EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FIRSTAMERICA AUTOMOTIVE, INC.
FirstAmerica Automotive, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is FirstAmerica Automotive, Inc., the
corporation was originally incorporated under the name of FirstAmerica
Automotive, Inc. Delaware, and the original Certificate of Incorporation of the
corporation was filed with the Secretary of State of the State of Delaware on
June 16, 1997.
2. The amendment to the Certificate of Incorporation of the corporation
was filed with the Secretary of State of the State of Delaware on July 8, 1997.
The Certificate of Designation of Preferences of 8% Cumulative Redeemable
Preferred Stock Due 2005 and the Certificate of Designation of Preferences of
Redeemable Preferred Stock Due 2005 of the Corporation were also filed with the
Secretary of State of the State of Delaware on July 8, 1997.
3. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, this Amended and Restated Certificate of Incorporation (the
"Restated Certificate") restates and integrates and further amends the
provisions of the Certificate of Incorporation of this corporation.
4. The text of the Restated Certificate as heretofore amended or
supplemented is hereby restated and further amended to read in its entirety as
follows:
FIRST: The name of this corporation is FirstAmerica Automotive, Inc.
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(hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the
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State of Delaware is Incorporating Services, Ltd., 15 East North Street, in the
City of Dover, County of Kent. The name of the registered agent at that address
is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
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activity for which a corporation may be organized under the General Corporation
Law of Delaware.
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FOURTH: Upon the effectiveness of this Restated Certificate (the
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"Effective Time") and without further action on the part of the Corporation or
the holders of its stock, each share of the Class A Common Stock, each share of
the Class B Common Stock and each share of the Class C Common Stock of the
Corporation outstanding immediately prior thereto, shall be reclassified,
changed and converted as and into, one (1) fully paid and nonassessable share of
Common Stock of the Corporation, with the rights and privileges found in this
Restated Certificate, and at such time each holder of record of the Class A
Common Stock, Class B Common Stock and Class C Common Stock of the Corporation
shall, without further action, be and become the holder of one (1) share of the
Common Stock of the Corporation (hereinafter sometimes referred to as the
"Reclassification"). Following the Effective Time, each stock certificate
representing shares of Class A Common Stock, Class B Common Stock or Class C
Common Stock outstanding immediately prior to the Effective Time shall represent
the number of shares of Common Stock into which the shares of Class A Common
Stock, Class B Common Stock or Class C Common Stock represented by each such
stock certificate shall become hereunder.
FIFTH: Also, at the Effective Time and without further action on the part
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of the Corporation or the holders of its stock, each share of the Common Stock
of the Corporation outstanding pursuant to the Reclassification as described
above, shall be changed and converted into .435993 of a fully paid and
nonassessable share of the Common Stock of the Corporation.
SIXTH:
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(a) The Corporation is authorized to issue two classes of shares,
designated "Preferred Stock" and "Common Stock," respectively. The total number
of shares of Preferred Stock authorized to be issued is Ten Million
(10,000,000), par value $0.00001 per share. The total number of shares of
Common Stock authorized to be issued is One Hundred Million (100,000,000), par
value $0.00001 per share.
(b) The Preferred Stock may be divided into such number of series as
the Board of Directors may determine. The Board of Directors is authorized to
determine and alter the rights, preferences, privileges and restrictions granted
to and imposed upon any wholly unissued series of Preferred Stock, and to fix
the number of shares of any series of Preferred Stock and the designation of any
such series of Preferred Stock. The Board of Directors, within the limits and
restrictions stated in any resolution or resolutions of the Board of Directors
originally fixing the number of shares constituting any series, may increase or
decrease (but not below the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issue of shares of that
series.
SEVENTH: Subject to preferences that may be applicable to any Preferred
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Stock outstanding at the time, the holders of outstanding shares Common Stock
will be entitled to the following:
(a) Subject to the prior rights of holders of all classes of stock at
the time outstanding having prior rights as to dividends, the holders of the
Common Stock shall be entitled to receive, when and as declared by the Board of
Directors, out of any assets of this Corporation legally available there for,
such dividends as may be declared from time to time by the Board of Directors.
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(b) Upon the liquidation, dissolution or winding up of this
Corporation, the holders of Common Stock will be entitled to share ratably in
all assets remaining after payment of liabilities and the liquidation of any
Preferred Stock.
