{"id":41619,"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-of-myspace-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"certificate-of-incorporation-of-myspace-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/certificate-of-incorporation-of-myspace-inc.html","title":{"rendered":"Certificate of Incorporation of MySpace, Inc."},"content":{"rendered":"
 
CERTIFICATE OF INCORPORATION <\/b><\/p> \n\n
OF <\/b><\/p>  
MYSPACE, INC. <\/b><\/p>  
The undersigned, a natural person (the \u0093Sole Incorporator<\/i><\/b>\u0094), for the purpose of organizing a corporation to conduct the business and promote the purposes hereinafter stated, under the\nprovisions and subject to the requirements of the laws of the State of Delaware hereby certifies that: <\/p>  
I. <\/b><\/p>  
The name of this company is MySpace, Inc. (the \u0093Company<\/i><\/b>\u0094). <\/p>  
II. <\/b><\/p>  
The address of the\nregistered office of the corporation in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, and the name of the registered agent of the corporation in the State of Delaware at such address is CT Corporation\nSystem.<\/b> <\/p>  
III. <\/b><\/p>  
The purpose of the Company is to engage in any lawful act or activity for\nwhich a corporation may be organized under the Delaware General Corporation Law (\u0093DGCL<\/i><\/b>\u0094). <\/p>  
IV. <\/b><\/p>  
A. <\/b>The Company is authorized to issue two classes of stock to be designated, respectively, \u0093Common Stock\u0094 and \u0093Preferred Stock.\u0094 The total number of shares that the Company is authorized to issue is fifteen\nmillion eight hundred eighty thousand (15,880,000) shares, fifteen million (15,000,000) shares of which shall be Common Stock (the \u0093Common Stock<\/i><\/b>\u0094) and eight hundred eighty thousand (880,000) shares of which shall be Preferred\nStock (the \u0093Preferred Stock<\/i><\/b>\u0094). The Preferred Stock shall have a par value of one-tenth of one cent ($0.001) per share and the Common Stock shall have a par value of one-tenth of one cent ($0.001) per share. <\/p>  
B. <\/b>The number of authorized shares of Common Stock may be increased or\ndecreased (but not below the number of shares of Common Stock then outstanding) by the affirmative vote of the holders of a majority of the stock of the Company entitled to vote (voting together as a single class on an as-if-converted basis).\n\n<\/p>  
C. <\/b>All of the authorized shares of Preferred Stock are\nhereby designated \u0093Series A Preferred Stock\u0094 (the \u0093Series Preferred<\/i><\/b>\u0094).<\/b> <\/p> \n 
1. <\/p>\n\n\n\n\n 
D. <\/b>The rights, preferences, privileges, restrictions and other matters relating to the Series\nPreferred are as follows, provided<\/u>, however<\/u>, that the holders of an aggregate of a majority of the then outstanding shares of the Series Preferred may waive any of the following rights, powers, preferences, or privileges applicable to\nall shares of the Series Preferred in any given instance without prejudice to such rights, powers, preferences, or privileges in any other instance, and any such waiver shall bind all future holders of the shares of Series Preferred: <\/p> \n\n\n1.<\/b><\/b> DIVIDEND<\/small> RIGHTS<\/small>.<\/b> \n
(a) <\/b>Holders of Series Preferred, in preference to the holders of Common Stock, shall be entitled to receive, when, as and if\ndeclared by the Board of Directors (the \u0093Board<\/i><\/b>\u0094), but only out of funds that are legally available therefor, cash dividends of $0.46 per annum on each outstanding share of Series Preferred. Such dividends shall be payable\nonly when, as and if declared by the Board and shall be non-cumulative. The Board of Directors is under no obligation to declare dividends and no rights shall accrue to the holders of Preferred Stock if dividends are not declared. <\/p>  
(b) <\/b>[intentionally omitted] <\/p>  
(c) <\/b>So long as any shares of Series Preferred are\noutstanding, the Company shall not pay or declare any dividend, whether in cash or property, or make any other distribution on the Common Stock, or purchase, redeem or otherwise acquire for value any shares of Common Stock until all dividends as set\nforth in Section 1(a) above on the Series Preferred shall have been paid or declared and set apart, except for: <\/p>  
(i) <\/b>acquisitions of Common Stock by the Company pursuant to agreements which permit the Company to repurchase such shares at cost\n(or the lesser of cost or fair market value) upon termination of services to the Company; <\/p>  
(ii) <\/b>acquisitions of Common Stock in exercise of the Company\u0092s right of first refusal to repurchase such shares; or\n\n<\/p>  
(iii) <\/b>distributions to holders of\nCommon Stock in accordance with Sections 3 and 4. <\/p>  
(d) <\/b>In the event dividends are paid on any share of Common Stock, the Company shall pay an additional dividend on all outstanding shares of Series Preferred in a per share amount equal (on an as-if converted to Common Stock basis) to\nthe amount paid or set aside for each share of Common Stock. <\/p>  
(e) <\/b>The provisions of Sections 1(c) and 1(d) shall not apply to a dividend payable solely in Common Stock to which the provisions of Section 5(f) hereof are applicable, or any repurchase of any outstanding\nsecurities of the Company that is approved by (i) the Board and (ii) holders of a majority of the then outstanding shares of Series Preferred as may be required by this Certificate of Incorporation. <\/p> \n 
2. <\/p>\n\n\n\n\n 
(f) <\/b>California Code Sections 502 and 503 shall not apply with respect to\ndistributions on shares junior to the Series Preferred as they relate to repurchases of shares of Common Stock upon termination of employment or service as a consultant, officer or director. <\/p> \n\n\n2. <\/b><\/b>VOTING<\/small> RIGHTS<\/small>.<\/b> \n
