Attached files
file | filename |
---|---|
8-K - CURRENT REPORT - AutoWeb, Inc. | auto8k_june182020.htm |
Exhibit
3.1
STATE OF DELAWARE
SEVENTH AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION
OF
AUTOWEB, INC.
AutoWeb, Inc., a
corporation organized and existing under the General Corporation
Law of the State of Delaware (“Corporation”), hereby certifies
that:
1. The
present name of the Corporation is AutoWeb, Inc. The
Corporation’s original Certificate of Incorporation was filed
with the Secretary of State of the State of Delaware on May 17,
1996 under the name “Auto-By-Tel
Corporation.”
2. This
Seventh Amended and Restated Certificate of Incorporation, which
restates and integrates and also further amends the provisions of
the Corporation's Certificate of Incorporation, as amended and
restated, was duly adopted in accordance with Section 245 of the
General Corporation Law of the State of Delaware.
3. The
text of the Seventh Amended and Restated Certificate of
Incorporation is set forth on Exhibit
“A” attached hereto and incorporated herein by
reference.
IN WITNESS WHEREOF, the Corporation has
caused this Seventh Amended and Restated Certificate of
Incorporation to be executed by its duly authorized officer on June
19, 2020.
|
AUTOWEB,
INC.
|
||
|
|
|
|
|
By:
|
|
/s/
Glenn E. Fuller
|
|
Name:
|
|
Glenn
E. Fuller
|
|
Title:
|
|
Executive
Vice President, Chief Legal Officer and Secretary
|
-1-
Exhibit “A”
SEVENTH AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION
OF
AUTOWEB, INC.
(a Delaware corporation)
ARTICLE I
The
name of this corporation is AutoWeb, Inc. (“Corporation”).
ARTICLE II
The
address of the Corporation’s registered office in the State
of Delaware is 9 E. Loockerman Street, Suite 311, Dover, DE 19901
in the County of Kent. The name of its registered agent at such
address is Registered Agent Solutions, Inc.
ARTICLE III
The
purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware
General Corporation Law.
ARTICLE IV
A. Classes
of Stock. This Corporation is authorized to issue two
classes of stock, to be designated, respectively,
“Common Stock”
and “Preferred
Stock.” The total number of shares that this
Corporation is authorized to issue is sixty-six million four
hundred forty-five thousand one hundred eighty-seven (66,445,187).
The number of shares of Common Stock authorized to be issued is
fifty-five million (55,000,000), par value $0.001 per share. The
number of shares of Preferred Stock authorized to be issued is
eleven million four hundred forty-five thousand one hundred
eighty-seven (11,445,187), par value $0.001 per share.
B. Rights,
Preferences and Restrictions of the Preferred Stock. The
undesignated shares of Preferred Stock may be issued from time to
time in one or more series pursuant to a resolution or resolutions
providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board).
The Board of Directors is further authorized to determine or alter
the rights, powers (including voting powers), preferences and
privileges, and the qualifications, limitations or restrictions
thereof, granted to or imposed upon any wholly unissued series of
Preferred Stock, and to fix the number of shares of any series of
Preferred Stock and the designation of any such series of Preferred
Stock. The Board of Directors, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series, may
increase or decrease (but not below the number of shares in any
such series then outstanding) the number of shares of any series
subsequent to the issue of shares of that series.
Pursuant
to the authority conferred by this Article IV upon the Board of
Directors of the Corporation, the Board of Directors created a
series of two million (2,000,000) shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock, par
value $0.001 per share, by filing a Certificate of Designation of
Series A Junior Participating Preferred Stock with the Secretary of
State of the State of Delaware (“Secretary of State”) on July 30,
2004. Such Certificate of Designation was amended by filing an
Amended Certificate of Designation of Series A Junior Participating
Preferred Stock with the Secretary of State on April 24, 2009 and
October 9, 2017. The powers (including voting powers),
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the Series A Junior Participating
Preferred Stock are set forth in Exhibit A
attached hereto and are incorporated herein by
reference.
-2-
ARTICLE V
The
Corporation is to have perpetual existence.
