SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SPURLOCK INDUSTRIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Virginia 84-1019856
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
5090 General Mahone Highway, Waverly, Virginia 23890
(Address of principal executive offices) (Zip Code)
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If this Form relates to the registration If this Form relates to the
of a class of debt securities and is registration of a class of debt
effective upon filing pursuant to securities and is to become effective
General Instruction A(c)(1) please simultaneously with the effectiveness
check the following box. [_] of a concurrent registration statement
under the Securities Act of 1933
pursuant to General Instruction
A(c)(2) please check the following
box. [_]
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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None None
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, No Par Value
(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
This registration statement relates to the registration under Section
12(g) of the Securities Exchange Act of 1934, as amended, of shares of the
common stock, no par value per share (the "Common Stock"), of Spurlock
Industries, Inc., a Virginia corporation (the "Registrant"). The description of
the Common Stock to be registered hereunder is set forth as follows:
Authorized and Outstanding Capital Stock
The Registrant's authorized capital stock consists of 50,000,000 shares
of Common Stock and 5,000,000 shares of preferred stock, no par value per share
(the "Preferred Stock"). On July 15, 1996, there were 6,725,066 shares of the
Common Stock and no shares of the Preferred Stock issued and outstanding. All of
the outstanding shares of the Common Stock are validly issued, fully paid and
non-assessable.
Common Stock. The holders of the Common Stock are entitled to one vote
for each share on all matters voted on by shareholders, including elections of
directors, and, except as otherwise required by law or provided in any
resolution adopted by the Board of Directors with respect to any series of the
Preferred Stock, the holders of such shares exclusively possess all voting
power. The Amended and Restated Articles of Incorporation of the Registrant (the
"Articles") do not provide for cumulative voting in the election of directors.
Subject to any preferential rights of any outstanding series of the Preferred
Stock created by the Board of Directors from time to time, the holders of the
Common Stock are entitled to such dividends as may be declared from time to time
by the Board of Directors from funds available therefor, and upon liquidation
are entitled to receive pro rata all assets of the Registrant available for
distribution to such holders.
Preferred Stock. Under the Articles, the Board of Directors, without
shareholder approval, is authorized to issue shares of the Preferred Stock in
one or more series and to designate, with respect to each such series of the
Preferred Stock, the number of shares in each such series, the dividend rates,
preferences and date of payment, whether or not dividends shall be cumulative
and, if cumulative, the date or dates from which the same shall be cumulative,
voluntary and involuntary liquidation preferences, the availability of
redemption and the prices at which it may occur, the rights, if any, and the
terms and conditions upon which shares can be converted into or exchanged for
shares of any other class or series, and the voting rights, if any. Any issued
Preferred Stock may be senior to the Common Stock as to dividends and as to
distribution in the event of liquidation, dissolution or winding up of the
Registrant. The ability of the Board of Directors to issue the Preferred Stock,
while providing flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, adversely affect the voting power
of holders of the Common Stock.
The Registrant believes that the Preferred Stock will provide the
Registrant with flexibility in structuring possible future financings and
acquisitions, and in meeting other corporate needs which might arise. Having
such authorized shares available for issuance will allow the Registrant to issue
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shares of the Preferred Stock without the expense and delay of a special
shareholders' meeting. The authorized shares of the Preferred Stock, as well as
shares of the Common Stock, will be available for issuance without further
action by shareholders, unless such action is required by applicable law or the
rules of any stock exchange or stock market on which the Registrant's securities
may be listed. Although the Board of Directors has no intention at the present
time of doing so, it could issue a series of the Preferred Stock that, subject
to certain limitations imposed by the securities laws, could impede the
completion of a merger, tender offer, takeover attempt or other transaction that
some, or a majority, of the shareholders might believe to be in their best
interests or in which shareholders might receive a premium for their stock over
the then current market price of such stock. This impediment might be
accomplished by, among other things, selling a substantial number of shares of
the Preferred Stock to persons who have an arrangement with the Registrant
concerning the voting of such shares, or by distributing shares of the Preferred
Stock, or rights to receive such shares, to the shareholders. In this respect,
certain corporations have issued as a dividend to their common stockholders
shares of preferred stock or rights to acquire shares of preferred stock having
terms designed to encourage negotiated rather than unilateral takeover proposals
and to protect against the adverse consequences of certain abusive takeover
tactics such as open market accumulation programs and partial and front-end
loaded takeovers and freezeouts. The shares of authorized Preferred Stock would
be available for such purposes, and the Board of Directors from time to time may
consider issuing shares of the Preferred Stock for such purposes. The ability to
issue shares of the Preferred Stock also would allow the Board of Directors to
issue shares only to shareholders supportive of management's position. This
ability could provide management with the means to block a business combination
considered desirable by some shareholders. In addition, the Board of Directors
could authorize the issuance of a series of the Preferred Stock that votes as a
class, either separately or with the holders of the Common Stock, on any merger,
sale or exchange of assets by the Registrant or any other extraordinary
corporate transaction. The Board of Directors will make any determination to
issue such shares based on its judgment as to the best interests of the
Registrant and its shareholders at the time of issuance.
Preemptive Rights. No holder of any share of the Common Stock or the
Preferred Stock, now or hereafter authorized, shall have any preemptive right to
subscribe to any securities of the Registrant of any kind or class.
Liability and Indemnification of Directors and Officers
As permitted by the Virginia Stock Corporation Act (the "Virginia
Act"), the Articles contain provisions which indemnify directors and officers of
the Registrant to the full extent permitted by Virginia law and seek to
eliminate the personal liability of directors and officers for monetary damages
to the Registrant or its shareholders for breach of their fiduciary duties,
except to the extent that such indemnification or elimination of liability is
prohibited by the Virginia Act. These provisions do not limit or eliminate the
rights of the Registrant or any shareholder to seek an injunction or any other
non-monetary relief in the event of a breach of a director's or officer's
fiduciary duty. In addition, these provisions apply only to claims against a
director or officer arising out of his role as a director or officer and do not
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relieve a director or officer from liability if he engaged in willful misconduct
or a knowing violation of the criminal law or any federal or state securities
law.
In addition, the Articles provide for the indemnification of both
directors and officers for expenses incurred by them in connection with the
defense or settlement of claims asserted against them in their capacities as
directors and officers. In certain cases, this right of indemnification extends
to judgments or penalties assessed against them. The Registrant may limit its
exposure to liability for indemnification of directors and officers by
purchasing directors and officers liability insurance coverage.