(a) <\/b>General Rights.<\/b> Each holder of shares of the Series Preferred shall be entitled to the number of votes equal to the\nnumber of shares of Common Stock into which such shares of Series Preferred could be converted (pursuant to Section 5 hereof) immediately after the close of business on the record date fixed for such meeting or the effective date of such written\nconsent and shall have voting rights and powers equal to the voting rights and powers of the Common Stock and shall be entitled to notice of any stockholders\u0092 meeting in accordance with the bylaws of the Company. Except as otherwise provided\nherein or as required by law, the Series Preferred shall vote together with the Common Stock at any annual or special meeting of the stockholders and not as a separate class, and may act by written consent in the same manner as the Common Stock.\nEach holder of shares of Common Stock shall be entitled to one vote for each share thereof held. <\/p>  
(b) <\/b>Separate Vote of Series Preferred. <\/b>For so long as any shares of Series Preferred remain outstanding, in addition to any\nother vote or consent required herein or by law, the vote or written consent of the holders of a majority of the outstanding Series Preferred shall be necessary for effecting or validating the following actions (whether by merger, recapitalization\nor otherwise): <\/p>  
(i) <\/b>Any amendment,\nalteration, or repeal of any provision of the Certificate of Incorporation or the Bylaws of the Company (including any filing of a Certificate of Designation) that relates to and would adversely affect the Series Preferred in any material respect;\n\n<\/p>  
(ii) <\/b>Any alteration or change to the\npowers, preferences, or other special rights, privileges or restrictions of the Series Preferred that is materially adverse to the holders of the Series Preferred; <\/p>  
(iii) <\/b>Any increase or decrease in the authorized number of shares of Series Preferred; <\/p>  
(iv) <\/b>Any authorization or any designation, whether by\nreclassification or otherwise, of any new class or series of stock or any other securities convertible into equity securities of the Company ranking on a parity with or senior to the Series Preferred in right of redemption, liquidation preference or\ndividend rights or any increase in the authorized or designated number of any such new class or series; <\/p>  
(v) <\/b>Any redemption, repurchase, payment or declaration of dividends or other distributions with respect to Common Stock or\nPreferred Stock (except for acquisitions of Common Stock by the Company permitted by Section 1(c)(i), (ii) and (iii) hereof; or<\/b> <\/p> \n\n 
3. <\/p>\n\n\n\n\n 
(vi) <\/b>Any increase in the authorized number of members of the Company\u0092s Board.\n<\/p>  
(c) <\/b>Election of Board of Directors.\n<\/b> <\/p>  
(i) <\/b>The holders of Series\nPreferred, voting as a separate class, shall be entitled to elect one (1) member of the Board (the \u0093Preferred Director<\/i><\/b>\u0094) at each meeting or pursuant to each consent of the Company\u0092s stockholders for the election of\ndirectors, and to remove from office such Preferred Director and to fill any vacancy caused by the resignation, death or removal of such Preferred Director. <\/p>  
(ii) <\/b>The holders of Common Stock, voting as a separate class, shall be entitled to elect three (3) members of the Board at each\nmeeting or pursuant to each consent of the Company\u0092s stockholders for the election of directors, and to remove from office such directors and to fill any vacancy caused by the resignation, death or removal of such directors. <\/p>  
(iii) <\/b>The holders of Common Stock and Series\nPreferred, voting together as a single class on an as-if converted basis, shall be entitled to elect all remaining members of the Board at each meeting or pursuant to each consent of the Company\u0092s stockholders for the election of directors, and\nto remove from office such directors and to fill any vacancy caused by the resignation, death or removal of such directors. <\/p>  
(iv) <\/b>No person entitled to vote at an election for directors may cumulate votes to which such person is entitled, unless, at the\ntime of such election, the Company is subject to Section 2115 of the California General Corporation Law (\u0093CGCL<\/i><\/b>\u0094). During such time or times that the Company is subject to Section 2115(b) of the CGCL, every stockholder\nentitled to vote at an election for directors as provided above may cumulate such stockholder\u0092s votes and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which such\nstockholder\u0092s shares are otherwise entitled, or distribute the stockholder\u0092s votes on the same principle among as many candidates as such stockholder desires. No stockholder, however, shall be entitled to so cumulate such\nstockholder\u0092s votes unless (i) the names of such candidate or candidates have been placed in nomination prior to the voting and (ii) the stockholder has given notice at the meeting, prior to the voting, of such stockholder\u0092s intention to\ncumulate such stockholder\u0092s votes. If any stockholder has given proper notice to cumulate votes, all stockholders may cumulate their votes for any candidates who have been properly placed in nomination. Under cumulative voting, the candidates\nreceiving the highest number of votes, up to the number of directors to be elected, are elected. <\/p>  
(v) <\/b>During such time or times that the Company is subject to Section 2115(b) of the CGCL, one or more directors may be removed from\noffice at any time without cause by the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote for that director as provided above; provided, however<\/i>, that unless the entire Board is removed, no\nindividual director may be removed when the votes cast against such director\u0092s removal, or not consenting in writing to such removal, would be sufficient to elect that director if voted cumulatively at an election which the same total number of\nvotes were cast (or, \n\n<\/p> \n 
4. <\/p>\n\n\n\n\n 
\nif such action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the time of such\ndirector\u0092s most recent election were then being elected.<\/b> <\/p> \n\n\n\n3.<\/b><\/b> LIQUIDATION<\/small> RIGHTS<\/small>.<\/b> \n
