Quarterly Report — Form 10-Q — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
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1: 10-Q Quarterly Report HTML 569K
2: EX-3.1 Articles of Incorporation/Organization or Bylaws HTML 68K
3: EX-3.2 Articles of Incorporation/Organization or Bylaws HTML 174K
4: EX-31.1 Certification -- §302 - SOA'02 HTML 27K
5: EX-31.2 Certification -- §302 - SOA'02 HTML 27K
6: EX-32.1 Certification -- §906 - SOA'02 HTML 24K
42: R1 Document and Entity Information Document HTML 42K
32: R2 Condensed Consolidated Balance Sheets (Unaudited) HTML 110K
40: R3 Condensed Consolidated Balance Sheets HTML 61K
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44: R4 Condensed Consolidated Statements of Operations HTML 61K
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57: R5 Condensed Consolidated Statements of Convertible HTML 80K
Preferred Stock and Stockholders' Equity (Deficit)
34: R6 Condensed Consolidated Statements of Cash Flows HTML 139K
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39: R7 Nature of Business HTML 27K
29: R8 Summary of Significant Accounting Policies HTML 113K
21: R9 Acquisition of Rentlinx HTML 40K
58: R10 Property and Equipment HTML 41K
46: R11 Internal-Use Software Development Costs HTML 34K
45: R12 Goodwill and Intangible Assets HTML 84K
50: R13 Long-term Debt HTML 35K
51: R14 Commitment and Contingencies HTML 33K
49: R15 Convertible Preferred Stock and Stockholders' HTML 29K
Equity (Deficit)
52: R16 Stock-Based Compensation HTML 78K
41: R17 Income Taxes HTML 24K
43: R18 Revenue and Other Information HTML 46K
48: R19 Subsequent Events HTML 22K
62: R20 Summary of Significant Accounting Policies HTML 54K
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54: R21 Summary of Significant Accounting Policies HTML 146K
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36: R22 Acquisition of Rentlinx (Tables) HTML 32K
47: R23 Property and Equipment (Tables) HTML 37K
38: R24 Internal-Use Software Development Costs (Tables) HTML 28K
17: R25 Goodwill and Intangible Assets (Tables) HTML 82K
55: R26 Long-term Debt (Tables) HTML 30K
59: R27 Stock-Based Compensation (Tables) HTML 75K
25: R28 Revenue and Other Information (Tables) HTML 38K
24: R29 Nature of Business (Details) HTML 43K
27: R30 Summary of Significant Accounting Policies - Fair HTML 60K
Value Measurements (Details)
28: R31 Summary of Significant Accounting Policies - Net HTML 40K
Loss per Share (Details)
30: R32 Summary of Significant Accounting Policies - HTML 26K
Recent Accounting Pronouncements (Details)
16: R33 Acquisition of Rentlinx (Details) HTML 59K
53: R34 Property and Equipment (Details) HTML 49K
35: R35 Internal-Use Software Development Costs (Details) HTML 32K
37: R36 Goodwill and Intangible Assets - Goodwill Activity HTML 24K
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19: R37 Goodwill and Intangible Assets - Intangible Assets HTML 68K
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61: R38 Goodwill and Intangible Assets - Intangible Asset HTML 29K
Activity (Details)
13: R39 Long-term Debt (Details) HTML 88K
31: R40 Commitment and Contingencies (Details) HTML 48K
56: R41 Convertible Preferred Stock and Stockholders' HTML 34K
Equity (Deficit) (Details)
18: R42 Stock-Based Compensation - Stock Option Activity HTML 56K
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23: R43 Stock-Based Compensation - Valuation Assumptions HTML 44K
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26: R44 Stock-Based Compensation - Restricted Stock HTML 64K
Activity (Details)
33: R45 Income Taxes (Details) HTML 25K
15: R46 Revenue and Other Information (Details) HTML 28K
20: R47 Subsequent Events (Details) HTML 33K
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‘EX-3.1’ — Articles of Incorporation/Organization or Bylaws
AppFolio, Inc. (the “Corporation”), a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
A. The name of this Corporation is AppFolio, Inc., and the original Certificate
of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on February 14, 2007.
B. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”), and has been duly approved by the written consent of the stockholders of the Corporation in accordance with Section 228 of the DGCL.
C. The Certificate of Incorporation
of the Corporation is hereby amended and restated in its entirety to read as follows:
* * *
ARTICLE I
The name of the Corporation is AppFolio, Inc.
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington, County of New Castle, 19808. The name of its registered agent at such address is Corporation Service Company.
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. Classes
of Stock. The total number of shares of capital stock that the Corporation shall have authority to issue is 325,000,000, consisting of the following: 250,000,000 shares of Class A Common Stock, par value $0.0001 per share (“Class A Common Stock”), 50,000,000 shares of Class B Common Stock, par value $0.0001 per share (“Class B Common Stock”), and 25,000,000 shares of undesignated Preferred Stock, par value $0.0001 per share (“Preferred Stock”).
Immediately upon the acceptance of this Amended and Restated Certificate of Incorporation for filing by the Secretary of State of the State of Delaware (the “Effective Time”), each share of
the Corporation’s capital stock issued and outstanding or held as treasury stock immediately prior to the Effective Time, shall, automatically and without further action by any stockholder, be reclassified as, and shall become, one share of Class B Common Stock.
B. Rights of Preferred Stock. The Board of Directors of the Corporation (the “Board of Directors”) is authorized, subject to any limitations prescribed by law but to the fullest extent permitted by law, to provide by resolution 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, (which may include, without limitation, full, limited or no voting powers), preferences, and relative, participating, optional or other rights of the shares of each such series and any qualifications, limitations or restrictions thereof.
C. Vote to Increase or Decrease Authorized Shares of Preferred Stock. 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 outstanding shares of capital stock of the Corporation entitled to vote thereon, without a separate class vote of the holders of Preferred Stock, or any separate series votes of any series thereof, unless a vote of any such
holders is required pursuant to the terms of any Preferred Stock Designation.
D. Rights of Class A Common Stock and Class B Common Stock. The relative powers, rights, qualifications, limitations and restrictions granted to or imposed on the shares of Class A Common Stock and Class B Common Stock are as follows:
1. Voting Rights.
(a) General Right to Vote Together; Exception. Except as otherwise expressly provided herein or required by applicable law, the holders of Class A Common Stock and Class B Common Stock shall vote together as one class on all matters submitted to a vote of the stockholders; provided,
however, subject to the terms of any Preferred Stock Designation, the number of authorized shares of Class A Common Stock or Class B Common 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 the capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of DGCL.
(b) Votes Per Share. Except as otherwise expressly provided herein or required by applicable law, on any matter that is submitted to a vote of the stockholders, each holder of Class A Common Stock shall be entitled to one (1) vote for each such share, and each holder of Class B Common Stock shall be entitled to ten (10) votes for each such share.
2. Identical
Rights. Except as otherwise expressly provided herein or required by applicable law, shares of Class A Common Stock and Class B Common Stock shall have the same rights and privileges and rank equally, share ratably and be identical in all respects as to all matters, including, without limitation:
(a) Dividends and Distributions. Shares of Class A Common Stock and Class B Common Stock shall be treated equally, identically and ratably, on a per share basis, with respect to any Distribution paid or distributed by the Corporation; provided, however, that in the event a Distribution is paid in the form of Class A Common Stock or Class B Common Stock (or Rights to acquire such stock), then holders of Class A Common Stock shall
receive Class A Common Stock (or Rights to acquire such stock, as the case may be) and holders of Class B Common Stock shall receive Class B Common Stock (or Rights to acquire such stock, as the case may be).
(b) Subdivision or Combination. If the Corporation in any manner subdivides or combines the outstanding shares of Class A Common Stock or Class B Common Stock, the outstanding shares of the other such class will be subdivided or combined in the same proportion and manner.
