<PAGE> 1
SCHEDULE 14C
(Rule 14C-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934
(Amendment No. 1)
Check the appropriate box:
[X] Preliminary Information Statement
[ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14c-5(d)(2)).
[ ] Definitive Information Statement
BOBBY ALLISON WIRELESS CORPORATION
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in Its Charter)
Payment of Filing Fee (Check the appropriate box):
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0- 11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
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BOBBY ALLISON WIRELESS CORPORATION
2055 LAKE AVENUE, S.E., SUITE A
LARGO, FLORIDA 33771
(727) 584-7902
----------------
INFORMATION STATEMENT
The following information is furnished to holders of Common Stock of
the Company in connection with the proposed consent of the shareholders to be
taken in lieu of a special meeting of the common shareholders of Bobby Allison
Wireless Corporation (the "Company") for the purpose of amending the Articles of
Incorporation of the Company to make certain amendments with respect to the
rights, powers and preferences of the Company's 7.5% Series A Convertible
Preferred Stock, 7.5% Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock. A copy of the consent for execution by you along
with a copy of the proposed Fourth Amendment to the Amended and Restated
Articles of Amendment are enclosed with this Information Statement (the
"Amendment"). This Information Statement is first being mailed to holders of the
Company's Common Stock on or about July 22, 1999.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US
A PROXY.
GENERAL INFORMATION
VOTING RIGHTS AND RECORD DATE
In accordance with the Florida corporate law and the Company's Articles
of Incorporation, a majority of the holders of the Common Stock of the Company
have the to right to approve amendments to the Articles of Incorporation. The
Articles of Incorporation of the Company also provide that the Company's
preferred stock is generally non-voting unless such amendment amends provisions
with respect to the rights, powers and preferences of the holders of preferred
stock which requires the vote of the majority of each series of preferred stock.
The proposed Amendment amends provisions regarding the rights, preferences and
powers of the holders of the preferred stock. Consequently, the proposed
amendment requires the vote of a majority of the holders of the outstanding
Series A Preferred Stock and the outstanding Series B Preferred Stock in
addition to the holders of the outstanding Common Stock. There are no shares of
Series C Preferred Stock currently outstanding.
The Company is seeking approval on this matter through the consent of
the shareholders in lieu of a special meeting of the shareholders. Florida
corporate law and the Bylaws of the Company provide that a vote of the
stockholders may be taken by consent action in lieu of meeting by obtaining the
consent of the holders of such number of shares of outstanding stock as would
otherwise be necessary to approve such action at a meeting. Therefore, the
Company is seeking the consent of the holders of a majority of the Common Stock
instead of proxies. With respect to the preferred stock, however, the Articles
of Incorporation provide that an action by consent must be unanimous. Therefore,
the Company is seeking the unanimous consent of the holders of the Series A
Preferred Stock and the Series B Preferred Stock and the majority consent of the
common shareholders. The Company's two executive officers, Robert L. McGinnis,
Chairman and CEO, and James L. Ralph, President and Secretary, currently own a
majority of the Common Stock but such ownership is just under a majority on a
fully diluted basis.
Holders of the Company's Common Stock, Series A Preferred Stock and
Series B Preferred Stock of record at the close of business on July 9, 1999, are
entitled to vote on the proposed Amendment. As of July 9, 1999, there were
480,000 shares of the Company's Common Stock issued and outstanding, and
entitled to vote, 15 shares of the Company's Series A Preferred Stock issued and
outstanding, and entitled to vote and 50 shares of the Company's Series B
Preferred Stock issued and outstanding, and entitled to vote. The holders of the
Common Stock, Series A Preferred Stock and Series B Preferred Stock are entitled
to one vote per share.
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EXPENSES OF SOLICITATION
The cost of soliciting proxies is paid by the Company. Solicitation is
being made principally by mail; in addition certain officers and directors of
the Company and persons acting under their instructions may also solicit proxies
on behalf of management by telephone or in person. The cost of such additional
solicitation, if any, and such expenses is not expected to be material.
SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS
The following table sets forth the number and percentage of outstanding
shares of Common Stock beneficially owned as of July 9, 1999 by (i) each person
or entity known by the Company to own more than 5% of the outstanding Common
Stock; (ii) each Named Executive Officer of the Company; (iii) each director of
the Company, and (iv) all executive officers and directors of the Company as a
group.
