Exhibit 3.3
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
ADEX MEDIA, INC.
Adex Media, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies that, pursuant to authority conferred upon the Board of Directors of the Corporation by the Certificate of Incorporation, as amended, of the Corporation, and pursuant to Section 151 of the DGCL, the Board of Directors of the Corporation, has duly adopted the following resolution:
RESOLVED, that the Board of Directors, pursuant to authority expressly vested in it by the provisions of the First Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”), hereby designates a series of preferred stock as Series A Preferred Stock, par value $0.0001 (the “Series A Preferred Stock”), authorizes the Corporation to issue up to Four Million (4,000,000) shares of Series A Preferred Stock, and fixes the relative rights, powers, preferences, limitations, qualifications and restrictions of the Series A Preferred Stock as follows:
(1) Dividends. Holders of shares of Series A Preferred Stock shall be entitled to receive dividends only when, as and if declared by the Board of Directors of the Corporation.
(2) Voting Rights. 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 the stockholders in lieu of a meeting), each Holder of outstanding shares of Series A Preferred Stock shall be entitled to cast one vote for each share of Series A Preferred Stock held by such Holder as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of the Certificate of Incorporation, Holders of Series A Preferred Stock shall vote together with holders of the Common Stock of the Corporation, $0.0001 par value (the “Common Stock”), as a single class.
(3) Liquidation, Dissolution, Winding-Up.
(a) Payments to Holders of Series A Preferred Stock. In the event of any Liquidation Event, the Holders of shares of Series A Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to the greater of (i) $1.20 per share, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of Series A Preferred Stock been converted into Common Stock pursuant to Section 4 below immediately prior to such Liquidation Event. If upon any such Liquidation Event the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the Holders of shares of Series A Preferred Stock the full amount to which they shall be entitled under this Section 3(a), the Holders of shares of Series A Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full. “Liquidation Event” means any termination, liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary.
(b) Payments to Holders of Common Stock. Upon any Liquidation Event, after the payment of all preferential amounts required to be paid to the Holders of shares of Series A Preferred Stock, the remaining assets of the Corporation available for distribution to its stockholders shall be distributed among the holders of shares of Common Stock, pro rata based on the number of shares held by each such holder.
(4) Conversion Right.
(a) Voluntary Conversion. At any time after the date that a Holder purchases shares of Series A Preferred Stock, such Holder may, at its election, convert each share of Series A Preferred Stock into that number of fully paid and nonassessable shares of Common Stock (or such other equity security of the Corporation for which all of its Common Stock has been exchanged or into which all of its Common Stock has been converted) equal to (i) the Series A Original Purchase Price, divided by (ii) the Conversion Price, subject to adjustments as set forth in this Section 4.
(b) Automatic Conversion. Ten trading days after delivery to the Holders of written notice of conversion by the Corporation (the “Corporation’s Notice”), each share of Series A Preferred Stock then outstanding shall, by virtue of such conditions and without any action on the part of a Holder thereof, be deemed automatically converted into one fully paid and nonassessable share of Common Stock (or such other equity security of the Corporation for which all of its Common Stock has been exchanged or into which all of its Common Stock has been converted), provided that the volume-weighted average closing price of the Corporation’s Common Stock over the ten trading days immediately preceding the date of the Corporation’s Notice is at least $1.80 per share.
(c) Mechanics of Conversion. If a Holder of Series A Preferred Stock desires to convert its Series A Preferred Stock, such Holder shall deliver to the Corporation’s Chief Financial Officer written notice expressly to that effect and duly executed by or on behalf of the Holder (a “Conversion Notice”). The date that the Corporation’s Chief Financial Officer actually receives a Conversion Notice shall be deemed to be the conversion date, unless the Holder of Series A Preferred Stock and the Corporation expressly agree to another such date in writing. From and after such conversion date, and assuming rightful and due delivery of a Conversion Notice, the Holder’s shares of Series A Preferred Stock shall represent and be enforceable only as the right to receive the shares of Common Stock or other securities issuable in accordance with this Section 4. Promptly after its receipt of a Conversion Notice, the Corporation shall issue and deliver to such Holder, but only against delivery of and only after receiving the certificates issued to Holder representing the Holder’s shares of Series A Preferred Stock, one or more certificates representing shares of Common Stock issued and registered in the name of such Holder. Thereupon, the Corporation shall have no further obligation to the Holder under or based on the Series A Preferred Stock. Upon any increase or decrease in the number of issued shares of Common Stock resulting from the splitting or consolidation of such shares or the payment of a stock dividend, the number of shares of Common Stock issuable upon conversion of shares of Series A Preferred Stock shall be proportionately adjusted so that the Holder of shares of Series A Preferred Stock surrendered for conversion after the record date of such split, consolidation or dividend shall be entitled to receive the number of shares of Common Stock which such Holder would have been entitled to receive had such Series A Preferred Stock been converted immediately prior to such date.
(d) Restrictions on Conversion. Notwithstanding anything to the contrary in this Certificate of Designations, no shares of a Holder’s Series A Preferred Stock shall convert to the extent that such Holder’s beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of Common Stock after such conversion would exceed 4.99% of the total Common Stock outstanding (the “Conversion Threshold”). The number of shares of Common Stock issuable upon any voluntary or automatic conversion of Series A Preferred Stock that would otherwise result in a Holder’s beneficial ownership exceeding the Conversion Threshold shall be reduced, as to such Holder, to the extent necessary to reduce such Holder’s resulting beneficial ownership of Common Stock to the Conversion Threshold.
(e) Price Adjustment Upon Dilutive Issuances.
