Attached files
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S-1/A - FORM S-1/A - IronPlanet Inc. | f58854a4sv1za.htm |
EX-10.2 - EXHIBIT 10.2 - IronPlanet Inc. | f58854a4exv10w2.htm |
EX-23.1 - EXHIBIT 23.1 - IronPlanet Inc. | f58854a4exv23w1.htm |
EX-10.16 - EXHIBIT 10.16 - IronPlanet Inc. | f58854a4exv10w16.htm |
EX-10.14 - EXHIBIT 10.14 - IronPlanet Inc. | f58854a4exv10w14.htm |
EX-10.15 - EXHIBIT 10.15 - IronPlanet Inc. | f58854a4exv10w15.htm |
Exhibit 3.3
SEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IRONPLANET, INC.
CERTIFICATE OF INCORPORATION
OF
IRONPLANET, INC.
IronPlanet, Inc. (the Corporation), a corporation organized and existing under and
by virtue of the provisions of the General Corporation Law of the State of Delaware (the
DGCL), hereby certifies that:
FIRST. The name under which the Corporation was originally incorporated is Federal Sales Corp.
SECOND. The Certificate of Incorporation was originally filed with the Secretary of State of
the State of Delaware on January 6, 1999. The Certificate of Incorporation of the Corporation as
heretofore amended is hereby amended and restated pursuant to Sections 228, 242 and 245 of the
DGCL. All amendments to the Certificate of Incorporation reflected herein (this Restated
Certificate) have been duly adopted by the Board of Directors and stockholders of the
Corporation in accordance with the provisions of such Sections. As required by Section 228 of the
DGCL, the Corporation has given written notice of the amendments reflected herein to all
stockholders who did not consent in writing to these amendments.
THIRD. The Certificate of Incorporation of the Corporation shall be amended and restated to
read in full as follows:
ARTICLE I
The name of this Corporation is IronPlanet, Inc.
ARTICLE II
The address of the Corporations registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Prentice-Hall Corporation System.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
ARTICLE IV
(A) The Corporation is authorized to issue two classes of stock to be designated,
respectively, Common Stock and Preferred Stock. The total number of shares
which the Corporation is authorized to issue is 105,000,000 shares, consisting of 100,000,000
shares of Common Stock, par value $0.001 per share, and 5,000,000 shares of Preferred Stock, par
value $0.001 per share.
(B) The Board of Directors is authorized, subject to any limitations prescribed by law, to
provide for the issuance of shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware (such certificate being hereinafter
referred to as a Preferred Stock Designation), to establish from time to time the number
of shares to be included in each such series, and to fix the designation, powers, preferences, and
rights of the shares of each such series and any qualifications, limitations or restrictions
thereof. The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of all of the then-outstanding shares of capital stock of the
Corporation entitled to vote thereon, without a vote of the holders of the Preferred Stock, or of
any series thereof, unless a vote of any such holders is required pursuant to the terms of any
Preferred Stock Designation.
(C) Unless a vote of any such holders is required pursuant to the terms of any Preferred Stock
Designation or the resolution originally fixing the number of shares of any such series, the Board
of Directors is further authorized to increase (but not above the total number of authorized shares
of the class) or decrease (but not below the number of shares of any such series then outstanding)
the number of shares of any series, the number of which was fixed by it, subsequent to the issuance
of shares of such series then outstanding, by filing a certificate pursuant to the applicable law
of the State of Delaware. If the number of shares of any series is so decreased, then the shares
so specified in the certificate shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
(D) Except as otherwise provided by law, each outstanding share of Common Stock shall entitle
the holder thereof to one vote on each matter properly submitted to the stockholders of the
Corporation for their vote; provided, however, except as otherwise required by law, holders of
Common Stock shall not be entitled to vote on any amendment to this Restated Certificate (including
any Preferred Stock Designation relating to any series of Preferred Stock) that relates solely to
the terms of one or more outstanding series of Preferred Stock if the holders of such affected
series are entitled, either separately or together as a class with the holders of one or more other
such series, to vote thereon pursuant to this Restated Certificate (including any Preferred Stock
Designation relating to any series of Preferred Stock).
ARTICLE V
(A) The business and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors. In addition to the powers and authority expressly conferred upon them by
statute or by this Restated Certificate or the Bylaws of the Corporation (the Bylaws),
the directors are hereby empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation.
(B) Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the number of directors of the Corporation shall be fixed
from time to time exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board. For the purposes of this Restated Certificate, Whole Board
shall mean the total number of authorized directors whether or not there exist any vacancies in
previously authorized directorships.
