Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 8-K Current Report HTML 27K
2: EX-3.1 Certificate of Elimination of Series B Junior HTML 16K
Participating Convertible Preferred
Stock of Autobytel Inc.
3: EX-3.2 Sixth Certificate of Amendment to Fifth Amended HTML 12K
and Restated Certificate of
Incorporation of Autobytel Inc.
4: EX-3.3 Amended Certificate of Designation of Series A HTML 29K
Junior Participating Convertible
Preferred Stock of Autoweb, Inc.
5: EX-3.4 Sixth Restated Certificate of Incorporation of HTML 46K Autoweb, Inc.
6: EX-3.5 Seventh Amended and Restated Bylaws of Autoweb, HTML 164K
Inc.
7: EX-99.1 Press Release HTML 10K
EX-3.4 — Sixth 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
Sixth Restated Certificate of Incorporation was duly adopted in
accordance with Section 245 of the General Corporation Law of the
State of Delaware.
3. This
Sixth Restated Certificate of Incorporation only restates and
integrates and does not further amend the Corporation’s
Certificate of Incorporation, and there is no discrepancy between
the provisions of the Fifth Amended and Restated Certificate of
Incorporation, as amended or supplemented, and the Sixth Restated
Certificate of Incorporation.
4. The
text of the Sixth Restated Certificate of Incorporation is set
forth on Exhibit
“A” attached hereto and incorporated herein by
reference.
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, DE19901
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, 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.
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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. Effective upon the consummation of an underwritten
public offering as described in Section 3(b)(i)(C) of Article IV, B
hereof, 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.
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(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
At the
election of directors of the Corporation, each holder of stock of
any class or series shall be entitled to one vote for each share
held. 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
Effective upon the
Initial Public Offering (as defined in Article IV
Section 3(b)(i) above), 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.
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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.
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(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.
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(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.
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Dates Referenced Herein and Documents Incorporated by Reference
