(Exact
name of registrant as specified in its charter)
Delaware
33-0711569
(State
of
incorporation (IRS
Employer
or
organization) Identification
No.)
18872 MacArthur Boulevard, Suite 200, Irvine,
California
92612-1400
(Address of principal executive
offices) (Zip
Code)
Securities
to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so
registered
Name
of each exchange on which
each class is to be
registered
Preferred
Stock Purchase Right
The
Nasdaq Stock Market
If this
form relates to the registration of a class of securities pursuant to Section
12(b) of the Exchange Act and is effective pursuant to General Instruction
A.(c), check the following box. ý
If this
form relates to the registration of a class of securities pursuant to Section
12(g) of the Exchange Act and is effective pursuant to General Instruction
A.(d), check the following box. ¨
Securities
Act registration statement file number to which this form
relates: n/a
(If
applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
none
Item 1.
Description
of Registrant’s Securities to be
Registered.
Effective
as of May 26, 2010, Autobytel Inc. (the “Company”) entered into a Tax Benefit
Preservation Plan, between the Company and Computershare Trust Company, N.A., as
rights agent (the “Plan”). The Board of Directors of the Company (the “Board”)
adopted the Plan to protect stockholder value by preserving important tax
assets. The Company has generated substantial net operating loss carryovers and
other tax attributes for United States federal income tax purposes (“Tax
Benefits”) that can generally be used to offset future taxable income and
therefore reduce federal income tax obligations. However, the Company’s ability
to use the Tax Benefits will be adversely affected if there is an “ownership
change” of the Company as defined under Section 382 of the Internal Revenue
Code (“Section 382”). In general, an ownership change will occur if the
Company’s “5% shareholders” (as defined under Section 382) collectively
increase their ownership in the Company by more than 50% over a rolling
three-year period. The Plan was adopted to reduce the likelihood that the
Company’s use of its Tax Benefits could be substantially limited under
Section 382.
Pursuant
to the Plan, the Board declared a dividend of one preferred share purchase right
(each a “Right” and together the “Rights”) for each outstanding share of common
stock, par value $0.001 per share, of the Company (the “Common Stock”) under the
terms of the Plan. The dividend is payable on June 11, 2010 (the “Record Date”)
to the stockholders of record as of the close of business on that date. Each
Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Series A Junior Participating Preferred Stock, par
value $0.001 per share, of the Company (the “Preferred Stock”) at a price of
$8.00 per one one-hundredth of a share of Preferred Stock (the “Purchase
Price”), subject to adjustment or, in circumstances described below, to instead
acquire shares of Common Stock. The description and terms of the Rights are set
forth in the Plan.
Until the
earlier to occur of (i) the close of business on the tenth business day
following the first date of public announcement that a person, entity or group
(each, a “person”) has become an “Acquiring Person” (as defined in the Plan), by
acquiring ownership of 4.90% or more of the outstanding shares of Common Stock,
or that the Board has concluded that a person has become an Acquiring Person, or
(ii) the close of business on the tenth business day (or, except in certain
circumstances, such later date as may be specified by the Board) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the ownership by a
person (with certain exceptions) of 4.90% or more of the outstanding shares of
Common Stock (the earlier of such dates being called the “Distribution Date”),
the Rights will be evidenced, with respect to Common Stock certificates
outstanding as of the Record Date (or any book-entry shares in respect thereof),
only by such Common Stock certificate (or registration in book-entry form), and
the Rights will be transferable only in connection with the transfer of Common
Stock. Any person that owns 4.90% or more of the outstanding shares of Common
Stock on May 26, 2010 will not be deemed an Acquiring Person unless and until
such person acquires ownership of any additional shares of Common Stock. Under
the Plan, the Board may, in its sole discretion, exempt any person from being
deemed an Acquiring Person for purposes of the Plan if the Board determines that
such person’s ownership of Common Stock will not be likely to directly or
indirectly limit the availability of the Company’s Tax Benefits or is otherwise
in the best interests of the Company. The Board shall not have any
obligation, implied or otherwise, to grant such an exemption. For
purposes of the Plan, ownership is in general determined pursuant to applicable
rules and regulations of the Internal Revenue Code, including Section 382 and by
the definition of “beneficial ownership” of Rule 13d-3 of the Securities
Exchange Act of 1934, as amended.
The Plan
provides that, until the Distribution Date (or earlier expiration or redemption
of the Rights), the Rights will be attached to and will be transferred with and
only with the Common Stock. Until the Distribution Date (or the earlier
expiration or redemption of the Rights), new shares of Common Stock issued after
the Record Date upon transfer or new issuances of Common Stock will contain a
notation incorporating the Rights by reference (with respect to shares
represented by certificates) or notice thereof will be provided in accordance
with applicable law (with respect to uncertificated shares). Until the
Distribution Date (or earlier expiration of the Rights), the surrender for
transfer of any certificates representing shares of Common Stock outstanding as
of the Record Date, even without such notation, or the transfer by book-entry of
any uncertificated shares of Common Stock, will also constitute the transfer of
the Rights associated with such shares. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights (“Right
Certificates”) will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and the Rights will thereafter be
evidenced solely by such separate Right Certificates.