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ARTICLE VI
(A) The Board shall be divided into three (3) classes, Class I, Class II and Class III. The
Board is authorized to assign members of the Board already in office to Class I, Class II or Class
III. Each director shall serve for a term expiring at the third annual meeting following his or
her election; provided, that, with respect to the directors serving in the inaugural classes of
Class I, Class II and Class III, the terms of the directors serving in Class I shall expire at the
Corporations first annual meeting of stockholders held after the effectiveness of the division of
the Board into three (3) classes; the terms of the directors serving in Class II shall expire at
the Corporations second annual meeting of stockholders held after such effectiveness; and the
terms of the directors serving in Class III shall expire at the Corporations third annual meeting
of stockholders held after such effectiveness. Each director shall serve until his or her
successor is duly elected and qualified or until his or her death, resignation or removal.
(B) Subject to the rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized number of directors or
any vacancies in the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall, unless otherwise required by law or by
resolution of the Board of Directors, be filled only by a majority vote of the directors then in
office, though less than a quorum (and not by the stockholders), and directors so chosen shall
serve for a term expiring at the annual meeting of stockholders at which the term of office of the
class to which they have been elected expires or until such directors successor shall have been
duly elected and qualified. No decrease in the number of authorized directors shall shorten the
term of any incumbent director.
(C) Subject to the rights of the holders of any series of Preferred Stock then outstanding,
any director, or the entire Board of Directors, may be removed from office at any time, but only
for cause and only by the affirmative vote of the holders of a majority of the shares then entitled
to vote at an election of directors, voting together as a single class.
ARTICLE VII
In the election of directors, each holder of shares of any class or series of capital stock of
the Corporation shall be entitled to one vote for each share held. No stockholder will be
permitted to cumulate votes at any election of directors.
ARTICLE VIII
Subject to the rights of the holders of any series of Preferred Stock, no action shall be
taken by the stockholders of the Corporation other than at an annual or special meeting of the
stockholders, upon due notice and in accordance with the provisions of the Bylaws, and no action
shall be taken by the stockholders by written consent.
ARTICLE IX
(A) Notwithstanding any other provision of the Bylaws or any provision of law which might
otherwise permit a lesser or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the capital stock of the Corporation required by law, the Bylaws or
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any Preferred Stock Designation, the Bylaws may be altered, amended or repealed or new Bylaws
adopted by the affirmative vote of the holders of at least sixty-six and two-thirds percent (662/3)%
of the voting power of all of the then-outstanding shares of the voting stock of the Corporation
entitled to vote, voting together as a single class. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal Bylaws.
(B) The directors of the Corporation need not be elected by written ballot unless the Bylaws
so provide.
(C) Special meetings of the stockholders of the Corporation may be called, at any time by the
Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board, and
special meetings may not be called by other person or persons.
(D) Advance notice of stockholder nominations for the election of directors or of business to
be brought by the stockholders before any meeting of the stockholders of the Corporation shall be
given in the manner provided in the Bylaws.
ARTICLE X
Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws
may provide. The books of the Corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE XI
(A) To the fullest extent permitted by the DGCL, as the same exists or may be amended from
time to time, 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 DGCL is
hereafter amended to authorize corporate action further eliminating or limiting the personal
liability of a corporations directors, then the liability of a director of the Corporation shall
be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
(B) Any repeal or modification of the foregoing provisions of this Article XIII shall not
adversely affect any right or protection of a director of the Corporation with respect to any acts
or omissions of such director occurring prior to such repeal or modification.
ARTICLE XII
The Corporation shall have the power to indemnify and/or advance expenses to any person to the
fullest extent permitted by law.
ARTICLE XIII
Unless the Corporation consents in writing to the selection of an alternative forum, the Court
of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative
action or proceeding brought on behalf of the Corporation; (ii) any action or
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proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or
other employee of the Corporation to the Corporation or the Corporations stockholders; (iii) any
action or proceeding asserting a claim against the Corporation arising pursuant to any provision of
the DGCL or the Restated Certificate or the Bylaws of the Corporation; or (iv) any action or
proceeding asserting a claim against the Corporation governed by the internal affairs doctrine. Any
person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the
Corporation shall be deemed to have notice of and to have consented to the provisions of this
Article IX.
ARTICLE XIV
If any provision of this Restated Certificate becomes or is declared on any ground by a court
of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such
provision in its entirety, to the extent necessary, shall be severed from this Restated
Certificate, and the court will replace such illegal, void or unenforceable provision of this
Restated Certificate with a valid and enforceable provision that most accurately reflects the
Corporations intent, in order to achieve, to the maximum extent possible, the same economic,
business and other purposes of the illegal, void or unenforceable provision. The balance of this
Restated Certificate shall be enforceable in accordance with its terms.
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Restated Certificate, in the manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this reservation.
***
The foregoing Seventh Amended and Restated Certificate of Incorporation has been duly adopted
by the Corporations Board of Directors and stockholders in accordance with the applicable
provisions of Section 228, 242 and 245 of the DGCL.
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IN WITNESS WHEREOF, this Seventh Amended and Restated Certificate of Incorporation has been
executed by its duly authorized officer this __ day of __________, 2011.
IronPlanet, Inc. |
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By: | ||||
Name: | ||||
Title: | ||||
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