<TABLE>
<CAPTION>
NAME OF BENEFICIAL OWNER SHARES(1) PERCENTAGE(2)
- ------------------------ --------- -------------
<S> <C> <C>
Robert L. McGinnis (3) 197,498 25.90%
2055 Lake Avenue, S.E., Suite A
Largo, Florida 33771
James L. Ralph(3) 197,498 25.90%
2055 Lake Avenue, S.E., Suite A
Largo, Florida 33771
James S. Holbrook, Jr.(4)(5) 279,976 37.29%
1901 Sixth Avenue North, Suite 2100
Birmingham, Alabama 35203
Sterne, Agee & Leach Group, Inc.(5) 246,648 32.85%
1901 Sixth Avenue North
Birmingham, Alabama 35203
Sterne, Agee & Leach, Inc. (5) 246,648 32.85%
1901 Sixth Avenue North
Birmingham, Alabama 35203
The Trust Company of Sterne, Agee & Leach, Inc.(5) 246,648 32.85%
800 Shades Creek Parkway, Suite 125
Birmingham, Alabama 35209
All directors and executive officers as a group 674,972 85.57%
(3 persons)
</TABLE>
- ------------------
(*) Indicates beneficial ownership of less than 1% of the outstanding shares of
the Company's Common Stock.
(1) Includes shares of Common Stock owned and shares of Common Stock into which
shares of convertible preferred stock of the Company owned by such person is
convertible. The only actual owners of the Company's Common Stock are Robert L.
McGinnis, James L. Ralph, Sterne, Agee & Leach, Inc. and The Trust Company of
Sterne, Agee & Leach, Inc.
(2) Calculated pursuant to Rule 13d-3(d) under the Securities Exchange Act of
1934 ("Exchange Act"). Under Rule 13d-3(d), shares not outstanding which are
subject to options exercisable within 60 days are deemed outstanding for the
purpose of calculating the number and percentage owned by such person, but not
deemed outstanding for the purpose of calculating the percentage owned by any
other person listed. As of December 31, 1998, the Company had 750,790 shares of
Common Stock outstanding.
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(3) Messrs, McGinnis and Ralph are Named Executive Officers, directors and five
(5) percent shareholders. Each of Messrs, McGinnis and Ralph hold an option to
purchase up to 10,000 shares of Common Stock at $6.00 per share which are
currently exercisable.
(4) Mr. Holbrook is a director, 5% beneficial owner and served as Chairman and
CEO from August 27 through December 31, 1998.
(5) Mr. Holbrook (33,328 shares), Sterne, Agee & Leach Group, Inc. (99,948
shares) Sterne, Agee and Leach, Inc., (30,000 shares) and The Trust Company of
Sterne, Agee & Leach, Inc. (116,664 shares) constitute a voting group under Rule
13d-1 as defined in the Exchange Act. Mr. Holbrook disclaims beneficial
ownership of all securities held by Sterne, Agee & Leach Group, Inc., Sterne,
Agee & Leach, Inc. and The Trust Company of Sterne, Agee & Leach, Inc. Sterne,
Agee & Leach Group, Inc., Sterne, Agee & Leach, Inc. and The Trust Company of
Sterne, Agee & Leach, Inc. as trustees disclaim beneficial ownership of all
securities held by The Trust Company of Sterne, Agee & Leach, Inc. for the
benefit of third parties.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Pursuant to the Merger, each of Messrs. McGinnis and Ralph were issued
debentures of the Company in the principal amount $125,000 payable in
installment over three (3) years at an interest rate of 7.5% per annum.
AMENDMENT TO ARTICLES OF INCORPORATION
Bobby Allison has been expanding its business this year and, as
reflected in its annual report, now has as many as 30 retail locations. The
Company intends to continue its growth and expects to have approximately 50
retail locations by calendar year end. In order to effect these plans, the
Company needs to raise additional capital to cover the up front costs of opening
new retail locations. The Company is in the process of attempting to sell by
private placement additional equity as well as obtain additional commercial debt
financing to meet these needs. The Company intends to raise equity through the
issuance of shares of its Series C Convertible Preferred Stock but the Board of
Directors has determined that it is in the best interests of the Corporation to
amend certain rights and preferences of each of the series of preferred stock in
anticipation of the Company's conversion from a quasi public company to a true
public company and in order to effect the sale of the Series C Preferred Stock.