(a) <\/b>Upon any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary (a \u0093Liquidation\nEvent<\/i><\/b>\u0094), before any distribution or payment shall be made to the holders of any Common Stock, the holders of Series Preferred shall be entitled to be paid out of the assets of the Company legally available for distribution for each\nshare of Series Preferred held by them, an amount per share of Series Preferred equal to $12.5925 (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares of Series Preferred after the\nfiling date hereof) plus all declared and unpaid dividends on the Series Preferred. If, upon any such Liquidation Event, the assets of the Company shall be insufficient to make payment in full to all holders of Series Preferred of the liquidation\npreference set forth in this Section 3(a), then such assets (or consideration) shall be distributed among the holders of Series Preferred at the time outstanding, ratably in proportion to the full amounts to which they would otherwise be\nrespectively entitled. <\/p>  
(b) <\/b>After the\npayment of the full liquidation preference of the Series Preferred as set forth in Section 3(a) above, the remaining assets of the Company legally available for distribution, if any, shall be distributed ratably to the holders of the Common Stock.\n\n<\/p> \n\n\n4.<\/b><\/b> ASSET<\/small> TRANSFER<\/small> OR<\/small> ACQUISITION<\/small> RIGHTS<\/small>. <\/b> \n
(a) <\/b>For the purposes of this Section 4 a Liquidation\nEvent shall be deemed to include an Acquisition or an Asset Transfer, as hereinafter defined. For purposes of this Section 4, (i) \u0093Acquisition<\/i><\/b>\u0094 shall mean (A) any consolidation or merger of the Company with or into any other\ncorporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the stockholders of the Company immediately prior to such consolidation, merger or reorganization,\ncontinue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or\nreorganization; or (B) any transaction or series of related transactions to which the Company is a party in which in excess of fifty percent (50%) of the Company\u0092s voting power is transferred (other than to affiliates of the Company\u0092s\nstockholders); provided<\/i> that an Acquisition shall not include any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the\nCompany is cancelled or converted or a combination thereof; provided further<\/i> that the Company shall not be deemed to be a party to any transaction or series of transactions contemplated by clause (B) of this Section 4(a) by virtue of the\nCompany consenting to such transaction or being a party to agreements that are ancillary to such transaction (such as stockholder agreements, registration rights agreements and similar agreements) and (ii) \u0093Asset Transfer<\/i><\/b>\u0094\n\nshall mean a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company. <\/p> \n 
5. <\/p>\n\n\n\n\n 
(b) <\/b>In any Acquisition or Asset Transfer, if the consideration to be received is\nsecurities of a corporation or other property other than cash, its value will be deemed its fair market value as determined in good faith by the Board on the date such determination is made. <\/p> \n\n\n\n5.<\/b><\/b> CONVERSION<\/small> RIGHTS<\/small>.<\/b> \n
The holders of the Series Preferred shall have the following rights with respect to the conversion of the Series Preferred into shares of\nCommon Stock: <\/p>  
(a) <\/b>Optional\nConversion.<\/b> Subject to and in compliance with the provisions of this Section 5, any shares of Series Preferred may, at the option of the holder, be converted at any time into fully-paid and nonassessable shares of Common Stock. The number of\nshares of Common Stock to which a holder of Series Preferred shall be entitled upon conversion shall be the product obtained by multiplying the \u0093Series Preferred Conversion Rate\u0094 then in effect (determined as provided in Section 5(b)) by\nthe number of shares of Series Preferred being converted. <\/p>  
(b) <\/b>Series Preferred Conversion Rate.<\/b> The conversion rate in effect at any time for conversion of the Series Preferred (the \u0093Series Preferred Conversion Rate<\/i><\/b>\u0094) shall be the\nquotient obtained by dividing the Original Trigger Price (as hereinafter defined) of the Series Preferred by the \u0093Series Preferred Conversion Price,\u0094 calculated as provided in Section 5(c). The \u0093Original Trigger\nPrice<\/i><\/b>\u0094 of the Series Preferred shall be five dollars and seventy-five cents ($5.75) per share (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares after the filing date\nhereof). <\/p>  
(c) <\/b>Series Preferred\nConversion Price.<\/b> The conversion price for the Series Preferred shall initially be the Original Trigger Price of the Series Preferred (the \u0093Series Preferred Conversion Price<\/i><\/b>\u0094). Such initial Series Preferred Conversion\nPrice shall be adjusted from time to time in accordance with this Section 5. All references to the Series Preferred Conversion Price herein shall mean the Series Preferred Conversion Price as so adjusted. <\/p>  
(d) <\/b>Mechanics of Conversion.<\/b> Each holder of\nSeries Preferred who desires to convert the same into shares of Common Stock pursuant to this Section 5 shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or any transfer agent for the Series\nPreferred, and shall give written notice to the Company at such office that such holder elects to convert the same. Such notice shall state the number of shares of Series Preferred being converted. Thereupon, the Company shall promptly issue and\ndeliver at such office to such holder a certificate or certificates for the number of shares of Common Stock to which such holder is entitled and shall promptly pay (i) in cash or, to the extent sufficient funds are not then legally available\ntherefor, in Common Stock (at the Common Stock\u0092s fair market value determined by the Board as of the date of such conversion), any declared and unpaid dividends on the shares of Series Preferred being converted and (ii) in cash (at the Common\nStock\u0092s fair market value determined by the Board as of the date of conversion) the value of any fractional share of Common Stock otherwise issuable to any holder of Series Preferred. Such conversion shall be deemed to have been made at the\nclose of business on the date of such surrender of the certificates representing the shares of Series Preferred to be \n\n<\/p> \n 
