Attached files
file | filename |
---|---|
EX-10 - IRREVOCABLE PROXY - AutoWeb, Inc. | ex10-2.htm |
EX-10 - TAX BENEFIT PRESERVATION PLAN EXEMPTION AGREEMENT - AutoWeb, Inc. | ex10-1.htm |
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 12,
2021
AutoWeb, Inc.
(Exact name of registrant as specified in its charter)
Delaware
|
|
1-34761
|
|
33-0711569
|
|
|
(State
or other jurisdiction of incorporation)
|
|
(Commission
File Number)
|
|
(IRS
Employer Identification No.)
|
|
|
400 North Ashley Drive, Suite 300
Tampa, Florida 33602-4314
|
||||||
(Address
of principal executive offices) (Zip Code)
|
(949) 225-4500
Registrant’s
telephone number, including area code
(Former
name or former address, if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐
|
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|
|
☐
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
☐
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
|
|
☐
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
|
Securities registered pursuant to Section 12(b) of the
Act:
Title of each class
|
Trading Symbol
|
Name of each exchange on which registered
|
Common Stock, par value $0.001 per share
|
AUTO
|
The Nasdaq Capital Market
|
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2
of this chapter).
Emerging growth company
|
|
☐
|
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act.
|
|
☐
|
|
Item 1.01
|
Entry into a Material Definitive Agreement.
|
On May
12, 2021, AutoWeb, Inc., a Delaware corporation
(“AutoWeb”
or “Company”) entered into a Tax
Benefit Preservation Plan Exemption Agreement (“Exemption Agreement”) with Global
Value Investment Corp., a Delaware corporation (“Requesting Person”).
Tax Benefit Preservation Plan
As
previously reported, effective as of May 26, 2010, the Company
adopted a Tax Benefit Preservation Plan, which plan was amended by
Amendment No. 1 to Tax Benefit Preservation Plan dated as of April
14, 2014, Amendment No. 2 to Tax Benefit Preservation Plan dated
April 13, 2017, and Amendment No. 3 dated as of March 31, 2020, and
the number of rights thereunder adjusted by that Certificate of
Adjustment dated as of July 12, 2012 (the original plan, as amended
and adjusted, is collectively referred to herein as the
“Plan”). The
Board of Directors of the Company (“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. The Plan is intended to deter any
“Person” (as defined in the Plan) from becoming an
“Acquiring
Person” (as defined in the Plan) and thereby
jeopardizing the Company’s Tax Benefits. In general, an
Acquiring Person is any Person, itself or together with all
“Affiliates” (as
defined in the Plan) of such Person, that becomes the
“Beneficial
Owner” (as defined in the Plan) of 4.9% or more of the
Company’s outstanding “Common Stock” (as defined in the
Plan). 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 (“Plan
Exemption”). The Board does not have any
obligation, implied or otherwise, to grant any Plan
Exemptions.
The
foregoing description of the Plan does not purport to be complete
and is qualified in its entirety by reference to the Tax Benefit
Preservation Plan dated as of May 26, 2010, by and between Company
and Computershare Trust Company, N.A., as rights agent, together
with the following exhibits thereto: Exhibit A – Form of
Right Certificate; and Exhibit B – Summary of Rights to
Purchase Shares of Preferred Stock of Company, incorporated by
reference to Exhibit 4.1 to the Current Report on Form
8-K filed with the SEC on June 2, 2010 (SEC File No.
000-22239); Amendment No. 1 to Tax Benefit Preservation Plan dated
as of April 14, 2014, between Company and Computershare Trust
Company, N.A., as rights agent, incorporated by reference
to Exhibit 4.1 to the Current Report on Form 8-K filed
with the SEC on April 16, 2014 (SEC File No. 001-34761);
Amendment No. 2 to Tax Benefit Preservation Plan dated as of
April 13, 2017, between Company and Computershare Trust
Company, N.A., as rights agent, incorporated by reference
to Exhibit 4.1 to the Current Report on Form 8-K filed
with the SEC on April 14, 2017 (SEC File No. 001-34761); Amendment
No. 3 to Tax Benefit Preservation Plan dated as of March 31, 2020,
between Company and Computershare Trust Company, N.A., as rights
agent, incorporated by reference to Exhibit 4.1 to the
Current Report on Form 8-K filed with the SEC on April 2, 2020 (SEC
File No. 001-34761); Certificate of Adjustment Under Section 11(m)
of the Tax Benefit Preservation Plan, incorporated by reference
to Exhibit 4.3 to the Quarterly Report on Form 10-Q for
the Quarterly Period ended September 30, 2012 filed with the SEC on
November 8, 2012 (SEC File No. 001-34761).
