Exhibit 2.1
8TRACKS, INC.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
8tracks, Inc., a corporation
organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General
Corporation Law”), does hereby certify as follows.
1.
The name of this corporation is 8tracks, Inc. and that this corporation was originally incorporated pursuant to the General Corporation
Law on October 13, 2006 under the name 8tracks, Inc.
2.
The Board of Directors of this corporation duly adopted resolutions proposing to amend and restate the Certificate of Incorporation
of this corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation and
its stockholders, and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor,
which resolution setting forth the proposed amendment and restatement is as follows.
RESOLVED, that
the Certificate of Incorporation of this corporation be amended and restated in its entirety to read as set forth on Exhibit
A attached hereto and incorporated herein by this reference.
3. Exhibit A
referred to above is attached hereto as Exhibit A and is hereby incorporated herein by this reference. This Restated Certificate
of Incorporation was approved by the holders of the requisite number of shares of this corporation in accordance with Section 228
of the General Corporation Law.
4. This Restated
Certificate of Incorporation, which restates and integrates and further amends the provisions of this corporation’s Certificate
of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.
IN WITNESS WHEREOF,
this Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation on this 24th day
of May, 2016.
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By: |
/s/ David Porter |
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David Porter, President |
Exhibit A
8TRACKS, INC.
AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION
ARTICLE I: NAME.
The name of this corporation
is 8TRACKS, INC. (the “Corporation”)
ARTICLE II:
REGISTERED OFFICE.
The address of the
registered office of the Corporation in the State of Delaware is 160 Greentree Drive, Suite 101, in the City of Dover, County of
Kent, 19904. The name of its registered agent at such address is National Registered Agents, Inc.
ARTICLE III:
PURPOSE.
The nature of the business
or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under
the General Corporation Law.
ARTICLE IV:
AUTHORIZED SHARES.
The total number of
shares of all classes of stock which the Corporation shall have authority to issue is (a) 20,000,000 shares of Common Stock, $0.0001
par value per share (“Common Stock”), and (b) 7,950,000 shares of Preferred Stock, $0.0001 par value
per share (“Preferred Stock”). The Preferred Stock may be issued from time to time in one or more series,
each of such series to consist of such number of shares and to have such terms, rights, powers and preferences, and the qualifications
and limitations with respect thereto, as stated or expressed herein. As of the effective date of this Amended and Restated Certificate
of Incorporation (this “Restated Certificate”), 2,500,000 shares of the authorized Preferred Stock of
the Corporation are hereby designated “Series Seed Preferred Stock”, 1,850,000 shares of the authorized
Preferred Stock of the Corporation are hereby designated “Series Seed-2 Preferred Stock”, and 3,600,000
shares of the authorized Preferred Stock of the Corporation are hereby designated “Series A Preferred Stock”.
The following is a statement of the designations and the rights, powers and privileges, and the qualifications, limitations or
restrictions thereof, in respect of each class of capital stock of the Corporation.
A. COMMON STOCK
1.
General. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified
by the rights, powers and privileges of the holders of the Preferred Stock set forth herein.
2.
Voting. The holders of the Common Stock are entitled to one vote for each share of Common Stock held at all meetings
of stockholders (and written actions in lieu of meetings). Unless required by law, there shall be no cumulative voting. The number
of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding)
by (in addition to any vote of the holders of one or more series of Preferred Stock that may be required by the terms of this Restated
Certificate) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes
represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law.
The following rights,
powers and privileges, and restrictions, qualifications and limitations, shall apply to the Preferred Stock. Unless otherwise indicated,
references to “Sections” in this Part B of this Article IV refer to sections of this Part B.
1.
Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.
1.1
Payments to Holders of Preferred Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation or any Deemed Liquidation Event (as defined below), before any payment shall be made to the holders of Common
Stock by reason of their ownership thereof, the holders of shares of Preferred Stock then outstanding shall be entitled to be paid
out of the funds and assets available for distribution to its stockholders, an amount per share equal to the greater of (a) the
Original Issue Price (as defined below) for such share of Preferred Stock, plus any dividends declared but unpaid thereon, or (b)
such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to
Section 3 immediately prior to such liquidation, dissolution or winding up or Deemed Liquidation Event. If upon any such
liquidation, dissolution or winding up or Deemed Liquidation Event of the Corporation, the funds and assets available for distribution
to the stockholders of the Corporation shall be insufficient to pay the holders of shares of Preferred Stock the full amount to
which they are entitled under this Section 1.1, the holders of shares of Preferred Stock shall share ratably in any distribution
of the funds and assets available for distribution in proportion to the respective amounts that would otherwise be payable in respect
of the shares of Preferred Stock held by them upon such distribution if all amounts payable on or with respect to such shares were
paid in full. The “Original Issue Price” shall mean (a) $0.88333 per share (as adjusted for any stock
split, stock dividend, recapitalization or otherwise) for each outstanding share of Series Seed Preferred Stock, (b) $2.1824 per
share (as adjusted for any stock split, stock dividend, recapitalization or otherwise) for each outstanding share of Series Seed-2
Preferred Stock, and (c) $3.2000 per share (as adjusted for any stock split, stock dividend, recapitalization or otherwise) for
each outstanding share of Series A Preferred Stock.