The purpose of these provisions is to assist the Registrant in
retaining qualified individuals to serve as directors by limiting their exposure
to personal liability for serving as such. On December 21, 1995, Air Resources
Corporation ("Air Resources"), the predecessor to the Registrant pursuant to an
Agreement and Plan of Merger, dated as of February 15, 1996, between Air
Resources and the Registrant (the "Merger Agreement"), and effective July 15,
1996 (the "Effective Date"), entered into an Indemnification Agreement with
Phillip S. Sumpter upon his appointment to the Board of Directors. The
Indemnification Agreement provides for the indemnification of Mr. Sumpter
against claims, losses, liabilities, damages, costs and expenses that he may
suffer as a result of his service as a director of Air Resources, to the full
extent that such indemnification is permitted and not prohibited by applicable
federal or state law, including securities law, or the Certificate of
Incorporation of Air Resources. The Registrant has succeeded to and assumed all
the rights and obligations of Air Resources under the Indemnification Agreement.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act), may be permitted to officers and
directors pursuant to the foregoing provisions or otherwise, the Registrant
understands that it is the opinion of the Securities and Exchange Commission
that such indemnification is against public policy as expressed in the
Securities Act and therefore unenforceable. In the event that a claim for
indemnification with respect to the capital stock of the Registrant is asserted
by an officer or a director (except for the payment of expenses incurred in the
successful defense of any claim), the Registrant, unless the question has
already been settled by controlling precedent, will submit to a court of
appropriate jurisdiction the question of whether or not such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
Anti-Takeover Effects of Certain Provisions of the Articles and Bylaws
The Articles contain several provisions that will make more difficult
the acquisition of control of the Registrant by various means, such as a tender
offer or open market purchases not approved by the Board of Directors or a proxy
contest. The Bylaws of the Registrant (the "Bylaws") also contain provisions
that could have an anti-takeover effect.
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The purposes of these provisions are to discourage certain types of
non-negotiated transactions and to encourage persons seeking to acquire control
of the Registrant to consult first with the Board of Directors to negotiate the
terms of any proposed business combination or offer. The provisions are designed
to reduce the vulnerability of the Registrant to an unsolicited proposal for a
takeover that does not contemplate the acquisition of all outstanding shares or
is otherwise unfair to shareholders of the Registrant, or an unsolicited
proposal for the restructuring or sale of all or part of the Registrant.
These provisions will help ensure that the Board of Directors, if
confronted by a proposal from a third party, will have sufficient time to review
the proposal and any alternatives thereto and to act in what it believes to be
the best interests of the shareholders.
These provisions may make difficult and may discourage a merger, tender
offer or proxy fight even if such a transaction could prove favorable to the
interests of the shareholders and may delay or frustrate the assumption of
control by a holder of a large block of the Registrant's capital stock and the
removal of incumbent management, even if such removal might be beneficial to
shareholders. Furthermore, these provisions may deter or could be utilized to
frustrate a future takeover attempt which is not approved by the incumbent Board
of Directors, but which the holders of a majority of the shares may deem to be
in their best interests or in respect of which shareholders may receive a
substantial premium for their stock over prevailing market prices of such stock.
By discouraging takeover attempts, these provisions might have the incidental
effect of inhibiting certain changes in management (some or all of the members
of which might be replaced in the course of a change of control) and also the
temporary fluctuations in the market price of stock which often result from
actual or rumored takeover attempts.
Set forth in the following sections are descriptions of such provisions
of the Articles and Bylaws. Capitalized terms used and not defined herein are
defined in the Articles or Bylaws, as the case may be.
Classified Board of Directors
The Articles provide that, commencing with the first shareholders'
meeting at which directors are elected, the Board of Directors shall be divided
into three classes, as nearly equal in number as is reasonably possible, with
one class of directors serving until the 1997 annual meeting, one class serving
until the 1998 annual meeting, and one class serving until the 1999 annual
meeting of the Registrant's shareholders. Beginning with the 1997 annual meeting
of shareholders, one class of directors will be elected each year for a
three-year term.
The Registrant believes that a classified board of directors will help
to assure the continuity and stability of the Board of Directors and the
Registrant's business strategies and policies as determined by the Board of
Directors because generally a majority of the directors at any given time will
have had prior experience as directors of the Registrant. The classification of
directors also will have the effect of making it more difficult for shareholders
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to change the composition of the Board of Directors in a relatively short period
of time. At least two annual meetings of shareholders, instead of one, will
generally be required to effect a change in a majority of the Board of
Directors. Such a delay may help ensure that the Board of Directors, if
confronted by a shareholder conducting a proxy contest or an extraordinary
corporate transaction, will have sufficient time to review the proposal and any
alternatives to the proposal and to act in what it believes is the best
interests of the shareholders.
Number of Directors; Vacancies and Removal
The Articles provide that the Board of Directors will consist of not
less than three nor more than eleven directors, and the exact number of
directors will be determined from time to time by resolution adopted by a
majority of the total number of directors which the Registrant would have if
there were no vacancies (the "Whole Board") or by the affirmative vote of at
least eighty percent (80%) of the votes entitled to be cast by the Voting Stock.
In addition, the Articles provide that, subject to any rights of the holders of
the Preferred Stock, only a majority of the Board of Directors then in office
shall have the authority to fill any newly created directorships resulting from
any increase in the authorized number of directors or any vacancies on the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause. Accordingly, the Board of Directors could
prevent any shareholder from obtaining majority representation on the Board of
Directors by enlarging the Board of Directors and filling the new directorships
with its own nominees.
Moreover, the Articles provide, subject to any rights of the holders of
any class or series of the Preferred Stock, that directors may be removed only
for cause and only by the affirmative vote of holders of at least eighty percent
(80%) of the votes entitled to be cast by the Voting Stock. The term "Voting
Stock" is defined in the Articles to mean the outstanding shares of all classes
and series of capital stock of the Registrant entitled to vote on a matter and
voting together as a single voting group. This provision, when coupled with the
provision of the Articles authorizing only the Board of Directors to fill vacant
directorships, will preclude shareholders from removing incumbent directors
without cause and filling the vacancies created by such removal with their own
nominees.
Limitations on Shareholder Action by Written Consent; Special Meetings
The Virginia Act permits shareholder action by written consent in lieu
of a meeting only when consents are obtained from all of the shareholders who
would be entitled to vote on the matter at a shareholders meeting. In the
absence of unanimous written consent, shareholder action may be taken only at an
annual or special meeting of shareholders. The Articles provide that, subject to
the rights of holders of any class or series of the Preferred Stock, special
meetings of shareholders may be called only by the Chairman of the Board or by
the Board of Directors pursuant to a resolution adopted by a majority of the
Whole Board and may not be called by the shareholders. The business permitted to
be conducted at any special meeting of shareholders is limited to the business
brought before the meeting by or at the direction of the Board of Directors.
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The provisions of the Virginia Act restricting shareholder action by
written consent may have the effect of delaying consideration of a shareholder
proposal until the next annual meeting unless a special meeting is called by the
Chairman of the Board or a majority of the Whole Board. Moreover, a shareholder
could not force shareholder consideration of a proposal over the opposition of
the Board of Directors by calling a special meeting of shareholders prior to the
time that the Board of Directors believed such consideration to be appropriate.
Advance Notice Provision for Shareholder Proposals and Shareholder Nominations
of Directors
The Bylaws establish an advance notice procedure with regard to the
nomination, other than by or at the direction of the Board of Directors, of
candidates for election as directors (the "Nomination Procedure") and with
regard to matters to be brought before an annual meeting of shareholders at the
request of a shareholder (the "Business Procedure").
The Nomination Procedure provides that only persons who are nominated
by, or at the direction of, the Board of Directors, or by a shareholder who has
given timely prior written notice to the Secretary of the Registrant prior to
the meeting at which directors are to be elected, will be eligible for election
as directors. The Business Procedure provides that at an annual meeting, and
subject to any other applicable requirements, only such business may be
conducted as has been brought before the meeting by, or at the direction of, the
Board of Directors or by a shareholder who has given timely prior written notice
to the Secretary of the Registrant of such shareholder's intention to bring such
business (which business must otherwise be a proper matter for shareholder
action) before the meeting. In the case of the annual meeting, notice to be
timely must be received by the Registrant not later than the close of business
on the 60th day nor earlier than the close of business on the 90th day prior to
the first anniversary of the preceding year's annual meeting. In the case of a
special meeting or of an annual meeting that is more than 30 days before or more
than 60 days after the anniversary date of the preceding year's annual meeting,
notice to be timely must be received by the Registrant not earlier than the
close of business on the 90th day prior to such meeting and not later than the
close of business on the later of the 60th day prior to such meeting or the 10th
day following the date on which public announcement is first made of the date of
the meeting by the Registrant.