(c) The holders of Common Stock will not be entitled to any
preemptive, conversion or redemption rights.
(d) The holder of each share of Common Stock shall have the right to
one vote, and shall be entitled to notice of any stockholders' meeting in
accordance with the Bylaws of this Corporation, and shall be entitled to vote
upon such matters and in such manner as may be provided by law.
EIGHTH: The following provisions are inserted for the management of the
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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:
(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 them by statute or by this Restated
Certificate or the Bylaws 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.
(b) The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
(c) On and after the closing date of the first sale of the
Corporation's Common Stock pursuant to a firmly underwritten registered public
offering (the "IPO"), any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be
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effected by any consent in writing by such stockholders. Prior to such sale,
unless otherwise provided by law, any action which may otherwise be taken at any
meeting of the stockholders may be taken without a meeting and without prior
notice, if a written consent describing such actions is signed by the holders of
outstanding shares having not less than the minimum number of votes which would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
(d) Special meetings of stockholders of the Corporation may be called
only (i) by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption).
NINTH:
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(a) The number of directors shall initially be set at five (5) and,
thereafter, shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board for adoption). Upon the closing of the IPO, the directors shall be
divided into three classes with the term of office of the first class (Class I)
to expire at the first annual meeting of the stockholders following the IPO; the
term of office of the second class (Class II) to expire at the second annual
meeting of stockholders held following the IPO; the term of office of the third
class (Class III) to expire at the third annual meeting of stockholders; and
thereafter for each such term to expire at each third succeeding annual meeting
of stockholders after such election. Subject to the rights of the holders of
any series of Preferred Stock then outstanding, a vacancy
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resulting from the removal of a director by the stockholders as provided in
paragraph (c) below may be filled at a special meeting of the stockholders held
for that purpose. All directors shall hold office until the expiration of the
term for which elected, and until their respective successors are elected,
except in the case of the death, resignation, or removal of any director.
(b) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation or other cause (other than removal from office
by a vote of the stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders
at which the term of office of the class to which they have been elected
expires, and until their respective successors are elected, except in the case
of the death, resignation, or removal of any director. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
(c) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, with or without cause, but only by the
affirmative vote of the holders of at least a majority of the voting power of
all of the then outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class. Vacancies in the Board of Directors resulting from such removal may be
filled by a majority of the directors then in office, though less than a quorum,
or by the stockholders as provided in paragraph (a) above. Directors so chosen
shall hold office for a term expiring at the next annual meeting of stockholders
at which the term of office of the class to which they have been elected
expires, and
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until their respective successors are elected, except in the case of the death,
resignation, or removal of any director.
TENTH: The Board of Directors is expressly empowered to adopt, amend or
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repeal Bylaws of the Corporation and the Certificate of Incorporation. Any
adoption, amendment or repeal of Bylaws of the Corporation or the Certificate of
Incorporation by the Board of Directors shall require the approval of a majority
of the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board). The
stockholders shall also have power to adopt, amend or repeal the Bylaws of the
Corporation or the Certificate of Incorporation. Any adoption, amendment or
repeal of Bylaws of the Corporation or amendment of the Certificate of
Incorporation by the stockholders shall require, in addition to any vote of the
holders of any class or series of stock of the Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of
the then outstanding shares of the capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class.
ELEVENTH: A director of the Corporation shall not be personally liable to
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the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
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If the Delaware General Corporation Law is hereafter amended to authorize
the further elimination or limitation of the liability of a director, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
ELEVENTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
TWELFTH:
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Transactions between the Corporation and its affiliates must be no less
favorable to the Corporation than would be available to the Corporation in
arm's-length transactions dealing with an unrelated third party. In addition,
the Corporation may not enter into transactions between the Corporation and its
affiliates involving aggregate payments in excess of $500,000 unless (i) the
transaction has been approved by a majority of members of the Corporation's
Board of Directors and a majority of the Corporation's independent directors or
(ii) the Corporation has received an opinion as to the financial fairness of the
transaction from an investment banking or appraisal firm of national standing.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been executed by the undersigned duly authorized officer of
the Corporation on this __th day of ________, 1999.
FirstAmerica Automotive, Inc.
a Delaware corporation
By:
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Thomas A. Price, President
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