We have enclosed a consent of the holders of Common Stock to effect the proposed
amendments. See the proposed Fourth Amendment to the Amended and Restated
Articles of Incorporation attached hereto as Exhibit "A" ("Amendment").
The proposed Amendment provides for the approval by the holders of the
Common Stock of the following amendments to the Articles of Incorporation to
facilitate the proposed private placement and allow the Company to operate more
efficiently in the future (reference to the specific provision of Amendment are
in parentheticals):
(1) to amend the definition of the initial purchase price of the
Series C Preferred Stock to simply $25,000 from the price paid
by the holder not to be less than $25,000 (See Amendment No.
2);
(2) to improve the liquidation rights with respect to the Series C
Preferred Stock such that each of the holders of Series B
Preferred Stock and Series C Preferred Stock shall have equal
liquidation rights or receive distributions in the event of a
liquidation ratably without preference rather than the Series
B Preferred Stock having priority over the Series C Preferred
Stock (See Amendment Nos. 3 and 4);
(3) amend the per share conversion ratio of the Series C Preferred
Stock from 4,166 shares of Common Stock to such number of
shares as later determined by the Board of Directors which
amount will then formalized in a subsequent amendment to the
Articles of Incorporation effected by the Board of Directors
without further shareholder approval (See Amendment No. 5);
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(4) to limit the special voting rights of the Series A Preferred
Stock and Series B Preferred Stock on amendments to the
Articles of Incorporation to only future amendments to the
Articles of Incorporation which directly affect the rights,
powers or preferences of such series of Preferred Stock and to
expand this special voting right as so limited to the Series C
Preferred Stock (See Amendment No. 6);
(5) to eliminate various provisions with respect to the procedures
for meetings of the holders of Preferred Stock as such
provisions are covered in the Company's bylaws; except that
the bylaws allows for vote by consent as required by law
rather than unanimous consent and requires meetings to be
called by either the Chairman of the Board or the President
rather than the Secretary (See Amendment Nos. 1 and 6); and
(6) to rearrange certain provisions regarding the voting of the
Series B Preferred Stock (See Amendment No. 6).
By Order of the Board of Directors
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EXHIBIT A
FOURTH AMENDMENT TO AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BOBBY ALLISON WIRELESS CORPORATION
WHEREAS, Bobby Allison Wireless Corporation (the "Corporation"), a
Florida corporation, filed with the Florida Department of State on December 1,
1998 its Amended and Restated Articles of Incorporation (the "Articles"); and
WHEREAS, as permitted by Florida Statute ss.607.1001, the Corporation
reserved the right to amend the Articles pursuant to Article IX of the Articles;
and
WHEREAS, the Corporation amended the Articles pursuant to its First
Amendment to Amended And Restated Articles of Incorporation filed with the
Florida Department of State on December 28, 1998; and
WHEREAS, the Corporation amended the Articles pursuant to its Second
Amendment to Amended And Restated Articles of Incorporation filed with the
Florida Department of State on March 1, 1999; and
WHEREAS, the Corporation amended the Articles pursuant to its Third
Amendment to Amended And Restated Articles of Incorporation filed with the
Florida Department of State on June __, 1999 and effective July 5, 1999; and
WHEREAS, the Corporation desires to further amend its Articles to amend
certain provisions relating to the Series C Convertible Preferred Stock of the
Corporation; and
WHEREAS, the Corporation is owned by both common stockholders and
preferred stockholders, but the Corporation's preferred stockholders are not
entitled to vote with respect to the amendment hereinafter set forth; and
WHEREAS, the amendment hereinafter set forth has been adopted with the
consent of, and has been approved by, all of the Corporation's common
stockholders and all of the Corporation's Board of Directors.
NOW, THEREFORE, the Articles are hereby amended as follows:
1. Article IV, Section 4.2(a) shall be further amended by eliminating
the definition of "REQUIRED CONSENT" in its entirety.
2. Article IV, Section 4.2(a) shall be further amended by eliminating
the definition of SERIES C INITIAL PURCHASE PRICE in its entirety and inserting
the following definition in lieu thereof:
"SERIES C INITIAL PURCHASE PRICE shall mean $25,000 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
3. Article IV, Section 4.2(a) shall be amended by eliminating the
definition of SERIES B LIQUIDATION PREFERENCE and SERIES C LIQUIDATION
PREFERENCE in their entirety and inserting the following definition in lieu
thereof:
"SERIES B/C LIQUIDATION PREFERENCE" shall have the meaning set
forth in Section 4.2(c)(iv) hereof.