Under the Nomination Procedure, notice to the Registrant from a
shareholder who proposes to nominate a person at a meeting for election as a
director must contain certain information about that person, including name,
age, principal occupation, the class and number of shares of the Registrant's
capital stock beneficially owned, such person's consent to be nominated and such
other information as would be required to be included in a proxy statement
soliciting proxies for the election of the proposed nominee in an election
contest, and certain information about the shareholder proposing to nominate
that person. Under the Business Procedure, notice relating to the conduct of
business other than the nomination of directors at an annual meeting must
contain certain information about such business and about the shareholder who
proposes to bring the business before the meeting, including a brief description
of the business the shareholder proposes to bring before the meeting, the
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reasons for conducting such business at the meeting and any material interest of
such shareholder in the business so proposed. In addition, a shareholder giving
notice pursuant to these provisions of the Bylaws must provide the name and
address of such shareholder and of any beneficial owner on whose behalf the
nomination or proposal is made and the class and number of shares of the
Registrant's capital stock which are owned beneficially and of record by such
shareholder and such beneficial owner. If the Chairman of the Board or other
officer presiding at a meeting determines that a person was not nominated in
accordance with the Nomination Procedure, such person will not be eligible for
election as a director, or if he determines that other business was not properly
brought before such meeting in accordance with the Business Procedure, such
business will not be conducted at such meeting. Nothing in the Nomination
Procedure or the Business Procedure will preclude discussion by any shareholder
of any nomination or business properly made or brought before the meeting in
accordance with the above-mentioned procedures.
By requiring advance notice of nominations by shareholders, the
Nomination Procedure affords the Board of Directors a meaningful opportunity to
consider the qualifications of the proposed nominees and, to the extent deemed
necessary or desirable by the Board of Directors, to inform shareholders about
such qualifications. By requiring advance notice of proposed business, the
Business Procedure provides a more orderly procedure for conducting annual
meetings of shareholders and, to the extent deemed necessary or desirable by the
Board of Directors, provides the Board of Directors with a meaningful
opportunity to inform shareholders, prior to such meetings, of any business
proposed by a shareholder to be conducted at such meetings, together with any
recommendations as to the Board of Directors' position or belief as to action to
be taken with respect to such business. The Bylaws may have the effect of
precluding a nomination for the election of directors or precluding the conduct
of business at a particular meeting if the proper procedures are not followed,
and may discourage or deter a third party from conducting a solicitation of
proxies to elect its own slate of directors or otherwise attempting to obtain
control of the Registrant, even if the conduct of such solicitation or such
attempt might be believed by a shareholder to be beneficial to the Registrant
and its shareholders.
Transactions with Certain Interested Shareholders
Provisions of the Articles. Article VII of the Articles ("Article VII")
provides that the affirmative vote of the holders of at least eighty percent
(80%) of the votes entitled to be cast by the Voting Stock shall be required for
the approval of transactions with certain interested shareholders. Such
supermajority approval would be required for (i) a merger or consolidation
involving any person or entity who directly or indirectly owns or controls ten
percent (10%) or more of the votes entitled to be cast by the Voting Stock (an
"Interested Shareholder") at the record date for determining shareholders
entitled to vote on such merger or consolidation or (ii) a sale, lease or
exchange of substantially all of the Registrant's assets and property to or with
an Interested Shareholder, or a sale, lease or exchange of substantially all of
the assets and property of an Interested Shareholder to or with the Registrant.
In addition, Article VII provides that the same 80% vote shall be required for
the approval of certain transactions, including a reclassification of
securities, recapitalization, share exchange or other transaction designed to
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decrease the number of holders of the Common Stock remaining after any person or
entity has become an Interested Shareholder. Notwithstanding the foregoing, the
supermajority approval requirement will not apply to any transaction that is
approved by the Board of Directors prior to the time that the Interested
Shareholder becomes an Interested Shareholder.
For purposes of Article VII, a person or entity shall not be deemed to
be an Interested Shareholder if (i) on the Effective Date of the Merger
Agreement, such person or entity was the beneficial owner of shares representing
10% or more of the votes entitled to be cast by the Voting Stock or (ii) such
person or entity became the beneficial owner of such shares as a result of
acquiring shares from a person or entity specified in (i) above by gift,
testamentary bequest or the laws of descent and distribution and who has
continued thereafter to be the beneficial owner of shares representing 10% or
more of the votes entitled to be cast by the Voting Stock. The effect of this
provision is to permit shareholders who will beneficially own more than 10% of
the Common Stock on the Effective Date of the Merger Agreement to effect
transactions with the Registrant without compliance with the supermajority
voting requirement of Article VII.
Provisions of the Virginia Act. The Virginia Act contains provisions
governing "Affiliated Transactions" designed to deter certain coercive two-tier
takeovers of Virginia corporations. Affiliated Transactions include certain
mergers and share exchanges, material dispositions of corporate assets not in
the ordinary course of business, any dissolution of the corporation proposed by
or on behalf of an Interested Shareholder (as defined below), or
reclassifications, including reverse stock splits, recapitalizations or mergers
of the corporation with its subsidiaries which have the effect of increasing the
percentage of voting shares beneficially owned by an Interested Shareholder by
more than 5%. For purposes of the Virginia Act, an Interested Shareholder is
defined as any beneficial owner of more than 10% of any class of the voting
securities of a Virginia corporation.
Subject to certain exceptions discussed below, the provisions governing
Affiliated Transactions require that, for three years following the date upon
which any shareholder becomes an Interested Shareholder, a Virginia corporation
cannot engage in an Affiliated Transaction with such Interested Shareholder
unless approved by the affirmative vote of the holders of two-thirds of the
outstanding shares of the corporation entitled to vote, other than the shares
beneficially owned by the Interested Shareholder, and by a majority (but not
less than two) of the "Disinterested Directors." A Disinterested Director means,
with respect to a particular Interested Shareholder, a member of a corporation's
board of directors who (i) was a member before the later of January 1, 1988 and
the date on which an Interested Shareholder became an Interested Shareholder and
(ii) was recommended for election by, or was elected to fill a vacancy and
received the affirmative vote of, a majority of the Disinterested Directors then
on the corporation's board of directors. At the expiration of the three-year
period, these provisions require approval of Affiliated Transactions by the
affirmative vote of the holders of two-thirds of the outstanding shares of the
corporation entitled to vote, other than those beneficially owned by the
Interested Shareholder.
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The principal exceptions to the special voting requirement apply to
Affiliated Transactions occurring after the three-year period has expired and
require either that the transaction be approved by a majority of the
Disinterested Directors or that the transaction satisfy certain fair price
requirements of the statute. In general, the fair price requirements provide
that the shareholders must receive the highest per share price for their shares
as was paid by the Interested Shareholder for his shares or the fair market
value of their shares, whichever is higher. The fair price requirements also
require that, during the three years preceding the announcement of the proposed
Affiliated Transaction, all required dividends have been paid and no special
financial accommodations have been accorded the Interested Shareholder, unless
approved by a majority of the Disinterested Directors.