(c) Equal Treatment in a Change of Control or any Merger Transaction. In connection with any Change of Control Transaction, shares of Class A Common Stock and Class B Common Stock shall be treated equally, identically and ratably, on a per share basis, with respect
to any consideration into which such shares are converted or any consideration paid or otherwise distributed to stockholders of the Corporation. Any merger or consolidation of the Corporation with or into any other entity, which is not a Change of Control Transaction, shall require approval by the affirmative vote of the holders of a majority of the outstanding shares of Class A Common Stock and by the affirmative vote of the holders of a majority of the outstanding shares of Class B Common Stock, each voting separately as a class, unless (i) the shares of Class A Common Stock and Class B Common Stock remain outstanding and no other consideration is received in respect thereof or (ii) such shares are converted on a pro rata
basis
into shares of the surviving or parent entity in such transaction having identical rights to the shares of Class A Common Stock and Class B Common Stock, respectively.
3. Change of Control Transactions. The Corporation will not consummate a Change of Control Transaction without first obtaining the approval of the holders of at least a majority of the then outstanding shares of Class B Common Stock, voting as a separate class, in addition to any other vote required by applicable law, this Amended and Restated Certificate of Incorporation or the Bylaws.
4. Conversion
of Class B Common Stock.
(a) Voluntary Conversion. Each one (1) share of Class B Common Stock shall be convertible into one (1) share of Class A Common Stock at the option of the holder thereof at any time upon written notice to the transfer agent of the Corporation.
(b) Automatic Conversion. Except as provided in ARTICLE IV, Section D.4.(c) below, shares of Class B Common Stock shall automatically, without any further action, convert into an equal number of shares of Class A Common Stock upon any Transfer of such shares of Class B Common Stock, except for a Transfer:
(i) by a partnership or limited liability company that was
a registered holder of shares of Class B Common Stock at the Effective Time to a partner of such partnership or a member of such limited liability company at the Effective Time; or
(ii) to a Qualified Recipient.
(c) Conversion Upon Death of a Class B Stockholder. Each share of Class B Common Stock which is held of record by a Class B Stockholder who is a natural person, or which is held of record by a Trust or Individual Retirement Account and which is to be the subject of a Transfer to other than a Qualified Recipient as a result of the death of a Class B Stockholder, shall automatically, without any further action, convert into one (1) fully paid and nonassessable share of Class A Common Stock upon that date which is nine (9) months after the date of death of
such Class B Stockholder, unless such share is transferred to a Qualified Recipient or otherwise converts to a share of Series A Common Stock prior to such date.
(d) Final Conversion of Class B Common Stock. On the Final Conversion Date, each one (1) issued share of Class B Common Stock shall automatically, without any further action, convert into one (1) share of Class A Common Stock. Following such conversion, the reissuance of all shares of Class B Common Stock shall be prohibited, and such shares shall be retired and cancelled in accordance with Section 243 of the DGCL and the filing by the Secretary of State of the State of Delaware required thereby, and upon such retirement and cancellation, all references to Class B Common Stock in this Amended and Restated Certificate
of Incorporation shall be eliminated.
(e) Procedures. The Corporation may, from time to time, establish such policies and procedures relating to the conversion of Class B Common Stock to Class A Common Stock and the general administration of this dual class stock structure, including the issuance of stock certificates with respect thereto, as it may deem reasonably necessary or advisable, and may from time to time request that holders of shares of Class B Common Stock furnish certifications, affidavits or other proof to the Corporation as it deems necessary to verify the ownership of Class B Common Stock and to confirm that a conversion to Class A Common Stock has not occurred. A determination by the Secretary of the Corporation that a Transfer results in a conversion to Class A Common Stock shall be conclusive and binding.