ARTICLE VI
The
election of directors need not be by written ballot unless a
stockholder demands election by written ballot at a meeting of
stockholders and before voting begins or unless the Bylaws of the
Corporation shall so provide.
ARTICLE VII
The
number of directors which constitute the whole Board of Directors
of the Corporation shall be designated in the Bylaws of the
Corporation. The terms of office of the Board of Directors will be
divided into three classes: the Class I term will expire at the
annual meeting of stockholders to be held in 1999; the Class II
term will expire at the annual meeting of stockholders to be held
in 2000; and the Class III term will expire at the annual meeting
of stockholders to be held in 2001. At each annual meeting of
stockholders after the initial classification, the successors to
directors whose term will then expire will be elected to serve from
the time of election and qualification until the third annual
meeting following election. The directorships will be distributed
among the three classes so that, as nearly as possible, each class
will consist of one-third of the directors.
ARTICLE VIII
In
furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly
authorized to adopt, alter, amend or repeal the Bylaws of the
Corporation.
ARTICLE IX
(A) No
director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as a
director, except for any matter in respect of which such director
(1) shall be liable under Section 174 of the General
Corporation Law of the State of Delaware or any amendment thereto
or successor provision thereto, or (2) shall be liable by
reason that, in addition to any and all other requirements for
liability, he:
(i)
shall have breached his duty of loyalty to the Corporation or its
stockholders;
(ii)
shall not have acted in good faith or, in failing to act, shall not
have acted in good faith;
(iii)
shall have acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in
a manner involving intentional misconduct or a knowing violation of
law; or
(iv)
shall have derived an improper personal benefit.
If the
Delaware General Corporation Law is amended after the date hereof
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 Delaware General Corporation Law, as so
amended.
(B) The
Corporation shall indemnify to the fullest extent permitted under
and in accordance with the laws of the State of Delaware any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason
of the fact that he is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
-3-
(C)
Expenses incurred in defending a civil, criminal, administrative or
investigative action, suit or proceeding shall (in the case of any
action, suit or proceeding against a director of the Corporation)
or may (in the case of any action, suit or proceeding against an
officer, employee or agent) be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding as
authorized by the Board upon receipt of an undertaking by or on
behalf of the indemnified person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article IX.
(D) The
indemnification and other rights set forth in this Article IX shall
not be exclusive of any provisions with respect thereto in the
By-Laws or any other contract or agreement between the Corporation
and any officer, director, employee or agent of the
Corporation.
(E)
Neither the amendment nor repeal of this Article IX, paragraph (B),
(C) or (D), nor the adoption of any provision of this
Certificate of Incorporation inconsistent with Article IX,
paragraph (B), (C) or (D), shall eliminate or reduce the
effect of this Article IX, paragraphs (B), (C) or (D), in
respect of any matter occurring before such amendment, repeal or
adoption of an inconsistent provision or in respect of any cause of
action, suit or claim relating to any such matter which would have
given rise to a right of indemnification or right to receive
expenses pursuant to this Article IX, paragraph (B), (C) or
(D), if such provision had not been so amended or repealed or if a
provision inconsistent therewith had not been so
adopted.
ARTICLE X
No
stockholder will be permitted to cumulate votes at any election of
directors.
ARTICLE XI
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 laws of the State of
Delaware) outside of 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 XII
The
stockholders of the Corporation may not take action by written
consent without a meeting but must take such action at a duly
called annual or special meeting of stockholders.
ARTICLE XIII
Subject
to the limitations set forth herein, the Corporation reserves the
right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter
prescribed by the laws of the State of Delaware, and all rights
conferred herein are granted subject to this
reservation.
-4-
Exhibit A
AMENDED
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
AutoWeb, Inc.
(“Company”), a
corporation organized and existing under the laws of the State of
Delaware, hereby certifies under the laws of the State of Delaware
as follows:
1. No
shares of Series A Junior Participating Preferred Stock have been
issued.