None of the foregoing limitations and special voting requirements
applies to an Affiliated Transaction with an Interested Shareholder whose
acquisition of shares making such a person an Interested Shareholder was
approved by a majority of the Disinterested Directors.
The provisions of the Virginia Act governing Affiliated Transactions
are inapplicable to transactions with the Registrant until the Registrant has
more than 300 shareholders of record. In addition, the Affiliated Transactions
provisions provide that, by affirmative vote of a majority of the voting shares
other than shares owned by any Interested Shareholder, a corporation may adopt,
by meeting certain voting requirements, an amendment to its articles of
incorporation or bylaws providing that the Affiliated Transactions provisions
shall not apply to the corporation.
The Registrant has not adopted such an amendment.
Control Share Acquisitions
The Virginia Act contains provisions regulating certain "control share
acquisitions," which are transactions causing the voting strength of any person
acquiring beneficial ownership of shares of a public corporation in Virginia to
meet or exceed certain threshold percentages (20%, 331/3% or 50%) of the total
votes entitled to be cast for the election of directors. Shares acquired in a
control share acquisition have no voting rights unless granted by a majority
vote of all outstanding shares other than those held by the acquiring person or
any officer or employee director of the corporation. The acquiring person may
require that a special meeting of the shareholders be held to consider the grant
of voting rights to the shares acquired in the control share acquisition. If the
acquiring person's shares are not accorded voting rights (or if no request for a
special meeting is made by an acquiror), the corporation may, if authorized by
its charter and bylaws prior to the control share acquisition, purchase the
acquiring person's shares at their cost to the acquiring person. Article VIII of
the Articles authorizes the repurchase of any acquiring person's shares that are
not accorded voting rights under the control share provisions of the Virginia
Act. If voting rights are approved and the acquiring person controls fifty
percent (50%) or more of the voting power, all shareholders other than the
acquiring person have dissenters' rights which enable them to receive the "fair
value" of their shares. "Fair value" is not less than the highest price paid in
the control share acquisition. The Virginia Act permits corporations to opt-out
of its provisions by adopting a bylaw or charter provision prior to a control
share acquisition stating that the control share provisions of the Virginia Act
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shall not apply. The Articles and Bylaws do not contain a provision opting-out
of the control share provisions of the Virginia Act. The provisions of the
Virginia Act relating to "control share acquisitions" are inapplicable to a
corporation until it has more than 300 shareholders.
Other Applicable Shareholder Voting Requirements
In general, under current provisions of the Virginia Act, most mergers,
share exchanges, sales of substantially all of the assets and reclassifications
of securities or plans for the dissolution of a corporation must be approved by
the board of directors and by the vote of the holders of more than two-thirds of
the outstanding shares entitled to vote thereon, unless the corporation's
articles of incorporation provide for a higher or lower (but not less than a
majority) vote. The Articles provide that such transactions require the approval
of only a majority of the votes entitled to be cast by the Voting Stock, unless
Article VII of the Articles or Article 14 of the Virginia Act (Affiliated
Transactions) impose a higher requirement. Under the Articles, the holder of
each outstanding share of the Common Stock is entitled to one vote per share on
all such matters.
Amendment of Certain Provisions of the Articles and Bylaws
The Articles require the affirmative vote of the holders of at least
eighty percent (80%) of the votes entitled to be cast by the Voting Stock to
amend certain provisions of the Articles (including the provisions discussed
above under "Classified Board of Directors;" "Number of Directors; Vacancies and
Removal;" "Limitations on Shareholder Action by Written Consent; Special
Meetings;" and "Transactions with Certain Interested Shareholders"). The
Articles and Bylaws also require an 80% vote of the shareholders to amend the
Bylaws. The Bylaws may also be amended by the Board of Directors. These
provisions will make it more difficult for shareholders to make changes in the
Articles and Bylaws, including changes designed to facilitate the exercise of
control over the Registrant. In addition, the requirement for approval by at
least an 80% shareholder vote will enable the holders of a minority of the
Registrant's capital stock to prevent holders of a less-than-80% majority from
amending such provisions of the Articles and Bylaws.
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Item 2. Exhibits
I. 4.1 Amended and Restated Articles of Incorporation of the Registrant
4.2 Bylaws of the Registrant
II. Not applicable.
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SIGNATURE
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.
SPURLOCK INDUSTRIES, INC.
Date: July 26, 1996 By: /s/ H. Norman Spurlock, Jr.
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H. Norman Spurlock, Jr.
Vice President and Secretary
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EXHIBIT INDEX
Number Exhibit
4.1 Amended and Restated Articles of Incorporation of the Registrant
4.2 Bylaws of the Registrant
Exhibit 4.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SPURLOCK INDUSTRIES, INC.
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ARTICLE I
Name
The name of the Corporation is Spurlock Industries, Inc.
ARTICLE II
Purpose
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be incorporated under the Virginia Stock
Corporation Act, as amended from time to time (the "VSCA").
ARTICLE III
Authorized Shares
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 55,000,000, of which 50,000,000
shares shall be Common Stock, no par value (the "Common Stock"), and 5,000,000
shares shall be Preferred Stock, no par value (the "Preferred Stock").
A. Common Stock. Except as otherwise provided in the VSCA or in
these Articles of Incorporation as they may be hereafter amended (these
"Articles"), each share of Common Stock shall be entitled to one vote on all
matters submitted to a vote at any meeting of shareholders, and the exclusive
general voting power of shareholders for all purposes shall be vested therein.
B. Preferred Stock.
1. The Preferred Stock may be issued from time to time
in one or more classes or series, with such designations, rights and preferences
as shall be stated and expressed herein or in the resolution or resolutions
authorizing the issue of shares of a particular class or series. The Board of
Directors, by adoption of an amendment to these Articles, is expressly
authorized to fix:
(a) The annual or other periodic dividend rate for
such class or series, the dividend payment dates, the date from which dividends
on all shares of such class or series issued shall be cumulative, and the extent
of participation rights, if any;
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(b) The redemption price or prices, if any, for
such class or series and other terms and conditions on which such class or
series may or shall be retired and redeemed;
(c) The designation and maximum number of shares
of such class or series issuable;
(d) The right to vote, if any, with holders of
shares of any other class or series and the right to vote, if any, as a separate
voting group, either generally or as a condition to specified corporate action;
(e) The amounts payable upon shares in the event
of voluntary or involuntary liquidation;
(f) The rights, if any, of the holders of shares of
such class or series to convert such shares into other classes or series and the
terms and conditions of any such conversion; and
(g) Such other rights and/or preferences as may be
specified by the Board of Directors and not prohibited by law.
C. No Preemptive Rights. No holder of shares of the Corporation
of any class, now or hereafter authorized, shall as such holder have any
preemptive right to subscribe to, purchase, or receive any shares of the
Corporation of any class, now or hereafter authorized, or any rights or options
to subscribe to or purchase any such shares or other securities convertible into
or exchangeable for or carrying rights or options to purchase shares of any
class or other securities, which may at any time be issued, sold, or offered
for sale by the Corporation or subjected to rights or options to purchase
granted by the Corporation.