1.2
Payments to Holders of Common Stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up
or Deemed Liquidation Event of the Corporation, after the payment of all preferential amounts required to be paid to the holders
of shares of Preferred Stock as provided in Section 1.1, the remaining funds and assets available for distribution to the
stockholders of the Corporation shall be distributed among the holders of shares of Common Stock, pro rata based on the number
of shares of Common Stock held by each such holder.
1.3
Deemed Liquidation Events.
1.3.1
Definition. Each of the following events shall be considered a “Deemed Liquidation Event” unless
the holders of at least a majority of the outstanding shares of Preferred Stock (voting as a single class on an as-converted basis)
elect otherwise by written notice sent to the Corporation at least five (5) days prior to the effective date of any such event:
(a)
a merger or consolidation in which (i) the Corporation is a constituent party or (ii) a subsidiary of the Corporation is a constituent
party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation, except any such merger or
consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately
prior to such merger or consolidation continue to represent, or are converted into or exchanged for equity securities that represent,
immediately following such merger or consolidation, at least a majority, by voting power, of the equity securities of (1) the surviving
or resulting party or (2) if the surviving or resulting party is a wholly owned subsidiary of another party immediately following
such merger or consolidation, the parent of such surviving or resulting party; provided that, for the purpose of
this Section 1.3.1, all shares of Common Stock issuable upon exercise of Options (as defined below) outstanding immediately
prior to such merger or consolidation or upon conversion of Convertible Securities (as defined below) outstanding immediately prior
to such merger or consolidation shall be deemed to be outstanding immediately prior to such merger or consolidation and, if applicable,
deemed to be converted or exchanged in such merger or consolidation on the same terms as the actual outstanding shares of Common
Stock are converted or exchanged; or
(b)
the sale, lease, transfer or other disposition, in a single transaction or series of related transactions, by the Corporation or
any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole,
or, if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or
subsidiaries, the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Corporation, except where
such sale, lease, transfer or other disposition is to the Corporation or one or more wholly owned subsidiaries of the Corporation.
1.3.2
Amount Deemed Paid or Distributed. The funds and assets deemed paid or distributed to the holders of capital stock of the
Corporation upon any such merger, consolidation, sale, transfer or other disposition described in this Section 1.3 shall
be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring
person, firm or other entity. The value of such property, rights or securities shall be determined in good faith by the Board.
2.
Voting.
2.1
General. On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting
of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares
of Series Seed Preferred Stock and Series Seed-2 Preferred Stock shall be entitled to cast the number of votes equal to the number
of whole shares of Common Stock into which the shares of Preferred Stock held by such holder are convertible as of the record date
for determining stockholders entitled to vote on such matter. Fractional votes shall not be permitted and any fractional voting
rights available on an as-converted basis (after aggregating all shares into which shares of Preferred stock held by each holder
could be converted) shall be rounded to the nearest whole number (with one-half being rounded upward). Except as provided by law
or by the other provisions of this Restated Certificate, holders of Series Seed Preferred Stock and Series Seed-2 Preferred Stock
shall vote together with the holders of Common Stock as a single class on an as-converted basis, shall have full voting rights
and powers equal to the voting rights and powers of the holders of Common Stock, and shall be entitled, notwithstanding any provision
hereof, to notice of any stockholders’ meeting in accordance with the Bylaws of the Corporation. The Series A Preferred Stock
shall be non-voting.
