Attached files
Exhibit 3.3
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;
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(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.
(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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IN WITNESS WHEREOF, the Corporation has
caused this Amended Certificate of Designation of Series A Junior
Participating Preferred Stock to be executed by its duly authorized
officer on October 9, 2017.
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AUTOWEB,
INC.
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By:
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/s/
Glenn
E. Fuller
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Name:
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Glenn E.
Fuller
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Title:
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Executive Vice
President, Chief Legal and Administrative Officer and
Secretary
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