D. Voting Requirements.
1. Except as otherwise provided in these Articles or
required by the VSCA, the outstanding shares of all classes and series of
capital stock of the Corporation entitled to vote on a matter (the "Voting
Stock") shall be counted together to determine if a quorum of such shares exists
and shall vote together as a single voting group.
2. Except as otherwise provided in Article 14
(Affiliated Transactions) of the VSCA or in these Articles, any corporate
action, except the election of directors, shall for each voting group entitled
to vote on the matter be approved at a meeting of shareholders at which a quorum
of the voting group is present if the votes cast in favor of the action exceed
the votes cast against the action.
3. Except as otherwise provided in these Articles,
directors shall be elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting of shareholders at which a quorum
is present.
4. Except as is otherwise provided in Article 14
(Affiliated Transactions) of the VSCA or these Articles, if a shareholder vote
is required under the VSCA, any (i) amendment of the Articles (ii) merger or
share exchange to which the Corporation is a party, (iii) sale, lease, or
exchange of all or substantially all of the Corporation's assets and property
other than in the usual and regular course of business, or (iv) reclassification
of securities or recapitalization of the Corporation, shall be approved by the
affirmative vote of the holders of a majority of the votes entitled to be cast
by the Voting Stock at a meeting of shareholders duly called for such purpose.
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ARTICLE IV
Board of Directors
A. Number, Election and Term of Directors. The business and
affairs of the Corporation shall be managed by or under the direction of a
Board of Directors consisting of not less than three nor more than eleven
directors, the exact number of directors to be determined from time to time by
resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies (the "Whole Board") or by the
affirmative vote of at least eighty percent (80%) of the votes entitled to be
cast by the Voting Stock. Commencing with the first shareholders' meeting at
which directors are elected, the directors, other than those who may be elected
by the holders of any class or series of Preferred Stock under specified
circumstances, shall be divided, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
reasonably possible, with the term of office of the first class to expire at the
1997 annual meeting of shareholders, the term of office of the second class to
expire at the 1998 annual meeting of shareholders, and the term of office of the
third class to expire at the 1999 annual meeting of shareholders, with each
director to hold office until his successor shall have been duly elected and
qualified. At each annual meeting of shareholders, commencing with the 1997
annual meeting, (i) directors elected to succeed those directors whose terms
then expire shall be elected for a term of office to expire at the third
succeeding annual meeting of shareholders after their election, with each
director to hold office until his successor shall have been duly elected and
qualified, and (ii) if authorized by a resolution of the Board of Directors,
directors may be elected to fill any vacancy on the Board of Directors,
regardless of how such vacancy shall have been created.
B. Shareholder Nomination of Director Candidates; Introduction of
Business. Advance notice of shareholder nominations for the election of
directors and of business to be brought by shareholders before any meeting of
the shareholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
C. Newly Created Directorships and Vacancies. Subject to
applicable law and to the rights of the holders of any class or series of
Preferred Stock with respect to such class or series of Preferred Stock, and
unless the Board of Directors otherwise determines, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
only by a majority vote of the directors then in office, though less than a
quorum, and a director so chosen shall hold office for a term expiring at the
next meeting of shareholders at which directors are elected and until his
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the entire Board of Directors shall shorten
the term of any incumbent director.
D. Removal. Subject to the rights of the holders of any class or
series of Preferred Stock with respect to such class or series of Preferred
Stock, any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least eighty percent (80%) of the votes entitled to be cast by the
Voting Stock.
E. Amendment, Repeal or Alteration. Notwithstanding any other
provision of these Articles or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the capital stock required by law or these
Articles, the affirmative vote of the holders of at least eighty percent (80%)
of the votes entitled to be cast by the Voting Stock shall be required to alter,
amend or repeal this Article IV.
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ARTICLE V
Amendment, Repeal or Alteration of Bylaws
In furtherance and not in limitation of the powers conferred by law,
the Board of Directors is expressly authorized to make, alter, amend and repeal
the Bylaws of the Corporation, subject to the power of the holders of the
capital stock of the Corporation to alter, amend or repeal the Bylaws; provided,
however, that, with respect to the powers of the holders of capital stock to
alter, amend and repeal the Bylaws of the Corporation, notwithstanding any other
provision of these Articles or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the capital stock of the Corporation
required by law or these Articles, the affirmative vote of the holders of at
least eighty percent (80%) of the votes entitled to be cast by the Voting Stock
shall be required to (i) alter, amend or repeal any provision of the Bylaws, or
(ii) alter, amend or repeal any provision of this Article V.
ARTICLE VI
Special Meetings of Shareholders
Subject to the rights of the holders of any class or series of
Preferred Stock with respect to such class or series of Preferred Stock, special
meetings of shareholders of the Corporation may be called only by the Chairman
of the Board or by the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board. Notwithstanding any other provision of these
Articles or any provision of law which might otherwise permit a lesser vote or
no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the capital stock of the Corporation required by
law or these Articles, the affirmative vote of the holders of at least eighty
percent (80%) of the votes entitled to be cast by the Voting Stock shall be
required to alter, amend or repeal this Article VI.
ARTICLE VII
Interested Shareholder Transactions
In the event that the holders of the capital stock of the Corporation
are entitled to vote on (i) a merger or consolidation with any Person (as
hereinafter defined) or on a proposal that the Corporation sell, lease or
exchange substantially all of its assets and property to or with any Person or
that any Person sell, lease or exchange substantially all of its assets and
property to or with the Corporation, and such Person is the Beneficial Owner (as
hereinafter defined) of shares representing ten percent (10%) or more of the
votes entitled to be cast by the Voting Stock (an "Interested Shareholder") at
the record date for determining shareholders entitled to vote or (ii) any
reclassification of securities, recapitalization, share exchange or other
transaction (except redemptions permitted by the terms of the security redeemed
or repurchases of the securities for cancellation or the Corporation's treasury)
designed to decrease the number of holders of the Corporation's Common Stock
remaining after any Person has become an Interested Shareholder, the affirmative
vote of the holders of at least eighty percent (80%) of the votes entitled to be
cast by the Voting Stock shall be required for the approval of any such action,
in addition to any other approval that may be required by law or these Articles,
provided, however, that the foregoing shall not apply to any such merger,
consolidation, sale, lease or exchange of assets and property or such
reclassification, recapitalization, share exchange or other transaction which
was approved by resolutions of the Board of Directors of the Corporation prior
to the time that any Person becomes an Interested Shareholder or, in the case of
any merger, consolidation, sale, lease or exchange involving a particular
Interested Shareholder, prior to the time such Interested Shareholder became an
Interested Shareholder.
For the purpose hereof, a Person shall be deemed not to be an
Interested Shareholder if (i) on the effective date of the certificate of merger
between the Corporation and Air Resources Corporation, a Colorado corporation,
such Person was the Beneficial Owner of shares representing ten percent (10%) or
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more of the votes entitled to be cast by the Voting Stock, or (ii) such Person
became the Beneficial Owner of such shares as a result of acquiring shares from
a Person specified in (i) by gift, testamentary bequest or the laws of descent
and distribution or in a transaction in which consideration was not exchanged
and who has continued thereafter to be the Beneficial Owner of shares
representing ten percent (10%) or more of the votes entitled to be cast by the
Voting Stock, or who would have so continued but for the unilateral action of
the Corporation.