6. <\/p>\n\n\n\n\n 
\nconverted, and the person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder\nof such shares of Common Stock on such date. <\/p>  
(e) <\/b>Adjustment for Stock Splits and Combinations.<\/b> If at any time or from time to time on or after the date that the first share of Series Preferred is issued (the \u0093Original Issue Date<\/i><\/b>\u0094) the Company\neffects a subdivision of the outstanding Common Stock without a corresponding subdivision of the Series Preferred, the Series Preferred Conversion Price in effect immediately before that subdivision shall be proportionately decreased. Conversely, if\nat any time or from time to time after the Original Issue Date the Company combines the outstanding shares of Common Stock into a smaller number of shares without a corresponding combination of the Series Preferred, the Series Preferred Conversion\nPrice in effect immediately before the combination shall be proportionately increased. Any adjustment under this Section 5(e) shall become effective at the close of business on the date the subdivision or combination becomes effective. <\/p>\n\n 
(f) <\/b>Adjustment for Common Stock Dividends and\nDistributions.<\/b> If at any time or from time to time on or after the Original Issue Date the Company pays to holders of Common Stock a dividend or other distribution in additional shares of Common Stock without a corresponding dividend or other\ndistribution to holders of Preferred Stock, the Series Preferred Conversion Price then in effect shall be decreased as of the time of such issuance, as provided below: <\/p>  
(i) <\/b>The Series Preferred Conversion Price shall be adjusted by multiplying the Series Preferred\nConversion Price then in effect by a fraction equal to: <\/p>  
(A) <\/b>the numerator of which is the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance, and <\/p>  
(B) <\/b>the denominator of which is the total number of shares of Common Stock issued and outstanding\nimmediately prior to the time of such issuance plus the number of shares of Common Stock issuable in payment of such dividend or distribution; <\/p>  
(ii) <\/b>If the Company fixes a record date to determine which holders of Common Stock are entitled to receive such dividend or other\ndistribution, the Series Preferred Conversion Price shall be fixed as of the close of business on such record date and the number of shares of Common Stock shall be calculated immediately prior to the close of business on such record date; and\n\n<\/p>  
(iii) <\/b>If such record date is fixed and\nsuch dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Series Preferred Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Series\nPreferred Conversion Price shall be adjusted pursuant to this Section 5(f) to reflect the actual payment of such dividend or distribution. <\/p>  
(g) <\/b>Adjustment for Reclassification, Exchange, Substitution, Reorganization, Merger or Consolidation.<\/b> If at any time or from\ntime to time on or after the \n<\/p> \n 
7. <\/p>\n\n\n\n 
\nOriginal Issue Date the Common Stock issuable upon the conversion of the Series Preferred is changed into the same or a different number of shares of any\nclass or classes of stock, whether by recapitalization, reclassification, merger, consolidation or otherwise (other than an Acquisition or Asset Transfer as defined in Section 4 or a subdivision or combination of shares or stock dividend provided\nfor elsewhere in this Section 5), in any such event each holder of Series Preferred shall then have the right to convert such stock into the kind and amount of stock and other securities and property receivable upon such recapitalization,\nreclassification, merger, consolidation or other change by holders of the maximum number of shares of Common Stock into which such shares of Series Preferred could have been converted immediately prior to such recapitalization, reclassification,\nmerger, consolidation or change, all subject to further adjustment as provided herein or with respect to such other securities or property by the terms thereof. In any such case, appropriate adjustment shall be made in the application of the\nprovisions of this Section 5 with respect to the rights of the holders of Series Preferred after the capital reorganization to the end that the provisions of this Section 5 (including adjustment of the Series Preferred Conversion Price then in\neffect and the number of shares issuable upon conversion of the Series Preferred) shall be applicable after that event and be as nearly equivalent as practicable. <\/p>  
(h) <\/b>Sale of Shares Below Series Preferred Conversion Price.<\/b> <\/p>  
(i) <\/b>If at any time or from time to time on or after\nthe Original Issue Date the Company issues or sells, or is deemed by the express provisions of this Section 5(h) to have issued or sold, Additional Shares of Common Stock (as defined below), other than as provided in Section 5(e), 5(f) or 5(g)\nabove, for an Effective Price (as defined below) less than the then effective Series Preferred Conversion Price (a \u0093Qualifying Dilutive Issuance<\/i><\/b>\u0094), then and in each such case, the then existing Series Preferred Conversion\nPrice shall be reduced, as of the opening of business on the date of such issue or sale, to a price determined by multiplying the Series Preferred Conversion Price in effect immediately prior to such issuance or sale by a fraction equal to:\n\n<\/p>  