2.2
Preferred Stock Protective Provisions. At any time when shares of Series Seed or Series Seed-2 Preferred Stock remain outstanding,
the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following
without (in addition to any other vote required by law or this Restated Certificate) the written consent or affirmative vote of
the holders of a majority of the aggregate then outstanding shares of Series Seed Preferred Stock and Series Seed-2 Preferred Stock,
voting together on an as-converted basis (a “Preferred Majority”), given in writing or by vote at a meeting,
consenting or voting (as the case may be) separately as a single class:
(a)
alter or change the rights, powers or privileges of the Preferred Stock set forth in the certificate of incorporation of the Corporation,
as then in effect, or otherwise amend this Restated Certificate in a manner that materially affects the rights, preferences or
privileges of the Preferred Stock;
(b)
increase or decrease the authorized number of shares of Common Stock or Preferred Stock (or any series thereof) or issue any additional
shares of Preferred Stock or Common Stock (other than under the Corporation’s 2006 Stock Plan (the “Plan”);
(c)
authorize, create or issue (by reclassification or otherwise) a new class or series of capital stock having rights, powers or privileges
set forth in this Restated Certificate, as then in effect, that are senior to or on a parity with any series of Preferred Stock;
(d)
increase the number of shares reserved for issuance to employees and consultants of the Corporation under the Plan;
(e)
redeem or repurchase any shares of Common Stock or Preferred Stock (other than pursuant to employee or consultant agreements giving
the Corporation the right to repurchase shares at the original cost thereof upon the termination of services);
(f)
declare or pay any dividend or otherwise make a distribution to holders of Preferred Stock or Common Stock;
(g)
increase or decrease the number of authorized directors of the Corporation;
(h)
liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any Deemed Liquidation Event, or consent, agree
or commit to any of the foregoing without conditioning such consent, agreement or commitment upon obtaining the approval required
by this Section 2.2;
(i)
otherwise amend, alter or repeal any provision of this Restated Certificate or the Bylaws of the Corporation;
(j)
materially change the nature of the business or operations of the Company;
(k)
appoint or remove the auditors of the Company or change the Company’s fiscal year-end;
(l)
create or liquidate or dissolve a subsidiary or subscribe or otherwise acquire or dispose of any shares in the capital of any other
company; or
(m)
permit any subsidiary to do any of the foregoing.
3.
Conversion. The holders of the Preferred Stock shall have conversion rights as follows (the “Conversion
Rights”):
3.1
Right to Convert.
3.1.1
Conversion Ratio. Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time,
and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares
of Common Stock as is determined by dividing the Original Issue Price for such share of Preferred Stock by the Conversion Price
(as defined below) for such share of Preferred Stock in effect at the time of conversion. The “Conversion Price”
for each share of Preferred Stock shall initially mean the Original Issue Price for such share of Preferred Stock. Such initial
Conversion Price, and the rate at which shares of Preferred Stock may be converted into shares of Common Stock, shall be subject
to adjustment as provided below.
3.1.2
Termination of Conversion Rights. Subject to Section 3.3.1 in the case of a Contingency Event (as defined therein),
in the event of a liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation Event, the Conversion Rights
shall terminate at the close of business on the last full day preceding the date fixed for the first payment of any funds and assets
distributable on such event to the holders of Preferred Stock.
3.2
Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Preferred Stock. In lieu
of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction
multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board. Whether or not fractional
shares would be issuable upon such conversion shall be determined on the basis of the total number of shares of Preferred Stock
the holder is at the time converting into Common Stock and the aggregate number of shares of Common Stock issuable upon such conversion.
3.3
Mechanics of Conversion.
3.3.1
Notice of Conversion. In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock into shares
of Common Stock, such holder shall surrender the certificate or certificates for such shares of Preferred Stock (or, if such registered
holder alleges that any such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably
acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account
of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Preferred Stock (or
at the principal office of the Corporation if the Corporation serves as its own transfer agent), together with written notice that
such holder elects to convert all or any number of the shares of the Preferred Stock represented by such certificate or certificates
and, if applicable, any event on which such conversion is contingent (a “Contingency Event”). Such notice
shall state such holder’s name or the names of the nominees in which such holder wishes the certificate or certificates for
shares of Common Stock to be issued. If required by the Corporation, certificates surrendered for conversion shall be endorsed
or accompanied by a written instrument or instruments of transfer, in form reasonably satisfactory to the Corporation, duly executed
by the registered holder or such holder’s attorney duly authorized in writing. The close of business on the date of receipt
by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of such certificates (or lost
certificate affidavit and agreement) and notice (or, if later, the date on which all Contingency Events have occurred) shall be
the time of conversion (the “Conversion Time”), and the shares of Common Stock issuable upon conversion
of the shares represented by such certificate shall be deemed to be outstanding of record as of such time. The Corporation shall,
as soon as practicable after the Conversion Time, (a) issue and deliver to such holder of Preferred Stock, or to such holder’s
nominees, a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion in accordance
with the provisions hereof and a certificate for the number (if any) of the shares of Preferred Stock represented by the surrendered
certificate that were not converted into Common Stock, (b) pay in cash such amount as provided in Section 3.2 in lieu of
any fraction of a share of Common Stock otherwise issuable upon such conversion and (c) pay all declared but unpaid dividends on
the shares of Preferred Stock converted.