(f) Immediate
Effect. In the event of a conversion of shares of Class B Common Stock to shares of Class A Common Stock pursuant to this ARTICLE IV Section D.4 or upon the Final Conversion Date, such conversion(s) shall be deemed to have been made at the time that the Transfer of shares occurred or immediately upon the Final Conversion Date, as applicable. Upon any conversion of Class B Common Stock to Class A Common Stock, all rights of the holder of shares of Class B Common Stock shall cease and the person or persons in whose names or names the certificate or certificates representing the shares of Class A Common Stock are to be issued shall
be treated for all purposes as having become the record holder or holders
of such shares of Class A Common Stock. Shares of Class B Common Stock that are converted into shares of Class A Common Stock as provided in this ARTICLE IV Section D.4 shall be retired and may not be reissued.
(g) Reservation of Stock. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of effecting the conversion of the shares of Class B Common Stock, such number of its shares of Class A Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Class B Common Stock into shares of Class A Common Stock.
E. No Further Issuances. Except for the issuance of Class B Common Stock issuable upon exercise
of Rights outstanding at the Effective Time or a dividend payable in accordance with ARTICLE IV, Section D.2.(a), the Corporation shall not at any time after the Effective Time issue any additional shares of Class B Common Stock, unless such issuance is approved by the affirmative vote of the holders of a majority of the outstanding shares of Class B Common Stock. After the Final Conversion Date, the Corporation shall not issue any additional shares of Class B Common Stock.
F. Definitions. The following terms, where capitalized in this Amended and Restated Certificate of Incorporation, shall have the meanings ascribed to them in this ARTICLE IV, Section F:
“Change of Control Share Issuance”
means the issuance by the Corporation, in a transaction or series of related transactions, of voting securities representing more than two percent (2%) of the total voting power (assuming Class A Common Stock and Class B Common Stock each have one (1) vote per share) of the Corporation before such issuance to any person or persons acting as a group as contemplated in Rule 13d-5(b) under the Exchange Act (or any successor provision) that immediately prior to such transaction or series of related transactions held fifty percent (50%) or less of the total voting power of the Corporation (assuming Class A Common Stock and Class B Common Stock each have one (1) vote per share), such that, immediately following such transaction or series of related transactions, such person or group of persons would hold more than fifty percent (50%) of the total voting power of the Corporation (assuming Class A Common Stock and Class B Common Stock each have one (1) vote per share).
“Change
of Control Transaction” means (i) the sale, lease, exchange, or other disposition (other than liens and encumbrances created in the ordinary course of business, including liens or encumbrances to secure indebtedness for borrowed money that are approved by the Board of Directors, so long as no foreclosure occurs in respect of any such lien or encumbrance) of all or substantially all of the Corporation’s property and assets (which shall for such purpose include the property and assets of any direct or indirect subsidiary of the Corporation), provided that any sale, lease, exchange or other disposition of property or assets exclusively between or among the Corporation and any direct or indirect subsidiary or subsidiaries of the Corporation shall not be deemed a “Change of Control Transaction”;
(ii) the merger, consolidation, business combination, or other similar transaction of the Corporation with any other entity, other than a merger, consolidation, business combination, or other similar transaction that would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than fifty percent (50%) of the total voting power represented by the voting securities of the Corporation and more than fifty percent (50%) of the total number of outstanding shares of the Corporation’s capital stock, in each case as outstanding immediately after such merger, consolidation, business combination, or other similar transaction, and the stockholders of the Corporation immediately prior to the merger, consolidation, business combination, or other similar transaction
own voting securities of the Corporation, the surviving entity or its parent immediately following the merger, consolidation, business combination, or other similar transaction in substantially the same proportions (vis a vis each other) as such stockholders owned the voting securities of the Corporation immediately prior to the transaction; (iii) a recapitalization, liquidation, dissolution, or other similar transaction involving the Corporation, other than a recapitalization, liquidation, dissolution, or other similar transaction that would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or being converted into voting securities of the surviving entity or its parent) more than fifty percent (50%) of the total voting power represented by the voting securities of the Corporation and more than fifty percent of the total number
of outstanding shares of the Corporation’s capital stock, in each case as outstanding immediately after such recapitalization,
liquidation, dissolution or other similar transaction, and the stockholders of the Corporation immediately prior to the recapitalization, liquidation, dissolution or other similar transaction own voting securities of the Corporation, the surviving entity or its parent immediately following the recapitalization, liquidation, dissolution or other similar transaction in substantially the same proportions (vis a vis each other) as such stockholders owned the voting securities of the Corporation immediately prior to the transaction; and (iv) any Change of Control Share Issuance.