2. On
September 27, 2017, pursuant to the provisions of Section 151 of
the General Corporation Law of the State of Delaware and the
authority conferred upon the Board of Directors of the Company
(“Board of
Directors”) by Article IV of the Certificate of
Incorporation of the Company, as amended and/or restated, the Board
of Directors duly and validly adopted the following resolution
setting forth the Company’s Amended Certificate of
Designation of Series A Junior Participating Preferred
Stock:
Resolved, that pursuant to the authority
granted to and vested in the Board of Directors of the Company in
accordance with the provisions of the Certificate of Incorporation
of the Company, as amended and/or restated, and in accordance with
Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors has determined that it is
advisable and in the best interests of the Company and its
stockholders to amend in its entirety the certificate of
designation for the Series A Junior Participating Preferred Stock,
$0.001 par value per share, as follows:
Section
1. Designation
and Amount. Two million (2,000,000) shares of Preferred
Stock, $0.001 par value, are designated “Series A Junior
Participating Preferred Stock” with the designations and the
powers, preferences and rights, and the qualifications, limitations
and restrictions specified herein (“Junior Preferred Stock”). Such
number of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce
the number of shares of Junior Preferred Stock to a number less
than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any
outstanding securities issued by the Company convertible into
Junior Preferred Stock.
Section
2. Dividends
and Distributions.
(A) Subject
to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior
to the Junior Preferred Stock with respect to dividends, the
holders of shares of Junior Preferred Stock, in preference to the
holders of Common Stock, par value $0.001 per share
(“Common
Stock”), of the Company, and of any other junior
stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of
April, July, October and January in each year (each such date being
referred to herein as a “Quarterly Dividend Payment Date”),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of (a) $1.00 per
share or (b) subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than
a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Junior Preferred Stock. In the
event the Company shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Junior Preferred Stock were
entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
-5-
(B) The
Company shall declare a dividend or distribution on the Junior
Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common
Stock); provided, that in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1.00 per share on the Junior Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of
Junior Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares,
or unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders of
shares of Junior Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Junior Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares of
Junior Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment
thereof.
Section
3. Certain
Restrictions.
(A) Whatever
quarterly dividends or other dividends or distributions payable on
the Junior Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Junior
Preferred Stock outstanding shall have been paid in full, the
Company shall not:
(i) declare
or pay dividends, or make any other distributions, on any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Junior Preferred
Stock;
(ii)
declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preferred
Stock, except dividends paid ratably on the Junior Preferred Stock
and all such parity stock on which dividends are payable or in
arrears in proportion to the total amount to which the holders of
all such shares are then entitled;
(iii)
redeem or purchase or otherwise acquire for consideration shares of
any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred
Stock, provided that the Company may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange
for shares of any stock of the Company ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Junior Preferred Stock; or
(iv)
redeem or purchase or otherwise acquire for consideration any
shares of Junior Preferred Stock, or any shares of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Junior Preferred Stock, except in
accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or
classes.
-6-
(B) The
Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this
Section 3, purchase or otherwise acquire such shares at such time
and in such manner.
Section
4. Reacquired
Shares. Any shares of Junior Preferred Stock purchased or
otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a
new series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Company’s
Certificate of Incorporation, as amended or restated from time to
time, or in any other Certificate of Designation creating a series
of Preferred Stock or any similar stock or as otherwise required by
law.
Section
5. Liquidation,
Dissolution or Winding Up. Upon any liquidation, dissolution
or winding up of the Company, no distribution shall be made (1) to
the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Junior Preferred Stock unless, prior thereto, the holders of shares
of Junior Preferred Stock shall have received $100.00 per share,
plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Junior Preferred
Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per share
to holders of shares of Common Stock, or (2) to the holders of
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preferred
Stock, except distributions made ratably on the Junior Preferred
Stock and all such parity stock in proportion to the total amounts
to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Company
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Junior Preferred Stock were
entitled immediately prior to such event under the proviso in
clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such
event.
Section
6.
Consolidation, Merger, Etc.
In case the Company shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case each share of
Junior Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the
event the Company shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of Junior Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section
7. No
Redemption. The shares of Junior Preferred Stock shall not
be redeemable.
Section
8. Rank.
The Junior Preferred Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to all series
of any other class of the Company’s Preferred
Stock.
-7-