3.3.2
Reservation of Shares. The Corporation shall at all times while any share of Preferred Stock shall be outstanding, reserve
and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Preferred
Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then-outstanding shares of the Preferred Stock, the Corporation shall use its best efforts
to cause such corporate action to be taken as may be necessary to increase its authorized but unissued shares of Common Stock to
such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain
the requisite stockholder approval of any necessary amendment to this Restated Certificate. Before taking any action that would
cause an adjustment reducing the Conversion Price of a series of Preferred Stock below the then par value of the shares of Common
Stock issuable upon conversion of such series of Preferred Stock, the Corporation will take any corporate action that may, in the
opinion of its counsel, be necessary so that the Corporation may validly and legally issue fully paid and nonassessable shares
of Common Stock at such adjusted Conversion Price.
3.3.3
Effect of Conversion. All shares of Preferred Stock that shall have been surrendered for conversion as herein provided shall
no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion
Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor, to receive payment in
lieu of any fraction of a share otherwise issuable upon such conversion as provided in Section 3.2 and to receive payment
of any dividends declared but unpaid thereon. Any shares of Preferred Stock so converted shall be retired and cancelled and may
not be reissued.
3.3.4
No Further Adjustment. Upon any conversion of shares of Preferred Stock, no adjustment to the Conversion Price of the applicable
series of Preferred Stock shall be made with respect to the converted shares for any declared but unpaid dividends on such series
of Preferred Stock or on the Common Stock delivered upon conversion.
3.4
Adjustment for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the date on
which the first share of a series of Preferred Stock is issued by the Corporation (such date referred to herein as the “Original
Issue Date” for such series of Preferred Stock) effect a subdivision of the outstanding Common Stock, the Conversion
Price for such series of Preferred Stock in effect immediately before that subdivision shall be proportionately decreased so that
the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such
increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time
after the Original Issue Date for a series of Preferred Stock combine the outstanding shares of Common Stock, the Conversion Price
for such series of Preferred Stock in effect immediately before the combination shall be proportionately increased so that the
number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease
in the aggregate number of shares of Common Stock outstanding. Any adjustment under this Section 3.4 shall become effective
at the close of business on the date the subdivision or combination becomes effective.
3.5
Adjustment for Certain Dividends and Distributions. In the event the Corporation at any time or from time to time after
the Original Issue Date for a series of Preferred Stock shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common
Stock, then and in each such event the Conversion Price for such series of Preferred Stock in effect immediately before such event
shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of
business on such record date, by multiplying such Conversion Price then in effect by a fraction:
(a) the
numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date, and
(b) the
denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such
dividend or distribution.
Notwithstanding the foregoing, (i) if such
record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed
therefor, such Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter
such Conversion Price shall be adjusted pursuant to this Section 3.5 as of the time of actual payment of such dividends
or distributions; and (ii) no such adjustment shall be made if the holders of such series of Preferred Stock simultaneously receive
a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock that they
would have received if all outstanding shares of such series of Preferred Stock had been converted into Common Stock on the date
of such event.
3.6
Adjustments for Other Dividends and Distributions. In the event the Corporation at any time or from time to time after the
Original Issue Date for a series of Preferred Stock shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a distribution
of shares of Common Stock in respect of outstanding shares of Common Stock), then and in each such event the holders of such series
of Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution
of such securities in an amount equal to the amount of such securities as they would have received if all outstanding shares of
such series of Preferred Stock had been converted into Common Stock on the date of such event.
3.7
Adjustment for Reclassification, Exchange and Substitution. If at any time or from time to time after the Original Issue
Date for a series of Preferred Stock the Common Stock issuable upon the conversion of such series of Preferred Stock is changed
into the same or a different number of shares of any class or classes of stock of the Corporation, whether by recapitalization,
reclassification or otherwise (other than by a stock split or combination, dividend, distribution, merger or consolidation
covered by Sections 3.4, 3.5, 3.6 or 3.8 or by Section 1.3 regarding a Deemed Liquidation Event), then in
any such event each holder of such series of Preferred Stock shall have the right thereafter to convert such stock into the kind
and amount of stock and other securities and property receivable upon such recapitalization, reclassification or other change by
holders of the number of shares of Common Stock into which such shares of Preferred Stock could have been converted immediately
prior to such recapitalization, reclassification or change.
