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KAR Auction Services, Inc. – ‘10-Q’ for 6/30/16 – ‘EX-3.1’

On:  Wednesday, 8/3/16, at 2:18pm ET   ·   For:  6/30/16   ·   Accession #:  1395942-16-340   ·   File #:  1-34568

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  As Of               Filer                 Filing    For·On·As Docs:Size

 8/03/16  KAR Auction Services, Inc.        10-Q        6/30/16   55:7.1M

Quarterly Report   —   Form 10-Q   —   Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-Q        Form 10-Q - June 30, 2016                           HTML    783K 
 2: EX-3.1      Exhibit 3.1 - Amended & Restated Certificate of     HTML     46K 
                Incorporation                                                    
 3: EX-31.1     Exhibit 31.1 - CEO Sox 302 Certification            HTML     24K 
 4: EX-31.2     Exhibit 31.2 - CFO Sox 302 Certification            HTML     24K 
 5: EX-32.1     Exhibit 32.1 - CEO Sox 906 Certification            HTML     18K 
 6: EX-32.2     Exhibit 32.2 - CFO Sox 906 Certification            HTML     18K 
13: R1          Document and Entity Information                     HTML     38K 
14: R2          Consolidated Statements of Income                   HTML     67K 
15: R3          Consolidated Statements of Comprehensive Income     HTML     28K 
16: R4          Consolidated Balance Sheets                         HTML    116K 
17: R5          Consolidated Balance Sheets (Parenthetical)         HTML     45K 
18: R6          Consolidated Statements of Stockholders' Equity     HTML     59K 
19: R7          Consolidated Statements of Stockholders' Equity     HTML     17K 
                (Parenthetical)                                                  
20: R8          Consolidated Statements of Cash Flows               HTML    117K 
21: R9          Basis of Presentation and Nature of Operations      HTML     53K 
22: R10         Acquisitions                                        HTML     29K 
23: R11         Stock and Stock-Based Compensation Plans            HTML     45K 
24: R12         Net Income Per Share                                HTML     49K 
25: R13         Finance Receivables and Obligations Collateralized  HTML     66K 
                by Finance Receivables                                           
26: R14         Long-Term Debt                                      HTML     66K 
27: R15         Derivatives                                         HTML     50K 
28: R16         Commitments and Contingencies                       HTML     22K 
29: R17         Accumulated Other Comprehensive Income (Loss)       HTML     29K 
30: R18         Segment Information                                 HTML    232K 
31: R19         Basis of Presentation and Nature of Operations      HTML     47K 
                Accounting Policies (Policies)                                   
32: R20         Basis of Presentation and Nature of Operations      HTML     31K 
                (Tables)                                                         
33: R21         Stock and Stock-Based Compensation Plans (Tables)   HTML     35K 
34: R22         Net Income Per Share (Tables)                       HTML     44K 
35: R23         Finance Receivables and Obligations Collateralized  HTML     60K 
                by Finance Receivables (Tables)                                  
36: R24         Long-Term Debt (Tables)                             HTML     53K 
37: R25         Derivatives (Tables)                                HTML     41K 
38: R26         Accumulated Other Comprehensive Income (Loss)       HTML     26K 
                (Tables)                                                         
39: R27         Segment Information (Tables)                        HTML    226K 
40: R28         Basis of Presentation and Nature of Operations      HTML     66K 
                (Details)                                                        
41: R29         Acquisitions (Details)                              HTML     53K 
42: R30         Stock and Stock-Based Compensation Plan Summary     HTML     46K 
                (Details)                                                        
43: R31         Share Repurchase Plan (Details)                     HTML     39K 
44: R32         Net Income Per Share (Details)                      HTML     50K 
45: R33         Finance Receivables and Obligations Collateralized  HTML     68K 
                by Finance Receivables (Details)                                 
46: R34         Long-Term Debt Summary (Details)                    HTML     53K 
47: R35         Credit Facilities (Details)                         HTML    115K 
48: R36         Derivatives (Details)                               HTML     46K 
49: R37         Derivatives (Details 2)                             HTML     25K 
50: R38         Commitments and Contingencies (Details)             HTML     18K 
51: R39         Accumulated Other Comprehensive Income (Loss)       HTML     29K 
                (Details)                                                        
52: R40         Segment Information (Details)                       HTML    103K 
54: XML         IDEA XML File -- Filing Summary                      XML     91K 
53: EXCEL       IDEA Workbook of Financial Reports                  XLSX     56K 
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‘EX-3.1’   —   Exhibit 3.1 – Amended & Restated Certificate of Incorporation


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  Exhibit  


EXHIBIT 3.1

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION

OF

KAR AUCTION SERVICES, INC.