2
The
Rights are not exercisable until the Distribution Date. The Rights will expire
upon the earliest of (i) the close of business on May 26, 2014 unless that
date is advanced or extended, (ii) the time at which the Rights are
redeemed or exchanged under the Plan, (iii) the end of the calendar month
in which the Company’s 2011 annual meeting of stockholders is held if
stockholder approval of the Plan has not been received before such time,
(iv) the repeal of Section 382 or any successor statute if the Board
determines that the Plan is no longer necessary for the preservation of the
Company’s Tax Benefits, (v) the beginning of a taxable year of the Company
to which the Board determines that no Tax Benefits may be carried forward, or
(vi) such time as the Board determines that a limitation on the use of the Tax
Benefits under Section 382 would no longer be material to the
Company.
The
Purchase Price payable, and the number of shares of Preferred Stock or other
securities or property issuable, upon exercise of the Rights is subject to
adjustment from time to time to prevent dilution: (i) in the event of a
stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) upon the grant to holders of the Preferred Stock of
certain rights or warrants to subscribe for or purchase Preferred Stock at a
price, or securities convertible into Preferred Stock with a conversion price,
less than the then-current market price of the Preferred Stock or
(iii) upon the distribution to holders of the Preferred Stock of evidences
of indebtedness or assets (excluding regular periodic cash dividends or
dividends payable in Preferred Stock) or of subscription rights or warrants
(other than those referred to above).
The
number of outstanding Rights is subject to adjustment in the event of a stock
dividend on the Common Stock payable in shares of Common Stock or subdivisions,
consolidations or combinations of the Common Stock occurring, in any such case,
before the Distribution Date.
The terms
of the shares of Preferred Stock purchasable upon exercise of the Rights have
been previously authorized as set forth in the Company’s Amended Certificate of
Designation of Series A Junior Participating Preferred Stock. Because
of the nature of the Preferred Stock’s dividend and liquidation rights, the
value of the one one-hundredth interest in a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
In the
event that any person becomes an Acquiring Person, each holder of a Right, other
than Rights owned by the Acquiring Person, related persons, or transferees
(which will thereupon become null and void), will thereafter (subject to any
delay of exercisability approved by the Board) have the right to receive upon
exercise of a Right (including payment of the Purchase Price) that number of
shares of Common Stock having a market value of two times the Purchase
Price.
If any
person becomes an Acquiring Person, the Board, in its sole discretion, may
permit the Rights, other than Rights owned by the Acquiring Person, related
persons, or transferees (which will thereupon become void), to be exercisable
for 50% of the shares of Common Stock that would otherwise be purchasable upon
the payment of the Purchase Price in consideration of the surrender to the
Company of the exercised Rights.
At any
time after any person becomes an Acquiring Person but before the acquisition by
such Acquiring Person of ownership of 50% or more of the shares of Common Stock
then outstanding, the Board may exchange the Rights, other than Rights owned by
such Acquiring Person, related persons, or transferees (which will have become
null and void), in whole or in part, for shares of Common Stock or Preferred
Stock (or a series of the Company’s preferred stock having equivalent rights,
preferences and privileges), at an exchange ratio of one share of Common Stock,
or a fractional share of Preferred Stock of equivalent value, per Right (subject
to adjustment).
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional shares of Common Stock or Preferred Stock will be issued
(other than fractions of Preferred Stock which are integral multiples of one
one-hundredth of a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), and in lieu thereof an adjustment
in cash will be made based on the current market price of the Preferred Stock or
the Common Stock.
At any
time before the time an Acquiring Person becomes such, the Board may redeem the
Rights in whole, but not in part, at a price of $0.001 per Right (the
“Redemption Price”) payable, at the option of the Company, in cash, shares of
Common Stock or such other form of consideration as the Board shall determine.
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price as rounded to the nearest $0.01.
3
For so
long as the Rights are then redeemable, the Company may, except with respect to
the Redemption Price, amend the Plan in any manner. After the Rights are no
longer redeemable, the Company may, except with respect to the Redemption Price,
amend the Plan in any manner that does not adversely affect the interests of
holders of the Rights (other than the Acquiring Person, related persons, or
transferees).
Until a
Right is exercised or exchanged, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
This
summary description of the Plan does not purport to be complete and is qualified
in its entirety by reference to the Plan, which is incorporated herein by
reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with
the Securities and Exchange Commission on June 2, 2010.
Tax
Benefit Preservation Plan, dated as of May 26, 2010, between Autobytel
Inc. and Computershare Trust Company, N.A., as rights agent, together with
the following exhibits thereto: Exhibit A – Form of Right
Certificate; Exhibit B – Summary of Rights to Purchase Shares of Preferred
Stock of Autobytel Inc. (incorporated by reference to Exhibit 4.1 to
the Company’s Current Report on Form 8-K dated May 26, 2010, and
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934,
the registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
Tax
Benefit Preservation Plan, dated as of May 26, 2010, between Autobytel
Inc. and Computershare Trust Company, N.A., as rights agent, together with
the following exhibits thereto: Exhibit A – Form of Right Certificate;
Exhibit B – Summary of Rights to Purchase Shares of Preferred Stock of
Autobytel Inc. (incorporated by reference to Exhibit 4.1 to the
Company’s Current Report on Form 8-K dated May 26, 2010, and filed
June 2, 2010).