(A) <\/b>the numerator of which shall be\n(A) the number of shares of Common Stock deemed outstanding (as determined below) immediately prior to such issue or sale, plus (B) the number of shares of Common Stock which the Aggregate Consideration (as defined below) received or deemed received\nby the Company for the total number of Additional Shares of Common Stock so issued would purchase at such then-existing Series Preferred Conversion Price, and <\/p> \n
(B) <\/b>the denominator of which shall be the number of shares of Common Stock deemed outstanding (as determined below) immediately\nprior to such issue or sale plus the total number of Additional Shares of Common Stock so issued. <\/p>  
For the purposes of the preceding sentence, the number of shares of Common Stock deemed to be outstanding as of a given date shall be the sum of (A) the\nnumber of shares of Common Stock outstanding, (B) the number of shares of Common Stock into which the then outstanding shares of Series Preferred could be converted if fully converted on the day immediately preceding the given date, and (C) the\nnumber of shares of Common Stock which are \n<\/p> \n 
8. <\/p>\n\n\n\n\n 
\nissuable upon the exercise or conversion of all other rights, options and convertible securities outstanding on the day immediately preceding the given date.\n<\/p>  
(ii) <\/b>No adjustment shall be made to\nthe Series Preferred Conversion Price in an amount less than one cent per share. Any adjustment required by this Section 5(h) shall be rounded to the nearest one cent $0.01 per share. Any adjustment otherwise required by this Section 5(h) that is\nnot required to be made due to the preceding two sentences shall be included in any subsequent adjustment to the Series Preferred Conversion Price. <\/p>  
(iii) <\/b>For the purpose of making any adjustment required under this Section 5(h), the aggregate consideration received by the\nCompany for any issue or sale of securities (the \u0093Aggregate Consideration<\/i><\/b>\u0094) shall be defined as: (A) to the extent it consists of cash, be computed at the gross amount of cash received by the Company before deduction of any\nunderwriting or similar commissions, compensation or concessions paid or allowed by the Company in connection with such issue or sale and without deduction of any expenses payable by the Company, (B) to the extent it consists of property other than\ncash, be computed at the fair value of that property as determined in good faith by the Board, and (C) if Additional Shares of Common Stock, Convertible Securities (as defined below) or rights or options to purchase either Additional Shares of\nCommon Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Company for a consideration which covers both, be computed as the portion of the consideration so received that may be\nreasonably determined in good faith by the Board to be allocable to such Additional Shares of Common Stock, Convertible Securities or rights or options. <\/p>  
(iv) <\/b>For the purpose of the adjustment required under this Section 5(h), if the Company issues or sells (x) Preferred Stock or\nother stock, options, warrants, purchase rights or other securities convertible into, Additional Shares of Common Stock (such convertible stock or securities being herein referred to as \u0093Convertible Securities<\/i><\/b>\u0094) or (y) rights\nor options for the purchase of Additional Shares of Common Stock or Convertible Securities and if the Effective Price of such Additional Shares of Common Stock is less than the Series Preferred Conversion Price, in each case the Company shall be\ndeemed to have issued at the time of the issuance of such rights or options or Convertible Securities the maximum number of Additional Shares of Common Stock issuable upon exercise or conversion thereof and to have received as consideration for the\nissuance of such shares an amount equal to the total amount of the consideration, if any, received by the Company for the issuance of such rights or options or Convertible Securities plus: <\/p>  
(A) <\/b>in the case of such rights or options, the\nminimum amounts of consideration, if any, payable to the Company upon the exercise of such rights or options; and <\/p>  
(B) <\/b>in the case of Convertible Securities, the minimum amounts of consideration, if any, payable to the Company upon the\nconversion thereof (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities); provided<\/i> that if the minimum amounts of such consideration cannot be ascertained, but are a function of antidilution or\nsimilar protective clauses, the Company shall be deemed to have received the minimum amounts of consideration without reference to such clauses. <\/p> \n\n 
9. <\/p>\n\n\n\n\n 
(C) <\/b>If the minimum amount of consideration payable to the Company upon the\nexercise or conversion of rights, options or Convertible Securities is reduced over time or on the occurrence or non-occurrence of specified events other than by reason of antidilution adjustments, the Effective Price shall be recalculated using the\nfigure to which such minimum amount of consideration is reduced; provided further,<\/i> that if the minimum amount of consideration payable to the Company upon the exercise or conversion of such rights, options or Convertible Securities is\nsubsequently increased, the Effective Price shall be again recalculated using the increased minimum amount of consideration payable to the Company upon the exercise or conversion of such rights, options or Convertible Securities; and <\/p>  