4. Article IV, Section 4.2(c)(iv) and (v) of the Articles shall be
deleted in their entirety and the following Article IV, Section 4.2(c)(iv) shall
be inserted in lieu thereof:
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(iv) In the event of any such Disposition, after the full amount of the
Series A Liquidation Preference has been paid to the holders of the Series A
Preferred Stock and before any payment or distribution shall be made to the
holders of the Common Stock or any other Subordinate Stock, the holders of
Series B Preferred Stock and Series C Preferred Stock shall be entitled to be
paid ratably without preference out of the Disposition Proceeds in cash, or, if
the Corporation does not have sufficient cash on hand to pay such amounts,
property of the Corporation at its fair market value as determined by the Board
of Directors, an amount (the "SERIES B/C LIQUIDATION PREFERENCE") equal to the
Series B Initial Purchase Price and Series C Initial Purchase Price,
respectively, plus any accrued but unpaid dividends. If upon any such
Disposition, the remaining assets of the Corporation available for distribution
to its shareholders shall be insufficient to pay the holders of the Series B
Preferred Stock and Series C Preferred Stock the full amount of the Series B/C
Liquidation Preference, the holders of the Series B Preferred Stock and Series C
Preferred Stock shall share ratably without preference among themselves in any
distribution of the remaining assets and funds of the Corporation in proportion
to the respective amounts that would otherwise be payable in respect of the
shares held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full.
5. Article IV, Section 4.2(d)(i)(1) of the Articles shall be deleted in
its entirety and the following Article IV, Section 4.2(d)(i)(1) shall be
inserted in lieu thereof:
(1) The holders of the Preferred Stock shall have the right,
at their option, to convert shares of Preferred Stock into shares of
Common Stock of the Corporation at any time and from time to time,
without the payment of additional consideration, into, with respect to
each share of Series A Preferred Stock and each share of Series B
Preferred Stock, four thousand one hundred sixty-six (4,166) shares of
fully paid and nonassessable shares of Common Stock and, with respect
to each share of Series C Preferred Stock, into such number of shares
of fully paid and nonassessable shares of Common Stock as set by the
Board of Directors of the Corporation in accordance with Florida
Statute ss.607.0602 which provides in pertinent part that prior to the
issuance of any Series C Preferred Stock, the Board of Directors shall
(i) determine such number of shares and (ii) deliver to the Department
of State for filing articles of amendment reflecting the so determined
number of shares for each share of Series C Preferred Stock (the
applicable conversion rate of each of the Series A Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock being
hereinafter referred to in each instance as the "CONVERSION RATE"). For
purposes of this Section 4.2, the Conversion Rate shall be subject to
adjustment as provided in Section 4.2(d)(ii)(2) and 4.2(d)(ii)(3)
below.
6. Article IV, Section 4.2(f) of the Articles shall be deleted in its
entirety and the following Article IV, Section 4.2(f) shall be inserted in lieu
thereof:
(f) VOTING RIGHTS. Except as otherwise set forth in this
Section 4.2(f) or as otherwise required by law, no share of Preferred
Stock issued and outstanding shall have the right to vote on any
matters presented to the holders of the Common Stock for vote.
(i) In addition to any vote or consent of
shareholders or directors required by law or these Amended and
Restated Articles of Incorporation, so long as any Preferred
Stock remains outstanding, the consent of the holders of such
Preferred Stock shall be necessary for effecting, validating
or permitting any amendment, alteration or repeal of any of
the provisions of (a) these Amended and Restated Articles of
Incorporation of the Corporation affecting the rights, power
and preferences of such series of Preferred Stock, or (b) any
agreement to do any of the foregoing.
(ii) The vote of the holders of the Series A
Preferred Stock shall be necessary
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for validating or permitting any authorization, issuance,
creation or increase in the authorized shares of any class or
series of equity security of the Corporation ranking senior to
or in parity with the Series A Preferred Stock or the issuance
of any debt securities. Debt securities shall not mean
commercial debt incurred in the ordinary course of business.