A "Person" shall mean any corporation, partnership, association, trust
(other than any trust holding stock of the employees of the Corporation pursuant
to any stock purchase, ownership or employee benefit plan of the Corporation),
business entity, estate or individual or any Affiliate (as hereinafter defined)
of any of the foregoing. An "Affiliate" shall mean any corporation, partnership,
association, trust, business entity, estate or individual who, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, a Person. "Control" shall mean the possession,
directly or indirectly, of power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
A Person shall be deemed to be the "Beneficial Owner" of shares if such
Person has the sole or shared power to dispose or direct the disposition of such
shares, or the sole or shared power to vote or direct the voting of such shares,
or the sole or shared power to acquire such shares, including any such power
which is not immediately exercisable, whether such power is direct or indirect
or through any contract, arrangement, understanding, relationship or otherwise.
A Person shall not be deemed to be a Beneficial Owner of shares tendered
pursuant to a tender or exchange offer made by such Person until the tendered
shares are accepted for purchase or exchange. A Person shall not be deemed to be
a Beneficial Owner of shares as to which such person may exercise voting power
solely by virtue of a revocable proxy conferring the right to vote. A member of
a national securities exchange shall not be deemed to be a Beneficial Owner of
shares held directly by it on behalf of another person solely because such
member is the record holder of such shares and, pursuant to the rules of such
exchange, may direct the vote of such shares, without instructions, on other
than contested matters or matters that may affect substantially the rights or
privileges of the holders of the shares to be voted but is otherwise precluded
by the rules of such exchange from voting without instructions.
Notwithstanding any other provisions of these Articles or any provision
of law which might otherwise permit a lesser vote or no vote, but in addition to
any affirmative vote of the holders of any particular class or series of the
Voting Stock required by law or these Articles, the affirmative vote of the
holders of at least eighty percent (80%) of the votes entitled to be cast by the
Voting Stock shall be required to alter, amend or repeal this Article VII.
ARTICLE VIII
Control Share Acquisitions
In the event that any acquiring person (an "Acquiring Person") as
defined in Section 13.1-728.1 of the VSCA, either (i) fails to comply with the
provisions of Section 13.1-728.4 of the VSCA or (ii) fails to obtain the
approval of the shareholders of the Corporation at any meeting held pursuant to
Section 13.1-728.5 of the VSCA, then the Corporation shall have authority, upon
approval by resolution of the Board of Directors, to call for redemption, at
anytime within sixty (60) days after the last acquisition of any such shares by
such Acquiring Person or the date of such meeting, as the case may be, and
thereafter to redeem on such date within such 60-day period as may be specified
in such resolution (the "Redemption Date") all shares of Voting Stock of the
Corporation theretofore acquired by the Acquiring Person in a control share
acquisition (as defined in Section 13.1-728.1 of the VSCA) and then owned
beneficially by such Acquiring Person, as such number of shares may be either
(i) shown on any control share acquisition statement or any statement or report
filed by the Acquiring Person with the Securities and Exchange Commission under
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the Securities Exchange Act of 1934, as amended, or (ii) otherwise determined by
the Board of Directors. The redemption price shall be paid in cash on the
Redemption Date against delivery at the principal office of the Corporation of
certificates evidencing the shares so redeemed.
All determinations by the Board of Directors as to (i) the status of
any person as an Acquiring Person under the VSCA, (ii) the number of shares of
the Corporation owned by such Acquiring Person, (iii) the timeliness of
compliance by an Acquiring Person within Section 13.1-728.4 of the VSCA, or (iv)
the interpretation of the VSCA or this Article VIII if made in good faith, shall
be conclusive and binding on all persons.
ARTICLE IX
Limitation of Liability and Indemnification
A. Limitation of Liability. To the full extent that the VSCA
permits the limitation or elimination of the liability of directors or officers,
a director or officer of the Corporation shall not be liable to the Corporation
or its shareholders for any monetary damages.
B. Mandatory Indemnification. The Corporation shall indemnify
a director or officer of the Corporation who is or was a party to any proceeding
by reason of the fact that he is or was such a director or officer or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other profit or nonprofit enterprise against all liabilities and
expenses incurred in the proceeding, except such liabilities and expenses as are
incurred because of his willful misconduct or knowing violation of the criminal
law. Unless a determination has been made that indemnification is not
permissible, the Corporation shall make advances and reimbursements for expenses
incurred by a director or officer in a proceeding upon receipt of an undertaking
from him to repay the same if it is ultimately determined that he is not
entitled to indemnification. Such undertaking shall be an unlimited, unsecured
general obligation of the director or officer and shall be accepted without
reference to his ability to make repayment. The Board of Directors is hereby
empowered, by majority vote of a quorum of disinterested directors, to contract
in advance to indemnify and advance the expenses of any director or officer.
C. Permissive Indemnification. The Board of Directors is hereby
empowered, by majority vote of a quorum of disinterested directors, to cause the
Corporation to indemnify or contract in advance to indemnify any person not
specified in Section B of this Article IX who was or is a party to any
proceeding, by reason of the fact that he is or was an employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other profit or nonprofit enterprise,
to the same extent as if such person was specified as one to whom
indemnification is granted in Section B.
D. Insurance. The Corporation may purchase and maintain insurance
to indemnify it against the whole or any portion of the liability assumed by it
in accordance with this Article IX and may also procure insurance, in such
amounts as the Board of Directors may determine, on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other profit or non-profit enterprise, against any liability
asserted against or incurred by such person in any such capacity or arising from
his status as such, whether or not the Corporation would have power to indemnify
him against such liability under the provisions of this Article IX.
E. Special Legal Counsel. In the event there has been a change
in the composition of a majority of the Board of Directors after the date of the
alleged act or omission with respect to which indemnification is claimed, any
determination as to indemnification and advancement of expenses with respect to
any claim for indemnification made pursuant to Section B of this Article IX
shall be made by special legal counsel agreed upon by the Board of Directors and
the proposed indemnitee. If the Board of Directors and the proposed indemnitee
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are unable to agree upon such special legal counsel, the Board of Directors and
the proposed indemnitee each shall select a nominee, and the nominees shall
select such special legal counsel.
F. Indemnitee's Rights. The provisions of this Article IX shall
be applicable to all actions, claims, suits or proceedings commenced after the
adoption hereof, whether arising from any action taken or failure to act before
or after such adoption. No amendment, modification or repeal of this Article IX
shall diminish the rights provided hereby or diminish the right to
indemnification with respect to any claim, issue or matter in any other pending
or subsequent proceeding that is based in any material respect on any alleged
action or failure to act prior to such amendment, modification or repeal.
G. Additional Indemnitees. Reference herein to directors,
officers, employees or agents shall include former directors, officers,
employees and agents and their respective heirs, executors and administrators.
ARTICLE X
Reservation of Rights
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles, and any other provisions authorized
by the laws of the Commonwealth of Virginia at the time in force may be added or
inserted, in the manner now or hereafter provided herein or by statute. All
rights, preferences and privileges of whatsoever nature conferred upon
shareholders, directors or any other persons whomsoever by these Articles in
their present form, or as amended, are granted subject to the rights reserved in
this Article X.
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Exhibit 4.2
BYLAWS
OF
SPURLOCK INDUSTRIES, INC.