(D) <\/b>No further adjustment of the Series Preferred\nConversion Price, as adjusted upon the issuance of such rights, options or Convertible Securities, shall be made as a result of the actual issuance of Additional Shares of Common Stock or the exercise of any such rights or options or the conversion\nof any such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities shall expire without having been exercised, the Series Preferred Conversion Price as adjusted upon the\nissuance of such rights, options or Convertible Securities shall be readjusted to the Series Preferred Conversion Price which would have been in effect had an adjustment been made on the basis that the only Additional Shares of Common Stock so\nissued were the Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such rights or options or rights of conversion of such Convertible Securities, and such Additional Shares of Common Stock, if any, were issued or\nsold for the consideration actually received by the Company upon such exercise, plus the consideration, if any, actually received by the Company for the granting of all such rights or options, whether or not exercised, plus the consideration\nreceived for issuing or selling the Convertible Securities actually converted, plus the consideration, if any, actually received by the Company (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) on\nthe conversion of such Convertible Securities, provided<\/i> that such readjustment shall not apply to prior conversions of Series Preferred. <\/p>  
(v) <\/b>For the purpose of making any adjustment to the Conversion Price of the Series Preferred required under this Section 5(h),\n\n\u0093Additional Shares of Common Stock\u0094 shall mean all shares of Common Stock issued by the Company or deemed to be issued pursuant to this Section 5(h) (including shares of Common Stock subsequently reacquired or retired by the Company),\nother than: <\/p>  
(A) <\/b>shares of Common\nStock issued upon conversion of the Series Preferred; <\/p>  
(B) <\/b>up to 401,618 shares of Common Stock and\/or options, warrants or other Common Stock purchase rights and the Common Stock issued pursuant to such options, warrants or other rights (as adjusted for any stock dividends,\ncombinations, splits, recapitalizations and the like after the filing date hereof) after the Original Issue Date to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock purchase or stock\noption plans or other arrangements that are approved by the Board or a compensation committee of the Board; provided, however, <\/i>that such amount shall be increased to reflect any shares of Common Stock (i) not issued pursuant to the \n<\/p> \n 
10. <\/p>\n\n\n\n\n 
\nrights, agreements, option or warrants (\u0093Unexercised Options<\/i><\/b>\u0094) as a result of the termination of such Unexercised Options or (ii)\nreacquired by the Company from employees, directors or consultants at cost (or the lesser of cost or fair market value) pursuant to agreements which permit the Company to repurchase such shares upon termination of services to the Company;\n<\/p>  
(C) <\/b>shares of Common Stock issued\npursuant to the exercise of Convertible Securities outstanding as of the Original Issue Date; <\/p>  
(D) <\/b>shares of Common Stock or Convertible Securities issued pursuant to or in connection with (i) any equipment loan or leasing\narrangement, real property leasing arrangement or debt financing from a bank, or similar financial institution and\/or (ii) strategic transactions involving the Company and other entities, including (a) acquisitions (of assets or equity interests),\nmergers and\/or consolidations; (b) joint ventures, manufacturing, marketing or distribution arrangements; or (c) technology transfer or development arrangements; provided <\/i>that the issuances in reliance on this clause (D) shall not exceed\n400,000 shares of Common Stock or Convertible Securities (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like after the filing date hereof) in any single transaction or series of related transactions unless such\ntransaction or series of related transaction has been approved by the Company\u0092s Board, including the approval of the Preferred Director (in which case the limitation in this proviso shall not apply); <\/p>  
(E) <\/b>shares of Common Stock or Convertible Securities\nissued pursuant to Section 3.6 of that certain Stockholders Agreement by and among the Company and the stockholders identified therein to be entered into in February 2005, as such agreement may be amended from time to time; and <\/p>  
(F) <\/b>any other shares of Common Stock or Convertible\nSecurities issued upon the express written consent of the holders of a majority of the then outstanding shares of Series Preferred, which consent must expressly acknowledge that such shares of Common Stock or Convertible Securities will not\nconstitute \u0093Additional Shares of Common Stock\u0094 for purposes of Section 5(h). <\/p>  
References to Common Stock in the subsections of this clause (v) above shall mean all shares of Common Stock issued by the Company or deemed to be issued pursuant to this Section 5(h). The \u0093Effective\nPrice<\/i><\/b>\u0094 of Additional Shares of Common Stock shall mean the quotient determined by dividing the total number of Additional Shares of Common Stock issued or sold, or deemed to have been issued or sold by the Company under this Section\n5(h), into the Aggregate Consideration received, or deemed to have been received by the Company for such issue under this Section 5(h), for such Additional Shares of Common Stock. In the event that the number of shares of Additional Shares of Common\nStock or the Effective Price cannot be ascertained at the time of issuance, such Additional Shares of Common Stock shall be deemed issued immediately upon the occurrence of the first event that makes such number of shares or the Effective Price, as\napplicable, ascertainable. <\/p>  
(vi) <\/b>In the\nevent that the Company issues or sells, or is deemed to have issued or sold, Additional shares of Common Stock in a Qualifying Dilutive Issuance (the \u0093First Dilutive Issuance<\/i><\/b>\u0094), then in the event that the Company issues or\nsells, or is deemed to have issued or sold, Additional Shares of Common Stock in a Qualifying Dilutive Issuance \n\n<\/p> \n 
11. <\/p>\n\n\n\n\n 
\nother than the First Dilutive Issuance as a part of the same transaction or series of related transactions as the First Dilutive Issuance (a\n\u0093Subsequent Dilutive Issuance<\/i><\/b>\u0094), then and in each such case upon a Subsequent Dilutive Issuance the Series Preferred Conversion Price shall be reduced to the Series Preferred Conversion Price that would have been in effect\nhad the First Dilutive Issuance and each Subsequent Dilutive Issuance all occurred on the closing date of the First Dilutive Issuance. <\/p>  