3.8
Adjustment for Merger or Consolidation. Subject to the provisions of Section 1.3, if there shall occur any consolidation
or merger involving the Corporation in which the Common Stock (but not a series of Preferred Stock) is converted into or exchanged
for securities, cash or other property (other than a transaction covered by Sections 3.5, 3.6 or 3.7), then, following
any such consolidation or merger, provision shall be made that each share of such series of Preferred Stock shall thereafter be
convertible, in lieu of the Common Stock into which it was convertible prior to such event, into the kind and amount of securities,
cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one
share of such series of Preferred Stock immediately prior to such consolidation or merger would have been entitled to receive pursuant
to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the
application of the provisions in this Section 3 with respect to the rights and interests thereafter of the holders of such
series of Preferred Stock, to the end that the provisions set forth in this Section 3 (including provisions with respect
to changes in and other adjustments of the Conversion Price of such series of Preferred Stock) shall thereafter be applicable,
as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of such
series of Preferred Stock.
3.9
Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Price of a series
of Preferred Stock pursuant to this Section 3, the Corporation at its expense shall, as promptly as reasonably practicable
but in any event not later than 15 days thereafter, compute such adjustment or readjustment in accordance with the terms hereof
and furnish to each holder of such series of Preferred Stock a certificate setting forth such adjustment or readjustment (including
the kind and amount of securities, cash or other property into which such series of Preferred Stock is convertible) and showing
in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable
after the written request at any time of any holder of any series of Preferred Stock (but in any event not later than 10 days thereafter),
furnish or cause to be furnished to such holder a certificate setting forth (a) the Conversion Price of such series of Preferred
Stock then in effect and (b) the number of shares of Common Stock and the amount, if any, of other securities, cash or property
which then would be received upon the conversion of such series of Preferred Stock.
3.10
Mandatory Conversion. Upon either (a) the closing of the sale of shares of Common Stock to the public in a firm-commitment
underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended or (b)
the date and time, or the occurrence of an event, specified by vote or written consent of the holders of at least a majority of
the aggregate outstanding shares of Series Seed Preferred Stock and Series Seed-2 Preferred Stock at the time of such vote or consent,
voting as a single class on an as-converted basis (the time of such closing or the date and time specified or the time of the event
specified in such vote or written consent is referred to herein as the “Mandatory Conversion Time”),
(i) all outstanding shares of Preferred Stock shall automatically be converted into shares of Common Stock, at the applicable ratio
described in Section 3.1.1 as the same may be adjusted from time to time in accordance with Section 3 and (ii) such
shares may not be reissued by the Corporation.
3.11
Procedural Requirements. All holders of record of shares of Preferred Stock shall be sent written notice of the Mandatory
Conversion Time and the place designated for mandatory conversion of all such shares of Preferred Stock pursuant to Section
3.10. Unless otherwise provided in this Restated Certificate, such notice need not be sent in advance of the occurrence of
the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Preferred Stock shall surrender such holder’s
certificate or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed,
a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim
that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation
at the place designated in such notice, and shall thereafter receive certificates of the number of shares of Common Stock to which
such holder is entitled pursuant to this Section 3. If so required by the Corporation, certificates surrendered for conversion
shall be endorsed or accompanied by written instrument or instruments of transfer, in form reasonably satisfactory to the Corporation,
duly executed by the registered holder or such holder’s attorney duly authorized in writing. All rights with respect to the
Preferred Stock converted pursuant to Section 3.10, including the rights, if any, to receive notices and vote (other
than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or
holders thereof to surrender the certificates at or prior to such time), except only the rights of the holders thereof, upon surrender
of their certificate or certificates (or lost certificate affidavit and agreement) therefor, to receive the items provided for
in the next sentence of this Section 3.11. As soon as practicable after the Mandatory Conversion Time and the surrender
of the certificate or certificates (or lost certificate affidavit and agreement) for Preferred Stock, the Corporation shall issue
and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common
Stock issuable on such conversion in accordance with the provisions hereof, together with cash as provided in Section 3.2
in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but
unpaid dividends on the shares of Preferred Stock converted. Such converted Preferred Stock shall be retired and cancelled and
may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need
for stockholder action) as may be necessary to reduce the authorized number of shares of Preferred Stock (and the applicable series
thereof) accordingly.
