this\nCertificate of Incorporation, in the manner now or hereafter prescribed by\nstatute or applicable law, and all rights conferred upon stockholders herein are\ngranted subject to this reservation.\n\n                                       16\n   17\n\n                                   ARTICLE IX\n\n            Subject to the provisions of Article V hereof, the Board of\nDirectors may from time to time adopt, amend, alter, supplement, rescind or\nrepeal any or all of the Bylaws of the Corporation without any action on the\npart of the stockholders; provided, however, that the stockholders may adopt,\namend or repeal any Bylaw adopted by the Board of Directors, and no amendment or\nsupplement to the Bylaws adopted by the Board of Directors shall vary or\nconflict with any amendment or supplement adopted by the stockholders.\n\n                                    ARTICLE X\n\n            Subject to the provisions of Article V, the number of directors of\nthe Corporation shall be set from time to time by resolution of the Board of\nDirectors.\n\n                                   ARTICLE XI\n\n            Elections of directors need not be by written ballot unless the\nBylaws of the Corporation shall so provide.\n\n                                   ARTICLE XII\n\n            Meetings of stockholders may be held within or without the State of\nDelaware, as the Bylaws may provide. The books of the Corporation may be kept\n(subject to any statutory requirements) outside the State of Delaware at such\nplace or places as may be designated from time to time by the Board of Directors\nor in the Bylaws of the Corporation.\n\n\n                                       17\n   18\n\n\n        IN WITNESS WHEREOF, this Certificate of Incorporation has been executed\nby Caldera Systems, Inc. as of this 3rd day of March, 2000.\n\n\n                                   CALDERA SYSTEMS, INC.\n                                   (A UTAH CORPORATION)\n\n                                   By: \/s\/ RANSOM H. LOVE\n                                       -----------------------------------------\n                                          Ransom H. Love, President and Chief\n                                          Executive Officer\n\n\n                                       18\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6993],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9573,9575],"class_list":["post-41591","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-caldera-systems-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-formation","corporate_contracts_types-formation__incorporation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41591","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41591"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41591"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41591"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}