(i) For so long as any shares of Series A Preferred Stock remain outstanding after the Series A Original Issue Date and the shares of Common Stock underlying such shares of Series A Preferred Stock are not eligible to be sold pursuant to Rule 144, if the Corporation closes on the sale or issuance of (A) Common Stock at a price, or (B) any securities convertible into or exchangeable for, directly or indirectly, Common Stock (“Convertible Securities”), or any rights or warrants or options to purchase any such Common Stock or Convertible Securities (collectively, the “Additional Issuances”) with an exercise price or conversion price, which is less than the then current Conversion Price, then the Conversion Price shall be reduced concurrently with such issue or sale, according to the following formula (calculated to the nearest one-hundredth of a cent):
CP2 = CP1 × (A + B) ÷ (A + C).
For purposes of the foregoing formula, the following definitions shall apply:
(A) “CP2” means the Series A Conversion Price in effect immediately after such Additional Issuances;
(B) “CP1” means the Series A Conversion Price in effect immediately prior to such Additional Issuances;
(C) “A” means the number of shares of Common Stock outstanding immediately prior to such Additional Issuances (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of options outstanding immediately prior to such issue or upon conversion or exchange of Convertible Securities (including the Series A Preferred Stock, using CP1 as the conversion price for this purpose) outstanding (assuming exercise of any outstanding options therefor) immediately prior to such issue);
(D) “B” means the number of shares of Common Stock that would have been issued if such Additional Issuances had been issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP1); and
(E) “C” means the number of Additional Issuances issued in such transaction.
(ii) Notwithstanding anything to the contrary set forth in Section 4(e)(i), no adjustment shall be made to the Conversion Price with regard to (a) securities issued (other than for cash) in connection with a strategic merger, acquisition, consolidation, licensing or partnering agreement, the primary purpose of which, as reasonably determined by the Corporation’s Board of Directors, is not to raise additional capital; (b) securities issued pursuant to a bona fide firm underwritten public offering of the Corporation’s securities yielding gross proceeds to the Corporation of not less than $20,000,000; (c) Common Stock issued and grants of options to purchase Common Stock pursuant to an equity compensation plan approved by the Corporation’s Board of Directors; (d) securities issued pursuant to the conversion or exercise of convertible or exercisable securities issued or outstanding on the Series A Original Issue Date, issued pursuant to the Securities Purchase Agreement; and (e) any warrants, shares of Common Stock or other securities issued to a placement agent and its designees for the transactions contemplated by the Securities Purchase Agreement.
(5) Lost or Stolen Certificates. Upon receipt by the Corporation of evidence reasonably satisfactory to the Corporation of the loss, theft, destruction or mutilation of any certificates representing shares of Series A Preferred Stock, and, in the case of loss, theft or destruction, of an indemnification undertaking by the Holder thereof to the Corporation in customary form and, in the case of mutilation, upon surrender and cancellation of the certificate(s), the Corporation shall execute and deliver new certificate(s) of like tenor and amount.
(6) Notice. Any notice required or permitted to be given to a Holder under this Certificate of Designations shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic communication in compliance with the provisions of the DGCL, and shall be deemed sent upon such mailing or electronic transmission.
(7) Preferred Share Register. The Corporation and/or its transfer agent may treat the Person in whose name any share of Series A Preferred Stock is registered on the register of the Corporation as the owner and holder of such shares of Series A Preferred Stock for all purposes, notwithstanding any notice to the contrary, but in all events recognizing any properly made transfers.
(8) Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the Series A Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Series A 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 Series A Preferred Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate of Designation.
(9) Fractional Shares. No fractional share shall be issued upon the conversion of any share or shares of Series A Preferred Stock. All shares of Common Stock (including fractions thereof) issuable upon conversion of more than one share of Series A Preferred Stock by a Holder shall 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 a fraction of a share of Common Stock, the Corporation shall, in lieu of issuing any fractional share, round such fractional share up to the next whole share of Common Stock and issue such whole share of Common Stock to the Holder upon such conversion.
(10) No Other Rights. Shares of Series A Preferred Stock (a) shall not have any rights of preemption as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted; (b) shall not be redeemable; and (c) shall not have any other rights, preferences, privileges or voting powers or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, not set forth herein or in the Certificate of Incorporation, as amended, or as provided by applicable law.
(11) Certain Defined Terms. For purposes of this Certificate of Designations, the following terms shall have the following meanings:
(a) “Certificate of Designations” means this Certificate of Designations, Preferences and Rights of Series A Preferred Stock of Adex Media, Inc.
(b) “Conversion Price” initially means $1.20 per share of Series A Preferred Stock, subject to adjustments set forth in Section 4.
(c) “Holder” means any record holder of Series A Preferred Stock as shall appear on the stock register of the Corporation.
(e) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.
(f) “Securities Purchase Agreement” means that certain Series A Convertible Preferred Stock and Warrant Purchase Agreement by and among the Corporation and the initial Holders, as such agreement may be amended from time to time as provided in such agreement.
(g) “Series A Original Issue Date” means the date on which the first share of Series A Preferred Stock was issued to any Holder pursuant to the Securities Purchase Agreement.
(h) “Series A Original Purchase Price” means $1.20 per share of Series A Preferred Stock.
(i) “Subsidiary” means any Person in which the Corporation, directly or indirectly, has at least a majority ownership interest or majority voting power.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be duly executed by Scott Rewick, its President and Chief Executive Officer, as of the 8th day of June, 2009
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| ADEX MEDIA, INC. |
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| By: | | |
| | | Scott Rewick, President and Chief Executive Officer |
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