“Class
B Stockholder” means (i) the registered holder of a share of Class B Common Stock at the Effective Time, (ii) the initial registered holder of any shares of Class B Common Stock that are originally issued by the Corporation after the Effective Time and (iii) a Qualified Recipient who becomes a registered holder of any shares of Class B Common Stock.
“Distribution” means (i) any dividend or distribution of cash, property or shares of the Corporation’s capital stock; and (ii) any distribution following or in connection with any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Final
Conversion Date” means 5:00 p.m. in New York City, New York on the first Trading Day falling on or after the date on which the outstanding shares of Class B Common Stock represent less than 10% of the aggregate number of shares of the then outstanding Class A Common Stock and Class B Common Stock.
“Indirect Owner” means any natural person, entity, Trust or Individual Retirement Account that had an indirect ownership or beneficial interest in shares of Class B Common Stock at the Effective Time by reason of such person’s, entity’s, Trust’s or Individual Retirement Account’s direct or indirect ownership or beneficial interest in (i) a registered holder of shares of Class B Common Stock issued and outstanding at the Effective Time or (ii) any entity, Trust or Individual Retirement Account that in turn had a direct or indirect ownership or beneficial interest in
any entity, Trust or Individual Retirement Account that was an Indirect Owner at the Effective Time.
“Indirect Owner Shares” means shares of Class B Common Stock in which an Indirect Owner has an indirect ownership or beneficial interest. The actual number of Indirect Owner Shares in which any Indirect Owner has an indirect ownership or beneficial interest shall be his, her or its pro rata share of the shares of Class B Common Stock owned directly by the registered holder thereof or indirectly by an Indirect Owner, as the case may be, calculated without regard to any “carried interest” to which such shares may be subject, based on his, her or its pro rata ownership or beneficial interest in such holder or Indirect Owner, as the case may be.
“Individual Retirement Account” means a retirement
account defined in Section 408(a) of the Internal Revenue Code, or a pension, profit sharing, stock bonus or other type of plan or trust, in each case, of which a Qualifying Recipient is a participant or beneficiary and which satisfies the requirements for qualification under Section 401 of the Internal Revenue Code so long as such Qualifying Recipient has sole dispositive power and exclusive Voting Control with respect to the shares of Class B Common Stock held in such account, plan or trust.
“Qualified Entity” means a corporation, partnership or limited liability company in which one or more Qualifying Recipients have ownership rights, or otherwise have legally enforceable rights, such that the Qualifying Recipients have exclusive Voting Control with respect to the shares of Class B Common Stock held by such corporation, partnership or limited liability company.
“Qualified
Recipient” means (i) a registered holder of at least one percent (1%) of the total number of shares of Class B Common Stock issued and outstanding at the Effective Time or (ii) an Indirect Owner who had an indirect ownership or beneficial interest in a number of Indirect Owner Shares that constituted, in the aggregate, at least one percent (1%) of the total number of shares of Class B Common Stock issued and outstanding at the Effective Time or (iii) a Qualified Entity or (iv) a Trust or (v) an Individual Retirement Account. For purposes of the above, a “Qualified Recipient” shall include the spouse of any person identified in clause (i) or (ii) that possesses an interest in such shares
arising
by reason of the application of the community property laws of any jurisdiction, in which case both spouses shall be Qualified Recipients.
“Rights” means any option, warrant, conversion right or contractual right of any kind to acquire shares of the Corporation’s authorized but unissued capital stock.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Securities Exchange” means, at any time, the registered national securities exchange on which the Corporation’s equity securities are then principally listed or traded, which shall be the New York Stock Exchange or NASDAQ Global Market (or similar national quotation system of the NASDAQ Stock Market) (“NASDAQ”)
or any successor exchange of either the New York Stock Exchange or NASDAQ.
