AMENDMENT NO. 2 TO TAX BENEFIT PRESERVATION PLAN
Exhibit 4.1
AMENDMENT NO. 2
TO
This
Amendment No. 2 to Tax Benefit Preservation Plan
(“Amendment”) is
entered into between Autobytel Inc., a Delaware corporation
(“Company”), and
Computershare Trust Company, N.A., as rights agent
(“Rights Agent”)
effective as of April 13, 2017.
Background
The
Company and the Rights Agent are parties to that certain Tax
Benefit Preservation Plan dated as of May 26, 2010, as amended by
Amendment ▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇ amended, the
“Plan”). The
Board of Directors of the Company deems it advisable and in the
best interests of the Company and its stockholders to amend the
Plan to extend its maturity date and to increase the Purchase Price
(as defined in the Plan). No Person (as defined in the Plan) has
become an Acquiring Person (as defined in the Plan).
1.
Amendments. Pursuant to and in
accordance with Section 27 of the Plan, the Plan is hereby amended
as follows:
(a)
The first paragraph
of Paragraph (a) of Section 1 of the Plan is amended in its
entirety to read as follows:
“Acquiring
Person” shall mean any
Person (other than any Exempt Person) that has become, in itself or
together with all Affiliates of such Person, the Beneficial Owner
of 4.90% or more of the shares of Common Stock then
outstanding; provided, however,
that, subject to the following
sentence, any Existing Holder (as defined below) will not be deemed
to be an Acquiring Person for any purpose of this Plan on and after
the date on which the adoption of this Plan is first publicly
announced; and provided,
further, that a Person will
not be deemed to have become an Acquiring Person solely as a result
of (i) a reduction in the number of shares of Common Stock
outstanding, (ii) the exercise of any options, warrants, rights or
similar interests (including restricted stock) granted by the
Company to its directors, officers and employees, (iii) any
unilateral grant of any security by the Company or any issuance by
the Company of shares of its capital stock to such Person, or (iv)
an Exempt Transaction.”
(b)
The Paragraph (j)
of Section 1 of the Plan is amended in its entirety to read as
follows:
“Certificate of
Incorporation” shall mean the Fifth Amended and
Restated Certificate of Incorporation of the Company, as filed with
the Secretary of State of the State of Delaware on December 14,
1998, together with the Certificate of Amendment of the Certificate
of Incorporation as filed with the Secretary of State of the State
of Delaware on March 1, 1999, the Second Certificate of Amendment
of the Certificate of Incorporation as filed with the Secretary of
State of the State of Delaware on July 22, 1999, the Third
Certificate of Amendment to the Certificate of Incorporation as
filed with the Secretary of State of the State of Delaware on
August 14, 2001, the Amended Certificate of Designation of Series A
Junior Participating Preferred Stock as filed with the Secretary of
State of the State of Delaware on April 24, 2009, the Fourth
Certificate of Amendment to Fifth Amended and Restated Certificate
of Incorporation of the Company, filed with the Secretary of State
of the State of Delaware on July 10, 2012, the Fifth Certificate of
Amendment to Fifth Amended and Restated Certificate of
Incorporation of the Company, filed with the Secretary of State of
the State of Delaware on July 3, 2013, and the Certificate of
Designations of Series B Junior Participating Convertible Preferred
Stock of the Company, filed with the Secretary of State of the
State of Delaware on October 1, 2015, as the same may be amended
and restated from time to time.”
(c)
Paragraph (m) of
Section 1 of the Plan is deleted in its entirety and amended to
read as follows:
“[Reserved]”
(d)
Paragraph (rr) of
Section 1 of the Plan is deleted in its entirety and amended to
read as follows:
“[Reserved]”
(e)
Paragraph (a),
clause (i) of Section 7 of the Plan is amended in its entirety to
read as follows:
“(i) the
Close of Business on May 26, 2020,”
(f)
Paragraph (a),
clause (iv) of Section 7 of the Plan is amended in its entirety to
read as follows:
“(iv) the end
of the calendar month in which occurs the final adjournment of the
Company’s 2017 annual meeting of stockholders, if stockholder
approval of this Plan has not been received at such
meeting,”
(g)
The last sentence
of paragraph (a) of Section 7 of the Plan is amended in its
entirety to read as follows:
“Until such
notice is received by the Rights Agent, the Rights Agent may
presume conclusively for all purposes, prior to the Close of
Business on May 26, 2020, that the Expiration Date has not
occurred.”
(h)
The first sentence
of paragraph (b) of Section 7 of the Plan is amended in its
entirety to read as follows;
“The Purchase
Price shall be $73.00 for each one one-hundredth of a share of
Preferred Stock purchasable upon the exercise of a Right (the
“Purchase
Price”).”
(i)
Each of the Legend
and paragraph one of the Form of Right Certificate, attached as
Exhibit A to the
Plan, is amended so that the references to “May 26,
2017” are replaced with “May 26,
2020.”
2. Effect of this Amendment. It is
the intent of the parties that this Amendment constitutes an
amendment of the Plan as contemplated by Section 27 thereof. Except
as provided herein, the Plan is in all other respects ratified and
confirmed and shall continue in full force and effect as amended
hereby. This Amendment shall be deemed effective as of the date
hereof as if executed by both parties hereto on such
date.
3. Counterparts. This Amendment
may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute one and the
same instrument.
4. Governing Law. This Amendment
shall be deemed to be a contract made under the laws of the State
of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such state applicable to contracts
to be made and performed entirely within such state.
5. Severability. If any term,
provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid,
illegal or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated.
6. Descriptive Headings. The
captions herein are included for convenience of reference only, do
not constitute a part of this Amendment and shall be ignored in the
construction and interpretation hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date set forth above.
|
|
|
|
By:
|
/s/▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Executive
Vice President, Chief Legal and Administrative Officer and
Secretary
|
|
|
|
|
|
|
|
|
|
|
COMPUTERSHARE
TRUST COMPANY, N.A.
|
|
|
|
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title:
Manager, Contract Administration
|