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ARTICLE I
Offices and Records
A. Virginia Office. The principal office of the Corporation shall
be located within the Commonwealth of Virginia.
B. Other Offices. The Corporation may have such other offices,
either within or without the Commonwealth of Virginia, as the Board of Directors
may designate or as the business of the Corporation may from time to time
require.
C. Books and Records. The books and records of the Corporation
may be kept within or without the Commonwealth of Virginia at such place or
places as may from time to time be designated by the Board of Directors.
ARTICLE II
Shareholders
A. Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held on the third Tuesday in May of each year at the
principal office of the Corporation, or at such other time or place as may be
fixed by resolution of the Board of Directors, or in the absence of action by
the Board of Directors, as may be fixed by the Chairman of the Board.
B. Place of Meeting. The Board of Directors or the Chairman of
the Board, as the case may be, may designate the place of meeting for any annual
meeting or for any special meeting of the shareholders called by the Board of
Directors or the Chairman of the Board. If no designation is so made, the place
of meeting shall be the principal office of the Corporation.
C. Notice of Meeting. Written or printed notice, stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each shareholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
shareholder at his address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be required by law. Only
such business shall be conducted at a special meeting of shareholders as shall
have been brought before the meeting pursuant to the Corporation's notice of
meeting. Any previously scheduled meeting of the shareholders may be postponed,
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and (unless the Articles of Incorporation otherwise provides) any special
meeting of the shareholders may be cancelled, by resolution of the Board of
Directors upon public notice given prior to the date previously scheduled for
such meeting of shareholders.
D. Quorum and Adjournment. Except as otherwise provided by law
or by the Articles of Incorporation, the holders of a majority of the
outstanding shares of the Corporation entitled to vote generally in the election
of directors, represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders, except that when specified business is to be voted on
by a class or series of stock voting as a separate voting group, the holders of
a majority of the shares of such class or series shall constitute a quorum of
such class or series for the transaction of such business. The Chairman of the
meeting or a majority of the shares so represented may adjourn the meeting from
time to time, whether or not there is such a quorum. No notice of the time and
place of adjourned meetings need be given except as required by law. The
shareholders present at a duly called meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
E. Proxies. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing (or in such manner prescribed by the Virginia
Stock Corporation Act) by the shareholder, or by his duly authorized attorney in
fact.
F. Notice of Shareholder Business and Nominations.
1. Annual Meetings of Shareholders.
(a) Nominations of persons for election to the Board
of Directors of the Corporation and the proposal of business to be considered by
the shareholders may be made at an annual meeting of shareholders (1) pursuant
to the Corporation's notice of meeting, (2) by or at the direction of the Board
of Directors or (3) by any shareholder of the Corporation who was a shareholder
of record at the time of giving of notice provided for in this Bylaw, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Bylaw.
(b) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause (3) of
paragraph 1(a) of this Bylaw, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for shareholder action. To be timely, a
shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a shareholder's notice as described above. Such shareholder's
notice shall set forth (1) as to each person whom the shareholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (2) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (3) as to the shareholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
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address of such shareholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class or series and number of shares of the
Corporation which are owned beneficially and of record by such shareholder and
such beneficial owner.
(c) Notwithstanding anything in the second sentence
of paragraph 1(b) of this Bylaw to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a shareholder's notice required by this Bylaw shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
2. Special Meetings of Shareholders. Only such business
shall be conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of shareholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this Bylaw, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw. In the event the
Corporation calls a special meeting of shareholders for the purpose of electing
one or more directors to the Board of Directors, any such shareholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
shareholder's notice required by paragraph 1(b) of this Bylaw shall be delivered
to the Secretary at the principal executive offices of the Corporation not
earlier than the close of business on the 90th day prior to such special meeting
and not later than the close of business on the later of the 60th day prior to
such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareholder's notice as described
above.
3. General
(a) Only such persons who are nominated in accordance
with the procedures set forth in this Bylaw shall be eligible to serve as
directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Bylaw. Except as otherwise provided by law, the Articles of
Incorporation or these Bylaws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Bylaw and, if any proposed
nomination or business is not in compliance with this Bylaw, to declare that
such defective proposal or nomination shall be disregarded.
(b) For purposes of this Bylaw, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(c) Notwithstanding the foregoing provisions of this
Bylaw, a shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect
any rights (i) of shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any class or series of Preferred Stock to elect directors
under specified circumstances.
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G. Inspectors of Elections; Opening and Closing the Polls. The
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of shareholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of shareholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability. The inspectors shall have the duties
prescribed by law.
The Chairman of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the polls for each
matter upon which the shareholders will vote at a meeting.
ARTICLE III
Board of Directors
A. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw promptly after, and at the
same place as, the Annual Meeting of Shareholders. The Board of Directors may,
by resolution, provide the time and place for the holding of additional regular
meetings without other notice than such resolution.
B. Special Meetings. Special meetings of the Board of Directors
shall be called at the request of the Chairman of the Board, the President or a
majority of the Board of Directors then in office. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings.
C. Notice. Notice of any special meeting of directors shall be
given to each director at his business or residence in writing by hand delivery,
first-class or overnight mail or courier service, telegram or facsimile
transmission, or orally by telephone. If mailed by first-class mail, such notice
shall be deemed adequately delivered when deposited in the United States mail so
addressed, with postage thereon prepaid, at least five (5) days before such
meeting. If by telegram, overnight mail or courier service, such notice shall be
deemed adequately delivered when the telegram is delivered to the telegraph
company or the notice is delivered to the overnight mail or courier service
company at least twenty-four (24) hours before such meeting. If by facsimile
transmission, such notice shall be deemed adequately delivered when the notice
is transmitted at least twelve (12) hours before such meeting. If by telephone
or by hand delivery, the notice shall be given at least twelve (12) hours prior
to the time set for the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these Bylaws,
as provided under Article VIII of these Bylaws. A meeting may be held at any
time without notice if all the directors are present or if those not present
waive notice of the meeting in accordance with paragraph D of Article VI of
these Bylaws.
D. Action by Consent of Board of Directors. Any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
E. Conference Telephone Meetings. Members of the Board of
Directors, or any committee thereof, may participate in a meeting of the Board
of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
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F. Quorum. Subject to the provisions of Article V of the
Articles of Incorporation relating to newly created directorships and vacancies,
a whole number of directors equal to at least a majority of the total number of
directors which the Corporation would have if there were no vacancies (the
"Whole Board") shall constitute a quorum for the transaction of business, but if
at any meeting of the Board of Directors there shall be less than a quorum
present, a majority of the directors present may adjourn the meeting from time
to time without further notice. The act of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors. The directors present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
directors to leave less than a quorum.
G. Executive and Other Committees. The Board of Directors may,
by resolution adopted by a majority of the Whole Board, designate an Executive
Committee to exercise, subject to applicable provisions of law, all the powers
of the Board in the management of the business and affairs of the Corporation
when the Board is not in session and may, by resolution similarly adopted,
designate one or more other committees. The Executive Committee and each such
other committee shall consist of two or more directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee, other than the Executive Committee (the powers of
which are expressly provided for herein), may to the extent permitted by law
exercise such powers and shall have such responsibilities as shall be specified
in the designating resolution. In the absence or disqualification of any member
of such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not constituting a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Each committee shall keep
written minutes of its proceedings and shall report such proceedings to the
Board when required.