(i) <\/b>Certificate of Adjustment.<\/b> In each case of an adjustment or readjustment of the Series Preferred Conversion Price for\nthe number of shares of Common Stock or other securities issuable upon conversion of the Series Preferred, if the Series Preferred is then convertible pursuant to this Section 5, the Company, at its expense, shall compute such adjustment or\nreadjustment in accordance with the provisions hereof and shall, upon request, prepare a certificate showing such adjustment or readjustment, and shall mail such certificate, by first class mail, postage prepaid, to each registered holder of Series\nPreferred so requesting at the holder\u0092s address as shown in the Company\u0092s books. The certificate shall set forth such adjustment or readjustment, showing in detail the facts upon which such adjustment or readjustment is based, including a\nstatement of (i) the consideration received or deemed to be received by the Company for any Additional Shares of Common Stock issued or sold or deemed to have been issued or sold, (ii) the Series Preferred Conversion Price at the time in effect,\n(iii) the number of Additional Shares of Common Stock and (iv) the type and amount, if any, of other property which at the time would be received upon conversion of the Series Preferred. Failure to request or provide such notice shall have no effect\non any such adjustment. <\/p>  
(j) <\/b>Notices\nof Record Date.<\/b> Upon (i) any taking by the Company 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 or other distribution, or (ii) any Acquisition\n(as defined in Section 4) or other capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, any merger or consolidation of the Company with or into any other corporation, or any Asset\nTransfer (as defined in Section 4), or any voluntary or involuntary dissolution, liquidation or winding up of the Company, the Company shall mail to each holder of Series Preferred at least ten (10) days prior to (x) the record date, if any,\nspecified therein; or (y) if no record date is specified, the date upon which such action is to take effect (or, in either case, such shorter period approved by the holders of a majority of the outstanding Series Preferred) a notice specifying (A)\nthe date on which any such record is to be taken for the purpose of such dividend or distribution and a description of such dividend or distribution, (B) the date on which any such Acquisition, reorganization, reclassification, transfer,\nconsolidation, merger, Asset Transfer, dissolution, liquidation or winding up is expected to become effective, and (C) the date, if any, that is to be fixed as to when the holders of record of Common Stock (or other securities) shall be entitled to\nexchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such Acquisition, reorganization, reclassification, transfer, consolidation, merger, Asset Transfer, dissolution, liquidation or winding\nup. <\/p> \n\n 
12. <\/p>\n\n\n\n\n 
(k) <\/b>Automatic Conversion.<\/b> <\/p>  
(i) <\/b>Each share of Series Preferred shall\nautomatically be converted into shares of Common Stock, based on the then-effective Series Preferred Conversion Price, (A) at any time upon the affirmative election of the holders of a majority of the outstanding shares of the Series Preferred, or\n(B) immediately upon the closing of a firmly underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock for the account of the Company in\nwhich (i) the per share price is at least $17.25 (as adjusted for stock splits, dividends, recapitalizations and the like after the filing date hereof), and (ii) the gross cash proceeds to the Company (before underwriting discounts, commissions and\nfees) are at least $20,000,000. Upon such automatic conversion, any declared and unpaid dividends shall be paid in accordance with the provisions of Section 5(d). <\/p>  
(ii) <\/b>Upon the occurrence of either of the events specified in Section 5(k)(i) above, the outstanding\nshares of Series Preferred shall be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Company or its transfer agent; provided,\nhowever<\/i>, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless the certificates evidencing such shares of Series Preferred are either delivered to the Company or\nits transfer agent as provided below, or the holder notifies the Company or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Company to indemnify the Company from any loss\nincurred by it in connection with such certificates. Upon the occurrence of such automatic conversion of the Series Preferred, the holders of Series Preferred shall surrender the certificates representing such shares at the office of the Company or\nany transfer agent for the Series Preferred. Thereupon, there shall be issued and delivered to such holder promptly at such office and in its name as shown on such surrendered certificate or certificates, a certificate or certificates for the number\nof shares of Common Stock into which the shares of Series Preferred surrendered were convertible on the date on which such automatic conversion occurred, and any declared and unpaid dividends shall be paid in accordance with the provisions of\nSection 5(d). <\/p>  
(l) <\/b>Fractional\nShares.<\/b> No fractional shares of Common Stock shall be issued upon conversion of Series Preferred. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series Preferred by a holder thereof\nshall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, the Company\nshall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the fair market value of one share of Common Stock (as determined by the Board) on the date of conversion. <\/p>  
(m) <\/b>Reservation of Stock Issuable Upon\nConversion.<\/b> The Company 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 Preferred, such number of its shares\nof Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series Preferred. If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the\nconversion \n\n<\/p> \n 
13. <\/p>\n\n\n\n\n 