The undersigned, Rebecca C. Polak, certifies that she is the Executive Vice President, General Counsel and Secretary of KAR Auction Services, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), and does hereby further certify as follows:

(1)The name of the Corporation is KAR Auction Services, Inc.

(2)The name under which the Corporation was originally incorporated was KAR Holdings, Inc. and the original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on November 9, 2006 and amended pursuant to that certificate of amendment filed with the Secretary of State of the State of Delaware on December 19, 2006. Pursuant to a certificate of amendment filed with the Secretary of State of the State of Delaware on November 3, 2009, the Corporation changed its name to KAR Auction Services, Inc. On December 9, 2009, the Corporation filed its amended and restated certificate of incorporation with the Secretary of State of the State of Delaware (the Certificate of Incorporation).

(3)At a meeting of the Board of Directors of the Corporation (the “Board of Directors”) on February 10, 2016, the Board of Directors authorized the amendment and restatement of the Certificate of Incorporation as set forth herein in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware. At the annual meeting of stockholders of the Corporation held on June 8, 2016, the stockholders of the Corporation approved the amendment and restatement of the Certificate of Incorporation as set forth herein in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.

                    





(4)This Amended and Restated Certificate of Incorporation further amends and restates the Certificate of Incorporation.

The text of the Certificate of Incorporation is hereby amended and restated to read in its entirety, as follows:

FIRST: The name of the Corporation is KAR Auction Services, Inc. (hereinafter, the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is 160 Greentree Drive, Suite 101, in the City of Dover, County of Kent. The name of its registered agent at that address is National Registered Agents, Inc.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “GCL”).

FOURTH:
(a)
Authorized Capital Stock. The total number of shares of stock which the Corporation shall have authority to issue is 500,000,000 of which the Corporation shall have authority to issue 400,000,000 shares of common stock, each having a par value of one cent per share ($0.01) (the “Common Stock”), and 100,000,000 shares of preferred stock, each having a par value of one cent per share ($0.01) (the “Preferred Stock”). The number of authorized shares of Common Stock or 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 in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the GCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required therefor.

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(b)
Common Stock. The powers, preferences and rights, and the qualifications, limitations and restrictions, of the Common Stock are as follows:
(1)Each holder of record of shares of Common Stock shall be entitled to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders of the Corporation on which holders of Common Stock are entitled to vote.

(2)    The holders of shares of Common Stock shall not have cumulative voting rights (as defined in Section 214 of the GCL).

(3)    Subject to the rights of the holders of Preferred Stock, and subject to any other provisions of this Amended and Restated Certificate of Incorporation, as it may be amended from time to time, holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, stock or property of the Corporation if, as and when declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor.

(4)    In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, after payment or provision for the payment of the debt and liabilities of the Corporation and subject to the prior payment in full of the preferential amounts, if any, to which any series of Preferred Stock may be entitled, the holders of shares of Common Stock shall be entitled to receive the assets and funds of the Corporation remaining for distribution in proportion to the number of shares held by them, respectively.

(5)    No holder of shares of Common Stock shall be entitled to preemptive or subscription rights.

(c)
Preferred Stock. The Board of Directors is expressly authorized to provide for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and to fix for each such class or series such voting powers, full or limited, or no voting powers, and such distinctive designations, preferences and relative, participating, optional or other special rights and such

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qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such class or series and as may be permitted by the GCL, including, without limitation, the authority to provide that any such class or series may be (i) subject to redemption at such time or times and at such price or prices; (ii) entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or any other series; (iii) entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; or (iv) convertible into, or exchangeable for, shares of any other class or classes of stock, or of any other series of the same or any other class or classes of stock, of the Corporation at such price or prices or at such rates of exchange and with such adjustments; all as may be stated in such resolution or resolutions.
(d)
Power to Sell and Purchase Shares. Subject to the requirements of applicable law, the Corporation shall have the power to issue and sell all or any part of any shares of any class of stock herein or hereafter authorized to such persons, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine, whether or not greater consideration could be received upon the issue or sale of the same number of shares of another class, and as otherwise permitted by law. Subject to the requirements of applicable law, the Corporation shall have the power to purchase any shares of any class of stock herein or hereafter authorized from such persons, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine, whether or not less consideration could be paid upon the purchase of the same number of shares of another class, and as otherwise permitted by law.

FIFTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:


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(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 the Board of Directors by applicable law, this Amended and Restated Certificate of Incorporation or the By-Laws of the Corporation, 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, subject to the provisions of the GCL and this Amended and Restated Certificate of Incorporation.
(b)
The Board of Directors shall consist of not less than two or more than fifteen members, the exact number of which shall be fixed from time to time by resolution adopted by the affirmative vote of a majority of the entire Board of Directors.
(c)
Subject to the terms of any one or more classes or series of Preferred Stock, any vacancy on the Board of Directors that results from an increase in the number of directors may be filled by a majority of the Board of Directors then in office, provided that a quorum is present, and any other vacancy occurring on the Board of Directors may be filled by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. The right of stockholders to fill vacancies on the Board of Directors is hereby specifically denied. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his or her predecessor.
(d)
Subject to the rights, if any, of the holders of shares of Preferred Stock then outstanding, any director or the entire Board of Directors may be removed from office at any time by the affirmative vote of the holders of at least a majority in voting power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors.
(e)
Notwithstanding the foregoing, the election, term, removal and filling of vacancies with respect to directors, if any, elected separately by the holders of one or more series of Preferred Stock shall not be governed by this Article FIFTH, but rather shall be as

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provided for in the resolutions adopted by the Board of Directors creating and establishing such series of Preferred Stock.
(f)
In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, 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, subject, nevertheless, to the provisions of the GCL and this Amended and Restated Certificate of Incorporation.
SIXTH: No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the GCL as the same exists or may hereafter be amended. If the GCL is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent authorized by the GCL, as so amended. Any repeal or modification of this Article SIXTH shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.

SEVENTH: The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this Article SEVENTH shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.

The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to

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those conferred in this Article SEVENTH to directors and officers of the Corporation.

The rights to indemnification and to the advance of expenses conferred in this Article SEVENTH shall not be exclusive of any other right which any person may have or hereafter acquire under this Amended and Restated Certificate of Incorporation, the By-Laws of the Corporation, any statute or other law, by agreement, vote of stockholders or approval of the directors of the Corporation or otherwise.

Any repeal or modification of this Article SEVENTH shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

EIGHTH: Any action required or permitted to be taken by the stockholders of the Corporation may be effected only at a duly called annual or special meeting of the stockholders of the Corporation. The ability of stockholders of the Corporation to consent in writing to the taking of any action is hereby specifically denied.

NINTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws of the Corporation may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) 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 By-Laws of the Corporation.

TENTH: Except as otherwise required by law, special meetings of stockholders of the Corporation for any purpose or purposes may be called at any time only by (i) the Chief Executive Officer of the Corporation or (ii) the Board of Directors pursuant to a resolution duly adopted by a majority of the total number of authorized directors then in office which states the purpose or purposes thereof. Any power of the stockholders to call a special meeting of stockholders is hereby specifically denied. No business other than that stated in the notice of such meeting (or any supplement thereto) shall be transacted at any special meeting.

ELEVENTH: The Corporation expressly elects not to be governed by Section 203 of the GCL.


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TWELFTH: In furtherance and not in limitation of the powers conferred upon it by the laws of the State of Delaware, the Board of Directors shall have the power without the assent or vote of the stockholders to adopt, amend, alter or repeal the By-Laws of the Corporation. The affirmative vote of at least a majority of the entire Board of Directors shall be required to adopt, amend, alter or repeal the By-Laws of the Corporation.

THIRTEENTH: If any provision or provisions of this Amended and Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law).



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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be executed on its behalf this 8th day of June, 2016.


KAR AUCTION SERVICES, INC.
By:
Name:
Title:
Executive Vice President,
 
General Counsel and Secretary


                    


Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘10-Q’ Filing    Date    Other Filings
Filed on:8/3/16UPLOAD
For Period end:6/30/164
6/8/164,  8-K,  DEF 14A,  PRE 14A
2/10/16SC 13G/A
12/9/09
11/3/09424B3,  8-K
12/19/06
11/9/06
 List all Filings 


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