Summary Description of the Exemption Agreement
The
Requesting Person informed the Company that as of May 12, 2021
(“Exemption Agreement
Effective Date”), the Requesting Person, together with
all of its Affiliates and Associates, beneficially owned 630,853
shares of Common Stock, or approximately 4.7% of the
Company’s outstanding Common Stock, as of that date
(“Current Beneficially Owned
Shares”). The Requesting Person also informed the
Company that if permitted to do so under the Plan, the Requesting
Person would be interested in acquiring Additional Beneficially
Owned Shares (as defined below) of Common Stock in excess of the
Current Beneficially Owned Shares. The Requesting Person requested
that the Board consider exercising its discretionary authority
under the Plan to deem the Requesting Person and its Affiliates not
to be an Acquiring Person and to grant a Plan Exemption for the
Requesting Person and its Affiliates to acquire Beneficial
Ownership of Additional Beneficially Owned Shares of Common Stock
in excess of the Current Beneficially Owned Shares.
The
Board considered the Requesting Person’s request and granted
a Plan Exemption to acquire shares of Common Stock in excess of the
Current Beneficially Owned Shares provided that the aggregate
number of shares of Common Stock Beneficially Owned by the
Requesting Person, any other Requesting Persons (as defined below)
that may become a party to the Exemption Agreement in accordance
with the terms thereof and their respective Affiliates and
Associates does not collectively exceed 875,281 shares of Common
Stock, representing approximately 6.5% of the Company’s
outstanding shares of Common Stock as of the Exemption Agreement
Effective Date, subject to and in reliance upon the Requesting
Person and any other such Requesting Persons entering into and
remaining in compliance with the terms and conditions set forth in
the Exemption Agreement.
Under
the Exemption Agreement, the Requesting Person, any other persons
that may become a party to the Exemption Agreement pursuant to the
terms thereof, and their respective Affiliates (collectively,
“Requesting
Persons”) agreed that at any meeting (whether annual
or special and whether or not an adjourned or postponed meeting) of
the stockholders of the Company, and in any action by written
consent of the stockholders of the Company, the Requesting Persons
shall (i) appear at the meeting or otherwise cause any and all of
the portion of Shares (as defined in the Exemption Agreement) that
exceeds the number of shares of Common Stock that equals (1) the
number of shares of Common Stock that equals 4.9% of the shares of
Common Stock outstanding as of the Exemption Agreement Effective
Date minus (2) one (1) share of Common Stock (“Exemption Shares”) to be counted
as present thereat for purposes of establishing a quorum; (ii) vote
(or cause to be voted) any and all Exemption Shares the same
proportion (for or against) as the shares actually voted for or
against such matters by the stockholders of the Company, other than
the Requesting Persons and their respective Affiliates; and (iii)
granted representatives of the Company an irrevocable proxy
(“Irrevocable
Proxy”) to vote the Exemption Shares in accordance
with the foregoing instructions. The Requesting Persons further
agreed not to enter into any proxy, agreement or understanding with
any person or entity the effect of which would be materially
inconsistent with or violative of any provision contained
herein.