4.
Dividends. Dividends shall be paid when, as and if declared by the Board of Directors of the Corporation. Any dividends
shall be declared pro rata on the Common Stock and the Preferred Stock on a pari passu basis according to the number of shares
of Common Stock held by such holders. For this purpose each holder of shares of Preferred Stock is to be treated as holding the
greatest whole number of shares of Common Stock then issuable upon conversion of all shares of Preferred Stock held by such holder
pursuant to Section 3.
5.
Redeemed or Otherwise Acquired Shares. Any shares of Preferred Stock that
are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately cancelled
and retired and shall not be reissued, sold or transferred. Neither the Corporation nor any of its subsidiaries may exercise any
voting or other rights granted to the holders of Preferred Stock following redemption.
6.
Waiver. Any of the rights, powers, privileges and other terms of the Preferred Stock set forth herein may be waived
on behalf of all holders of Preferred Stock by the affirmative written consent or vote of the holders of at least a majority of
the shares of Preferred Stock then outstanding, treating any convertible Preferred Stock as if converted to Common Stock.
7.
Notice of Record Date. In the event:
(a) the
Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon
conversion of the Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution,
or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive
any other security; or
(b) of
any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation
Event; or
(c) of
the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,
then, and in each such
case, the Corporation will send or cause to be sent to the holders of the Preferred Stock a notice specifying, as the case may
be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or
right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of
Common Stock (or such other capital stock or securities at the time issuable upon the conversion of the Preferred Stock) shall
be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up,
and the amount per share and character of such exchange applicable to the Preferred Stock and the Common Stock. Such notice shall
be sent at least 20 days prior to the earlier of the record date or effective date for the event specified in such notice.
8.
Notices. Except as otherwise provided herein, any notice required or
permitted by the provisions of this Article IV to be given to a holder of shares of Preferred Stock shall be mailed, postage
prepaid, to the post office address last shown on the records of the Corporation, or, in the case of stockholders resident
outside of the United States, shall be sent by an internationally recognized overnight courier service or given by electronic
communication in compliance with the provisions of the General Corporation Law, and shall be deemed sent upon such mailing,
sending or electronic transmission.
ARTICLE V: PREEMPTIVE RIGHTS.
No stockholder of the
Corporation shall have a right to purchase shares of capital stock of the Corporation sold or issued by the Corporation except
to the extent that such a right may from time to time be set forth in a written agreement between the Corporation and any stockholder.
ARTICLE VI:
STOCK REPURCHASES.
In connection with
repurchases by the Corporation of its Common Stock from employees, officers, directors, advisors, consultants or other persons
performing services for the Corporation or any subsidiary pursuant to agreements under which the Corporation has the option to
repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment, Sections 502 and 503
of the Corporations Code of the State of California shall not apply in all or in part with respect to such repurchases.
ARTICLE VII:
BYLAW PROVISIONS.
A.
AMENDMENT OF
BYLAWS. Subject to any additional vote required by this Restated Certificate or Bylaws, in furtherance and not in limitation
of the powers conferred by statute, the Board is expressly authorized to make, repeal, alter, amend and rescind any or all of the
Bylaws of the Corporation.
B. NUMBER OF DIRECTORS.
Subject to any additional vote required by this Restated Certificate, the number of directors of the Corporation shall be determined
in the manner set forth in the Bylaws of the Corporation.
C.
BALLOT. Elections
of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
D. MEETINGS AND
BOOKS. Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide.
The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to
time by the Board or in the Bylaws of the Corporation.
ARTICLE VIII:
DIRECTOR LIABILITY.
A.
LIMITATION.
To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law or any other law of
the State of Delaware is amended after approval by the stockholders of this Article VIII to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated
or limited to the fullest extent permitted by the General Corporation Law as so amended. Any repeal or modification of the foregoing
provisions of this Article VIII by the stockholders of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect
to any acts or omissions of such director occurring prior to, such repeal or modification.
B.
INDEMNIFICATION.
To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement
of expenses to) directors, officers and agents of the Corporation (and any other persons to which General Corporation Law permits
the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of
the General Corporation Law.
C.
MODIFICATION.
Any amendment, repeal or modification of the foregoing provisions of this Article VIII shall not adversely affect any right
or protection of any director, officer or other agent of the Corporation existing at the time of such amendment, repeal or modification.
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