“Trading Day” means any day on which the Securities Exchange is open for trading.
“Transfer” of a share of Class B Common Stock shall mean any sale, assignment, transfer, conveyance, distribution, hypothecation or other transfer or disposition of such share or any legal or beneficial interest in such share, whether or not for value and whether voluntary or involuntary or by operation of law. A “Transfer” shall also include, without limitation, (i) an event as a result of which Qualifying Recipients no longer have exclusive Voting Control with respect to shares of Class B Common Stock held by or in a Trust or Individual Retirement Account, as required in order for such Trust
or Individual Retirement Account to be a Qualifying Recipient, or (ii) an event as a result of which Qualifying Recipients no longer own sufficient interests in a Qualified Entity, and no longer have sufficient legally enforceable rights, to ensure that Qualifying Recipients have exclusive Voting Control with respect to the shares of Class B Common Stock held by such Qualified Entity, or (iii) the transfer of, or entering into a binding agreement with respect to, Voting Control over a share of Class B Common Stock by proxy or otherwise; provided, however, that the following shall not be considered a “Transfer”: (a) the grant of a proxy to officers or directors of the Corporation at the request of the Board of Directors in connection with actions to be taken at an annual or special meeting of stockholders; (b) the pledge of shares
of Class B Common Stock by a Class B Stockholder that creates a mere security interest in such shares pursuant to a bona fide loan or indebtedness transaction so long as the Class B Stockholder continues to exercise Voting Control over such pledged shares; provided, however, that a foreclosure on such shares of Class B Common Stock or other similar action by the pledge shall constitute a “Transfer”; or (c) the fact that, as of the Effective Time or at any time after the Effective Time, the spouse of any Class B Stockholder possesses or obtains an interest in such holder’s shares of Class B Common Stock arising solely by reason of the application of the community property laws of any jurisdiction, so long as no other event or circumstance shall exist or have occurred that constitutes a “Transfer”
of such shares of Class B Common Stock.
“Trust” means a trust (i) for the benefit of a Qualifying Recipient or (ii) for the benefit of persons other than a Qualifying Recipient or (iii) under the terms of which a Qualifying Recipient has retained a “qualified interest” within the meaning of § 2702(b)(1) of the Internal Revenue Code and/or a reversionary interest, so long as, in each case under (i), (ii) and (iii), a Qualifying Recipient has sole dispositive power and exclusive Voting Control with respect to the shares of Class B Common Stock held by such trust.
“Voting Control” with respect to shares of Class B Common Stock means the power (directly or indirectly) to vote or direct the voting of such shares of Class B Common Stock by proxy, voting agreement, or otherwise.
ARTICLE
V
A. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
B. Number of Directors; Election. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, the number of directors that constitutes the entire Board of Directors shall be fixed solely by resolution of the Board of Directors. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, each director of the Corporation shall hold office until the expiration of the term
for
which he or she is elected and until his or her successor has been duly elected and qualified or until his or her earlier resignation, death or removal.
C. Classified Board Structure. From and after the Effective Time, and subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, the directors of the Corporation shall be divided into three (3) classes as nearly equal in size as is practicable, hereby designated Class I, Class II and Class III. The Board of Directors may assign members of the Board of Directors already in office to such classes at the time such classification becomes effective. The term of office of the initial Class I directors shall expire at the first regularly-scheduled annual meeting of stockholders following the Effective Time, the term of office of the initial
Class II directors shall expire at the second annual meeting of stockholders following the Effective Time and the term of office of the initial Class III directors shall expire at the third annual meeting of stockholders following the Effective Time. At each annual meeting of stockholders, commencing with the first regularly-scheduled annual meeting of stockholders following the Effective Time, each of the successors elected to replace the directors of a Class whose term shall have expired at such annual meeting shall be elected to hold office until the third annual meeting next succeeding his or her election and until his or her respective successor shall have been duly elected and qualified.