In
addition to the foregoing voting agreement and proxies, the
Requesting Persons agreed that they will not, in any manner,
directly or indirectly, (except: (i) pursuant to a negotiated
transaction approved by the Board; or (ii) as may otherwise be
approved by the Board):
●
make,
effect, initiate, cause or participate in (i) any acquisition of
Beneficial Ownership of any securities of the Company or any
securities of any Subsidiary (as defined in the Plan) or other
Affiliate or Associate (as defined in the Plan) of the Company
(except as such transfers between Requesting Persons in compliance
with Section 2.2 of the Exemption Agreement), (ii) any Company
Acquisition Transaction (as defined in the Exemption Agreement), or
(iii) any “solicitation” of “proxies” (as
those terms are defined in Rule 14a-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended)
or consents with respect to any securities of the Company, or take
any action which might force the Company to make a public
announcement regarding any of these types of matters;
●
nominate
or seek to nominate any person to the Board or otherwise act, alone
or in concert with others, to seek to control or influence the
management, Board or policies of the Company; provided that a Requesting Person may
seek privately with the Board or the Company’s Chief
Executive Officer to influence the decisions made by the existing
management or Board in a manner (1) that is not disclosed publicly
and (2) would not force the Company to make a public announcement
regarding such attempts to influence the decisions of existing
Company management or the Board;
●
request
or propose that the Company (or its directors, officers, employees
or agents), directly or indirectly, amend or waive any provision of
these standstill provisions of the Exemption Agreement unless such
request or proposal is made privately to the Board in a manner (1)
that is not disclosed publicly and (2) that would not force the
Company to make a public announcement regarding such request or
proposal;
●
agree
or offer to take, or encourage or propose (publicly or otherwise)
the taking of, any action referred to in these standstill
provisions of the Exemption Agreement;
●
assist,
induce or encourage any other Person to take any action referred to
in these standstill provisions of the Exemption Agreement;
or
●
enter
into any discussions or arrangements with any third party with
respect to the taking of any action referred to in these standstill
provisions of the Exemption Agreement.
The
Exemption Agreement allows the Requesting Persons as a group to
acquire Beneficial Ownership of additional shares of Common Stock
(“Additional Beneficially
Owned Shares”) as long as (i) the collective
Beneficial Ownership of the Requesting Persons and their respective
Affiliates and Associates does not exceed 875,281 shares of Common
Stock (which number of shares represents approximately 6.5% of the
Company’s outstanding Common Stock as of the Exemption
Agreement Effective Date); (ii) the Requesting Persons are in
compliance with all of the provisions of the Exemption Agreement as
of the acquisition date of any Additional Beneficially Owned
Shares; (iii) the representations and warranties of the Requesting
Persons in the Exemption Agreement shall be true, accurate and
complete as if made as of the date of any such acquisition of
Additional Beneficially Owned Shares; (iv) the acquisition of
Additional Beneficially Owned Shares would not result in any Person
who is not a Requesting Person or any Affiliate or Associate of a
Requesting Person, individually or collectively, constituting a 5%
shareholder under Section 382; and (v) the acquisition of the
Additional Beneficially Owned Shares is completed within 120 days
of the Exemption Agreement Effective Date.
The
Exemption Agreement will remain in effect until the earliest to
occur of the following (as a result of which the Exemption
Agreement shall immediately terminate) (i) at any time by written
consent of each of the Requesting Persons and the Company; (ii)
automatically upon the termination of the Plan whether by the Board
or upon its own terms, unless a substitute or successor tax benefit
preservation or other stockholder rights plan is implemented, in
which case the Exemption Agreement shall not terminate; (iii)
automatically without any further action by the parties hereto, at
such time as the Requesting Persons (together with their respective
Affiliates and Associates) collectively Beneficially Own less than
4.9% of the Company’s then outstanding shares of Common
Stock.
The
foregoing description of the Exemption Agreement and Irrevocable
Proxy does not purport to be complete and is qualified in its
entirety by reference to the full text of the Exemption Agreement
and the Irrevocable Proxy, which are filed with this Current Report
on Form 8-K as Exhibits 10.1 and 10.2, respectively, and
incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d)
Exhibits
Tax
Benefit Preservation Plan Exemption Agreement, effective as of May
12, 2021, by and between AutoWeb, Inc. and Global Value Investment
Corp.
Irrevocable
Proxy dated as of May 12, 2021 by Global Value Investment
Corp.
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date:
May 17, 2021
|
AUTOWEB,
INC.
|
|
|
By:
|
/s/
Glenn E.
Fuller
|
|
|
Glenn
E. Fuller,
Executive
Vice President, Chief Legal Officer and Secretary
|