(iii)(1) The holders of Series B Preferred Stock,
voting as single class, shall have the right to elect
one-third (1/3) of the members of the Board of Directors of
the Corporation (the "SERIES B DIRECTORS") rounded up or down
to the nearest whole number. If any of the Series B Directors
shall cease to serve as a director before his or her term
shall expire, the holders of Series B Preferred Stock, then
outstanding may, at a special meeting of the holders or by the
written consent, elect a successor to hold office for the
unexpired term of the such Series B Director.
(2) The vote of the holders of Series B Preferred
Stock shall be necessary for validating or permitting any
authorization, issuance, creation or increase in the
authorized shares of any class or series of equity security of
the Corporation ranking senior to or in parity with the Series
B Preferred Stock or the issuance of any debt securities. Debt
securities shall not mean commercial debt incurred in the
ordinary course of business.
(iv) The vote of the holders of the Series C
Preferred Stock shall be necessary for validating or
permitting any authorization, issuance, creation or increase
in the authorized shares of any class or series of equity
security of the Corporation ranking senior to or in parity
with the Series C Preferred Stock or the issuance of any debt
securities. Debt securities shall not mean commercial debt
incurred in the ordinary course of business.
(v) The rights of the holders of the Preferred Stock
set forth in this Section 4.2(f) may be exercised by either
the vote at a special meeting of the holders of each series of
Preferred Stock at any annual meeting of stockholders held for
the purpose of electing directors or by the written consent of
the holders of such Preferred Stock, as applicable.
(vi) In the event of the failure of the Corporation
to pay any dividend as required by Section 4.2(b) or any
redemption as required by Section 4.2(e), then such failure
shall cause all of the shares of that series of Preferred
Stock to automatically, and without any action on the part of
any holder of such series of Preferred Stock, become fully
voting Preferred Stock (as if fully converted into Common
Stock) on all matters upon which the Common Stock may vote.
Such Preferred Stock will still have preferential voting
rights on the matters referred to in this Section 4.2(f).
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IN WITNESS WHEREOF, the undersigned officers of the Corporation have
executed this Fourth Amendment to Amended and Restated Articles of Incorporation
on the date or dates set forth below, to be effective on August , 1999.
BOBBY ALLISON WIRELESS CORPORATION
By:
---------------------------------------------
Robert L. McGinnis, as its Chairman of the
Board and Chief Executive Officer
Date:
-------------------------------------------
By:
---------------------------------------------
James L. Ralph, as its President and Secretary
Date:
-------------------------------------------
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BOBBY ALLISON WIRELESS CORPORATION
ACTION BY CONSENT OF COMMON SHAREHOLDERS
The undersigned persons, being at least a majority of the common
shareholders of Bobby Allison Wireless Corporation (the "Corporation"), a
Florida corporation, hereby adopt and approve this action by written consent
pursuant to Florida Statute ss.607.0704.
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Corporation to raise additional capital through the issuance of
up to a maximum $2,000,000 of its Series C Convertible Preferred Stock, par
value $1.00 per share, on a best efforts basis ("Offering"); and
WHEREAS, the Board of Directors has determined that it is necessary to
make certain amendments to the rights and preferences of the Series A Preferred
Stock, the 7.5% Series B Convertible Preferred Stock and the Series C
Convertible Preferred Stock in connection with the Offering contained in the
Fourth Amendment To Amended And Restated Articles of Incorporation; and
WHEREAS, the Board of Directors has submitted the applicable amendments
to the holders of the common shareholders for approval Florida corporate law;
and
NOW, THEREFORE, BE IT RESOLVED, by the holders of the Common Stock of
the Corporation, that the Fourth Amendment To Amended And Restated Articles of
Incorporation, which is attached hereto as Exhibit "A" ("Amendment"),
incorporated by reference, and made a part hereof, is hereby adopted and
approved in its entirety.
RESOLVED FURTHER, by the holders of the Common Stock of the
Corporation, that, the officers of the Corporation are authorized to take all
actions, expend all funds and execute and file all documents necessary to effect
the Amendment including, but not limited to, the filing of all documents with
the U.S. Securities and Exchange Commission and the Florida Department of State
necessary to effect the Amendment
IN WITNESS WHEREOF, the undersigned common shareholders have executed
this action on the date or dates set forth below.