A majority of any committee may determine its action and fix
the time and place of its meetings, unless the Board shall otherwise provide.
Notice of such meetings shall be given to each member of the committee in the
manner provided for in Paragraph C of this Article. The Board shall have power
at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee. Nothing herein shall be deemed to prevent the Board from
appointing one or more committees consisting in whole or in part of persons who
are not directors of the Corporation; provided, however, that no such committee
shall have or may exercise any authority of the Board.
H. Records. The Board of Directors shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board
and of the shareholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
ARTICLE IV
Officers
A. Elected Officers. The elected officers of the Corporation
shall be a Chairman of the Board, a President, a Secretary, a Treasurer, and
such other officers (including, without limitation, a Chief Executive Officer, a
Chief Financial Officer and a Chief Accounting Officer) as the Board of
Directors from time to time may deem proper. The Chairman of the Board shall be
chosen from among the directors. All officers elected by the Board of Directors
shall each have such powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article IV. Such officers
shall also have such powers and duties as from time to time may be conferred by
the Board of Directors or by any committee thereof. The Board or any committee
thereof may from time to time elect, or the Chairman of the Board or the
President may appoint, such other officers (including one or more Vice
Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant
Treasurers, and Assistant Controllers) and such agents, as may be necessary or
desirable for the conduct of the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their offices for such
terms as shall be provided
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in these Bylaws or as may be prescribed by the Board or such committee or by the
Chairman of the Board or the President, as the case may be.
B. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after the annual meeting of the
shareholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign, but any officer may be
removed from office at any time by the affirmative vote of a majority of the
Whole Board or, except in the case of an officer or agent elected by the Board
or a committee thereof, by the Chairman of the Board or the President. Such
removal shall be without prejudice to the contractual rights, if any, of the
person so removed.
C. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the shareholders and of the Board of Directors. The Chairman
of the Board shall be responsible for the general management of the affairs of
the Corporation and shall perform all duties incidental to his office which may
be required by law and all such other duties as are properly required of him by
the Board of Directors. He shall make reports to the Board of Directors and the
shareholders, and shall see that all orders and resolutions of the Board of
Directors and of any committee thereof are carried into effect. The Chairman of
the Board may also serve as the President, if so elected by the Board.
D. President. The President shall act in a general executive
capacity and shall assist the Chairman of the Board in the administration and
operation of the Corporation's business and general supervision of its policies
and affairs. The President shall, in the absence or inability to act of the
Chairman of the Board, perform all duties of the Chairman of the Board and
preside at all meetings of shareholders and of the Board of Directors.
E. Vice Presidents. Each Vice President shall have such powers
and shall perform such duties as shall be assigned by the Board of Directors,
the Chairman of the Board or the President.
F. Treasurer. The Treasurer shall exercise general supervision
over the receipt, custody and disbursement of corporate funds. The Treasurer
shall cause the funds of the Corporation to be deposited in such banks as may be
authorized by the Board of Directors, or in such banks as may be designated as
depositories in the manner provided by resolution of the Board of Directors. He
shall have such further powers and duties and shall be subject to such
directions as may be granted or imposed upon him from time to time by the Board
of Directors, the Chairman of the Board or the President.
G. Secretary. The Secretary shall keep or cause to be kept in
one or more books provided for that purpose, the minutes of all meetings of the
Board, the committees of the Board and the shareholders; he shall see that all
notices are duly given in accordance with the provisions of these Bylaws and as
required by law; he shall be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to all other
documents to be executed on behalf of the Corporation under its seal; and he
shall see that the books, reports, statements, certificates and other documents
and records required by law to be kept and filed are properly kept and filed;
and in general, he shall perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board of Directors, the Chairman of the Board or the President.
H. Removal. Any officer elected, or agent appointed, by the
Board of Directors may be removed by the affirmative vote of a majority of the
Whole Board whenever, in their judgment, the best interests of the Corporation
would be served thereby. Any officer or agent appointed by the Chairman of the
Board or the President may be removed by him whenever, in his judgment, the best
interests of the Corporation would be served thereby. No elected officer shall
have any contractual rights against the Corporation for compensation by virtue
of such election beyond the date of the election of his successor, his death,
his resignation or his removal, whichever
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event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
I. Vacancies. A newly created elected office and a vacancy in any
elected office because of death, resignation, or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the Chairman of the
Board or the President because of death, resignation, or removal may be filled
by the Board of Directors, the Chairman of the Board or the President.
ARTICLE V
Stock Certificates and Transfers
A. Stock Certificates and Transfers. The interest of each
shareholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by his attorney, upon surrender for cancellation of certificates for at least
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require.
The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe,
which resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
B. Lost, Stolen or Destroyed Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer may in its or his
discretion require.
ARTICLE VI
Miscellaneous Provisions
A. Fiscal Year. The fiscal year of the Corporation shall begin
on the first day of January and end on the thirty-first day of December of each
year.
B. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Articles of
Incorporation.
C. Seal. The corporate seal shall have inscribed thereon the
word "Seal," the year of incorporation and around the margin thereof the words
"Spurlock Industries, Inc."
D. Waiver of Notice. Whenever any notice is required to be given
to any shareholder or director of the Corporation under the provisions of the
Virginia Stock Corporation Act or these Bylaws, a waiver thereof in
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writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at, nor the purpose of, any
annual or special meeting of the shareholders or the Board of Directors or
committee thereof need be specified in any waiver of notice of such meeting.
E. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be done annually.
F. Resignations. Any director or any officer, whether elected
or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board, the President, or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman of the Board, the President, or
the Secretary, or at such later time as is specified therein. No formal action
shall be required of the Board of Directors or the shareholders to make any such
resignation effective.
G. Use of Masculine. Whenever a masculine term is used in these
Bylaws, it shall be deemed to include the feminine.
ARTICLE VII
Contracts, Proxies, Etc.
A. Contracts. Except as otherwise required by law, the Articles
of Incorporation or these Bylaws, any contracts or other instruments may be
executed and delivered in the name and on the behalf of the Corporation by such
officer or officers of the Corporation as the Board of Directors may from time
to time direct. Such authority may be general or confined to specific instances
as the Board may determine. The Chairman of the Board, the President or any Vice
President may execute bonds, contracts, deeds, leases and other instruments to
be made or executed for or on behalf of the Corporation. Subject to any
restrictions imposed by the Board of Directors or the Chairman of the Board, the
President or any Vice President of the Corporation may delegate contractual
powers to others under his jurisdiction, it being understood, however, that any
such delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
B. Proxies. Unless otherwise provided by resolution adopted by
the Board of Directors, the Chairman of the Board, the President or any Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as the holder of stock
or other securities in any other corporation, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE VIII
Amendments
Subject to the provisions of the Articles of Incorporation, these
Bylaws may be altered, amended, or repealed at any meeting of the Board of
Directors or of the shareholders, provided notice of the proposed change was
given in the notice of the meeting and, in the case of a meeting of the Board of
Directors, in a notice given not less than two days prior to the meeting.
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Certified to be a true and correct copy of
the Bylaws of Spurlock Industries, Inc.
duly adopted by the initial Board of
Directors on January 29, 1996, and
currently in effect without amendment.
By: /s/ H. Norman Spurlock, Jr.
-----------------------------
Name: H. Norman Spurlock, Jr.
Title: Secretary
Date: January 29, 1996
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