Notwithstanding the foregoing provisions of this ARTICLE V, and subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, each director shall serve until his or her successor is duly
elected and qualified or until his or her death, resignation, or removal. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, if the number of directors is hereafter changed, any newly created directorships or decrease in directorships shall be so apportioned among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
D. Removal; Vacancies. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, any director may be removed from office by the stockholders of the Corporation only for cause. Vacancies occurring on the Board of Directors for any reason and newly
created directorships resulting from an increase in the authorized number of directors may be filled only by vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining director, at any meeting of the Board of Directors. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her successor shall be duly elected and qualified.
ARTICLE VI
A. Written Ballot. Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
B. Amendment
of Bylaws. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation.
C. Special Meetings. Special meetings of the stockholders may be called only by (i) the Board of Directors pursuant to a resolution adopted by a majority of the Board of Directors; (ii) the chairman of the Board of Directors; (iii) the chief executive officer of the Corporation; or (iv) the president of the Corporation (in the absence of a chief executive officer).
D. No
Stockholder Action by Written Consent. Subject to the rights of the holders of any series of Preferred Stock, no action shall be taken by the stockholders of the Corporation except at an annual or special meeting of the stockholders called in accordance with the Bylaws, and no action shall be taken by the stockholders by written consent.
E. No Cumulative Voting. No stockholder will be permitted to cumulate votes at any election of directors.
ARTICLE VII
To
the fullest extent permitted by the DGCL, as it presently exists or may hereafter 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 amended 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 DGCL, as so amended.
Neither any amendment nor repeal of this ARTICLE VII, nor the adoption of any provision of the Corporation’s Certificate of Incorporation inconsistent with this ARTICLE VII, shall eliminate or reduce the effect of this ARTICLE VII in respect of any matter occurring, or any cause of action, suit or proceeding
accruing or arising or that, but for this ARTICLE VII, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
ARTICLE VIII
Subject to any provisions in the Bylaws of the Corporation related to indemnification of directors or officers of the Corporation, the Corporation shall indemnify, to the fullest extent permitted by applicable law, any director or officer of the Corporation 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 (a “Proceeding”) by reason of the fact that he or she 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, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
The Corporation shall have the power to indemnify, to the extent permitted by the DGCL, as it presently exists or may hereafter be amended from time to time, any employee or agent of the Corporation who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she 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, including
service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
A right to indemnification or to advancement of expenses arising under a provision of this Amended and Restated Certificate of Incorporation or the Bylaws of the Corporation shall not be eliminated or impaired by an amendment to this Amended and Restated Certificate of Incorporation or the Bylaws of the Corporation after the occurrence of the act
or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
ARTICLE IX
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 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 Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation
Law or the Corporation’s Certificate of Incorporation or Bylaws, or (iv) any action 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 consented to the provisions of this ARTICLE IX.
ARTICLE X
If any provision of this Amended and Restated Certificate
of Incorporation 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 Amended and Restated Certificate of Incorporation, and the court will replace such illegal, void or unenforceable provision of this Amended and Restated Certificate of Incorporation with a valid and enforceable provision that most accurately reflects the Corporation’s 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 Amended and Restated Certificate
of Incorporation shall be enforceable in accordance with its terms.
Except as provided in ARTICLE VII and ARTICLE VIII above, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation; provided, however, that, notwithstanding any other provision of this Amended and Restated Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of this Corporation required by law or by this Amended
and Restated Certificate of Incorporation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of the outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal, or adopt any provision of this Amended and Restated Certificate of Incorporation inconsistent with, ARTICLE V, ARTICLE VI, ARTICLE VII, ARTICLE VIII, ARTICLE IX or this ARTICLE X.
* * * *
IN WITNESS WHEREOF, this Amended and Restated Certificate
of Incorporation has been signed on behalf of the Corporation by its duly authorized officer effective this 25th day of June, 2015.