------------------------------------------
Robert L. McGinnis
Date:
-------------------------------------
------------------------------------------
James L. Ralph
Date:
-------------------------------------
STERNE, AGEE & LEACH, INC.
------------------------------------------
James S. Holbrook, Jr., as its Chairman and CEO
Date:
-------------------------------------
THE TRUST COMPANY OF STERNE, AGEE & LEACH,
INC.
------------------------------------------
William Keith, as its President
Date:
-------------------------------------
<PAGE> 11
EXHIBIT A
FOURTH AMENDMENT TO AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BOBBY ALLISON WIRELESS CORPORATION
WHEREAS, Bobby Allison Wireless Corporation (the "Corporation"), a
Florida corporation, filed with the Florida Department of State on December 1,
1998 its Amended and Restated Articles of Incorporation (the "Articles"); and
WHEREAS, as permitted by Florida Statute ss.607.1001, the Corporation
reserved the right to amend the Articles pursuant to Article IX of the Articles;
and
WHEREAS, the Corporation amended the Articles pursuant to its First
Amendment to Amended And Restated Articles of Incorporation filed with the
Florida Department of State on December 28, 1998; and
WHEREAS, the Corporation amended the Articles pursuant to its Second
Amendment to Amended And Restated Articles of Incorporation filed with the
Florida Department of State on March 1, 1999; and
WHEREAS, the Corporation amended the Articles pursuant to its Third
Amendment to Amended And Restated Articles of Incorporation filed with the
Florida Department of State on June __, 1999 and effective July 5, 1999; and
WHEREAS, the Corporation desires to further amend its Articles to amend
certain provisions relating to the Series C Convertible Preferred Stock of the
Corporation; and
WHEREAS, the Corporation is owned by both common stockholders and
preferred stockholders, but the Corporation's preferred stockholders are not
entitled to vote with respect to the amendment hereinafter set forth; and
WHEREAS, the amendment hereinafter set forth has been adopted with the
consent of, and has been approved by, all of the Corporation's common
stockholders and all of the Corporation's Board of Directors.
NOW, THEREFORE, the Articles are hereby amended as follows:
1. Article IV, Section 4.2(a) shall be further amended by eliminating
the definition of "REQUIRED CONSENT" in its entirety.
2. Article IV, Section 4.2(a) shall be further amended by eliminating
the definition of SERIES C INITIAL PURCHASE PRICE in its entirety and inserting
the following definition in lieu thereof:
"SERIES C INITIAL PURCHASE PRICE shall mean $25,000 per share
(adjusted for stock dividends, stock splits, reverse stock splits,
combinations and the like).
3. Article IV, Section 4.2(a) shall be amended by eliminating the
definition of SERIES B LIQUIDATION PREFERENCE and SERIES C LIQUIDATION
PREFERENCE in their entirety and inserting the following definition in lieu
thereof:
"SERIES B/C LIQUIDATION PREFERENCE" shall have the meaning set
forth in Section 4.2(c)(iv) hereof.
4. Article IV, Section 4.2(c)(iv) and (v) of the Articles shall be
deleted in their entirety and the following Article IV, Section 4.2(c)(iv) shall
be inserted in lieu thereof:
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(iv) In the event of any such Disposition, after the full amount of the
Series A Liquidation Preference has been paid to the holders of the Series A
Preferred Stock and before any payment or distribution shall be made to the
holders of the Common Stock or any other Subordinate Stock, the holders of
Series B Preferred Stock and Series C Preferred Stock shall be entitled to be
paid ratably without preference out of the Disposition Proceeds in cash, or, if
the Corporation does not have sufficient cash on hand to pay such amounts,
property of the Corporation at its fair market value as determined by the Board
of Directors, an amount (the "SERIES B/C LIQUIDATION PREFERENCE") equal to the
Series B Initial Purchase Price and Series C Initial Purchase Price,
respectively, plus any accrued but unpaid dividends. If upon any such
Disposition, the remaining assets of the Corporation available for distribution
to its shareholders shall be insufficient to pay the holders of the Series B
Preferred Stock and Series C Preferred Stock the full amount of the Series B/C
Liquidation Preference, the holders of the Series B Preferred Stock and Series C
Preferred Stock shall share ratably without preference among themselves in any
distribution of the remaining assets and funds of the Corporation in proportion
to the respective amounts that would otherwise be payable in respect of the
shares held by them upon such distribution if all amounts payable on or with
respect to such shares were paid in full.