\nof all then outstanding shares of the Series Preferred, the Company will take such corporate action as may be necessary to increase its authorized but\nunissued shares of Common Stock to such number of shares as shall be sufficient for such purpose. <\/p>  
(n) <\/b>Notices.<\/b> Any notice required by the provisions of this Section 5 shall be in writing and shall be deemed effectively\ngiven: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having\nbeen sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with verification of receipt. All notices shall be\naddressed to each holder of record at the address of such holder appearing on the books of the Company. <\/p> \n\n\n\n6.<\/b> NO<\/small> REISSUANCE<\/small> OF<\/small> SERIES<\/small> PREFERRED<\/small>. <\/b>\n
No shares or shares of Series Preferred acquired by the Company by reason of\nredemption, purchase, conversion or otherwise shall be reissued. <\/p>  
V. <\/b><\/p>  
A. <\/b>The liability of the directors of\nthe Company for monetary damages shall be eliminated to the fullest extent under applicable law. <\/p>  
B. <\/b>The Company is authorized to provide indemnification of agents (as defined in Section 317 of the CGCL) for breach of duty to the Company and its\nstockholders through bylaw provisions or through agreements with the agents, or through stockholder resolutions, or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the CGCL, subject, at any time or times that the\nCompany is subject to Section 2115(b) of the CGCL, to the limits on such excess indemnification set forth in Section 204 of the CGCL. <\/p>  
C. <\/b>Any repeal or modification of this Article V shall only be prospective and shall not affect the rights under this Article V in effect at the\ntime of the alleged occurrence of any action or omission to act giving rise to liability. <\/p>  
D. <\/b>In the event that a member of the Board who is also a partner, officer, director or employee of an entity that is a direct or indirect holder of Preferred Stock or Common Stock or an employee of an entity\nthat manages such an entity (each, a \u0093Business Entity<\/i><\/b>\u0094) acquires knowledge of a potential transaction or other matter in such individual\u0092s capacity as a partner, officer or director or employee of such Business Entity or\nthe manager or general partner of such Business Entity (and other than primarily in connection with such individual\u0092s service as a member of the Board) and that may be an opportunity of interest for both the Company and such Business Entity (a\n\n\u0093Corporate Opportunity<\/i><\/b>\u0094), then the Company (i) renounces any expectancy that such director or Business Entity offer an opportunity to participate in such Corporate Opportunity to the Company and (ii) to the fullest extent\npermitted by law, waives any claim that such opportunity constituted a Corporate Opportunity that should have been presented by such director or Business Entity to the Company or any of its affiliates; provided<\/i>, however<\/i>, that such\ndirector acts in good faith. <\/p> \n 
14. <\/p>\n\n\n\n\n  
VI. <\/b><\/p>  
For the management of the business and for the conduct of the affairs of the\nCompany, and in further definition, limitation and regulation of the powers of the Company, of its directors and of its stockholders or any class thereof, as the case may be, it is further<\/i> provided<\/i> that: <\/p>  
A. <\/b>The management of the business and the conduct of the affairs of\nthe Company shall be vested in its Board. The number of directors which shall constitute the whole Board shall be fixed by the Board in the manner provided in the Bylaws, subject to any restrictions which may be set forth in this Certificate of\nIncorporation. <\/p>  
B. <\/b>The Board is expressly empowered to\nadopt, amend or repeal the Bylaws of the Company. The stockholders shall also have the power to adopt, amend or repeal the Bylaws of the Company; provided however<\/i>, that, in addition to any vote of the holders of any class or series of stock\nof the Company required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of the capital stock of the Company entitled to vote\ngenerally in the election of directors, voting together as a single class, shall be required to adopt, amend or repeal any provision of the Bylaws of the Company. <\/p>  
C. <\/b>The directors of the Company need not be elected by written ballot unless the Bylaws so provide. <\/p>  
D<\/b>. Prior to the issuance of any capital stock of the Company, the\nCompany reserves the right to amend the provisions in this Certificate of Incorporation and in any certificate amendatory hereof in the manner now or hereafter prescribed by law, and all rights conferred on stockholders or others hereunder or\nthereunder are granted subject to such reservation. <\/p>  
VII.\n\n<\/b><\/p>  
The name and the mailing address of the Sole Incorporator\nis as follows: <\/p>  
Christopher DeWolfe <\/p> 
c\/o MySpace, Inc. <\/p> 
1333 Second Street\n<\/p> 
Santa Monica, CA 90401 <\/p> \n 
15. <\/p>\n\n\n\n\n 
IN<\/small> WITNESS<\/small> WHEREOF<\/small><\/b><\/small>, this Certificate\nhas been subscribed this 10th day of February 2005 by the undersigned who affirms that the statements made herein are true and correct. <\/p> \n\n\n\n\n\n\n\n\n 
\/s\/ Christopher DeWolfe<\/b>\n   <\/p>\n 
Christopher DeWolfe<\/b>\n   <\/p>\n 
Sole Incorporator<\/b>\n    \n <\/p>\n 
16. <\/p> 
CERTIFICATE OF INCORPORATION <\/p>\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7885],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9573,9575],"class_list":["post-41619","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intermix-media-inc","corporate_contracts_industries-retail__electronics","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\/41619","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=41619"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41619"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41619"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41619"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}