5. Article IV, Section 4.2(d)(i)(1) of the Articles shall be deleted in
its entirety and the following Article IV, Section 4.2(d)(i)(1) shall be
inserted in lieu thereof:
(1) The holders of the Preferred Stock shall have the right,
at their option, to convert shares of Preferred Stock into shares of
Common Stock of the Corporation at any time and from time to time,
without the payment of additional consideration, into, with respect to
each share of Series A Preferred Stock and each share of Series B
Preferred Stock, four thousand one hundred sixty-six (4,166) shares of
fully paid and nonassessable shares of Common Stock and, with respect
to each share of Series C Preferred Stock, into such number of shares
of fully paid and nonassessable shares of Common Stock as set by the
Board of Directors of the Corporation in accordance with Florida
Statute ss.607.0602 which provides in pertinent part that prior to the
issuance of any Series C Preferred Stock, the Board of Directors shall
(i) determine such number of shares and (ii) deliver to the Department
of State for filing articles of amendment reflecting the so determined
number of shares for each share of Series C Preferred Stock (the
applicable conversion rate of each of the Series A Preferred Stock, the
Series B Preferred Stock and the Series C Preferred Stock being
hereinafter referred to in each instance as the "CONVERSION RATE"). For
purposes of this Section 4.2, the Conversion Rate shall be subject to
adjustment as provided in Section 4.2(d)(ii)(2) and 4.2(d)(ii)(3)
below.
6. Article IV, Section 4.2(f) of the Articles shall be deleted in its
entirety and the following Article IV, Section 4.2(f) shall be inserted in lieu
thereof:
(f) VOTING RIGHTS. Except as otherwise set forth in this
Section 4.2(f) or as otherwise required by law, no share of Preferred
Stock issued and outstanding shall have the right to vote on any
matters presented to the holders of the Common Stock for vote.
(i) In addition to any vote or consent of
shareholders or directors required by law or these Amended and
Restated Articles of Incorporation, so long as any Preferred
Stock remains outstanding, the consent of the holders of such
Preferred Stock shall be necessary for effecting, validating
or permitting any amendment, alteration or repeal of any of
the provisions of (a) these Amended and Restated Articles of
Incorporation of the Corporation affecting the rights, power
and preferences of such series of Preferred Stock, or (b) any
agreement to do any of the foregoing.
(ii) The vote of the holders of the Series A
Preferred Stock shall be necessary
2
<PAGE> 13
for validating or permitting any authorization, issuance,
creation or increase in the authorized shares of any class or
series of equity security of the Corporation ranking senior to
or in parity with the Series A Preferred Stock or the issuance
of any debt securities. Debt securities shall not mean
commercial debt incurred in the ordinary course of business.
(iii)(1) The holders of Series B Preferred Stock,
voting as single class, shall have the right to elect
one-third (1/3) of the members of the Board of Directors of
the Corporation (the "SERIES B DIRECTORS") rounded up or down
to the nearest whole number. If any of the Series B Directors
shall cease to serve as a director before his or her term
shall expire, the holders of Series B Preferred Stock, then
outstanding may, at a special meeting of the holders or by the
written consent, elect a successor to hold office for the
unexpired term of the such Series B Director.
(2) The vote of the holders of Series B Preferred
Stock shall be necessary for validating or permitting any
authorization, issuance, creation or increase in the
authorized shares of any class or series of equity security of
the Corporation ranking senior to or in parity with the Series
B Preferred Stock or the issuance of any debt securities. Debt
securities shall not mean commercial debt incurred in the
ordinary course of business.
(iv) The vote of the holders of the Series C
Preferred Stock shall be necessary for validating or
permitting any authorization, issuance, creation or increase
in the authorized shares of any class or series of equity
security of the Corporation ranking senior to or in parity
with the Series C Preferred Stock or the issuance of any debt
securities. Debt securities shall not mean commercial debt
incurred in the ordinary course of business.
(v) The rights of the holders of the Preferred Stock
set forth in this Section 4.2(f) may be exercised by either
the vote at a special meeting of the holders of each series of
Preferred Stock at any annual meeting of stockholders held for
the purpose of electing directors or by the written consent of
the holders of such Preferred Stock, as applicable.
(vi) In the event of the failure of the Corporation
to pay any dividend as required by Section 4.2(b) or any
redemption as required by Section 4.2(e), then such failure
shall cause all of the shares of that series of Preferred
Stock to automatically, and without any action on the part of
any holder of such series of Preferred Stock, become fully
voting Preferred Stock (as if fully converted into Common
Stock) on all matters upon which the Common Stock may vote.
Such Preferred Stock will still have preferential voting
rights on the matters referred to in this Section 4.2(f).
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<PAGE> 14
IN WITNESS WHEREOF, the undersigned officers of the Corporation have
executed this Fourth Amendment to Amended and Restated Articles of Incorporation
on the date or dates set forth below, to be effective on August , 1999.
BOBBY ALLISON WIRELESS CORPORATION
By:
---------------------------------------------
Robert L. McGinnis, as its Chairman of the
Board and Chief Executive Officer
Date:
-------------------------------------------
By:
---------------------------------------------
James L. Ralph, as its President and Secretary
Date:
-------------------------------------------
4
<PAGE> 15
[Bobby Allison Letterhead]
July , 1999
Dear Shareholder:
Bobby Allison Wireless Corporation (the "Company") has been expanding
its business this year and, as reflected in its annual report, now has as many
as 30 retail locations. The Company intends to continue its growth and expects
to have approximately 50 retail locations by calendar year end. In order to
effect these plans, the Company needs to raise additional capital to cover the
up front costs of opening new retail locations. The Company is in the process of
attempting to sell by private placement additional equity as well as obtain
additional commercial debt financing to meet these needs. The Company intends to
raise equity through the issuance of shares of its Series C Convertible
Preferred Stock but the Board of Directors has determined that it is in the best
interests of the Company to amend certain rights and preferences of each of
the series of Preferred Stock in anticipation of the Company's conversion from a
quasi public company to a true public company and in order to effect the sale of
the Series C Preferred Stock. We have enclosed a consent of the holders of
Common Stock to effect the proposed amendments.
The consent provides for the approval by the holders of the Common
Stock of the following amendments to the Articles of Incorporation to facilitate
the proposed private placement and allow the Company to operate more efficiently
in the future, all of which are set forth in the Fourth Amendment to Articles
and Restated Articles of Incorporation:
(1) to amend the definition of the initial purchase price of the
Series C Preferred Stock to simply $25,000 from the price paid
by the holder not to be less than $25,000 (See Amendment No.
2);
(2) to improve the liquidation rights with respect to the Series C
Preferred Stock such that each of the holders of Common Stock
and Series C Preferred Stock shall have equal liquidation
rights or receive distributions in the event of a liquidation
ratably without preference rather than the Series B Preferred
Stock having priority over the Series C Preferred Stock (See
Amendment Nos. 3 and 4);
(3) amend the per share conversion ratio of the Series C Preferred
Stock from 4,166 shares of Common Stock to such number of
shares as later determined by the Board of Directors which
amount will then formalized in a subsequent amendment to the
Articles of Incorporation effected by the Board of Directors
without further shareholder approval (See Amendment No. 5);
(4) to limit the special voting rights of the Series A Preferred
Stock and Series B Preferred Stock on amendments to the
Articles of Incorporation to only future
<PAGE> 16
amendments to the Articles of Incorporation which directly
affect the rights, powers or preferences of such series of
Preferred Stock and to expand this special voting right as so
limited to the Series C Preferred Stock (See Amendment No. 6);
(5) to eliminate various provisions with respect to the procedures
for meetings of the holders of Preferred Stock as such
provisions are covered in the Company's bylaws; except that
the bylaws allows for vote by consent as required by law
rather than unanimous consent and requires meetings to be
called by either the Chairman of the Board or the President
rather than the Secretary (See Amendment Nos. 1 and 6); and
(6) to rearrange certain provisions regarding the voting of the
Series B Preferred Stock (See Amendment No. 6).
We greatly appreciate your recent support of our Company and enjoyed
the opportunity to visit with those of you attending our recent annual meeting.
We would also greatly appreciate your further assistance with respect to these
necessary amendments to our Articles of Incorporation in anticipation of our
planned growth and the conversion of our Company from a quasi public company to
a legal public company by executing the consent where indicated and returning it
as soon as possible to me in the enclosed, self-addressed prepaid envelope.
Very truly yours,
Robert L. McGinnis
Chairman and Chief Executive Officer
