SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TUMBLEWEED, INC.
(Exact name of registrant as
specified in its charter)
Delaware 61-1327945
(State of Incorporation (IRS Employer
or organization) Identification
No.)
1900 Mellwood Avenue
Louisville, Kentucky 40206
(Address of principal (Zip Code)
executive offices)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. [ ] box. [ X ]
Securities Act registration statement file number to which this form
relates: 333-57931
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which class is to beregistered
Not Applicable
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share
(Title of Class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
The securities to be registered are shares of common stock, par
value $0.01 per share (the "Common Stock") of Tumbleweed, Inc., a
Delaware corporation (the "Company"). National City Bank, Cleveland,
Ohio, is transfer agent and registrar for the Common Stock.
General
The Company's Certificate of Amendment of Certificate of
Incorporation provides that the authorized capital stock of the
Company consists of 16,500,000 shares of Common Stock, par value $0.01
per share, and 1,000,000 shares of preferred stock ("Preferred
Stock"), par value $0.01 per share.
Dividends
Holders of Common Stock are entitled to receive dividends if, as
and when declared by the Board of Directors out of funds legally
available therefor, subject to any preferential rights of the holders
of shares of any class or series of Preferred Stock that may be
outstanding in the future. Currently, the Company is prohibited from
paying dividends on the Common Stock under the terms of its credit
facility with National City Bank.
Voting
The holders of Common Stock are entitled to one vote per share
owned of record in all matters submitted for the vote of the Company's
stockholders.
The holders of a majority of the shares of stock having voting
power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon
which by express provision of the General Corporate Law of the State
of Delaware a different vote is required.
Except as otherwise required by law and subject to the rights of
the holders of any class or series of Preferred Stock, special
meetings of stockholders of the Company for any purpose or purposes
may be called only by (a) the Board of Directors pursuant to a
resolution stating the purpose or purposes thereof approved by a
majority of the total number of directors which the Company would have
if there were no vacancies, (b) by the Chairman of the Board of
Directors or (c) by the President of the Company (the "President").
Liquidation
In the event of the liquidation, dissolution or winding-up of the
Company, the holders of Common Stock are entitled to share ratably in
the distribution of assets and funds remaining after (i) payment or
provisions for payment of all the debts and other liabilities of the
Company, and (ii) payments to holders of the Company's other
securities, if any, with liquidation preferences over the Common
Stock.
Preemptive Rights
The Company's shareholders do not have preemptive rights to
subscribe for additional shares should the capital stock of the
Company be increased by the sale or other issuance of shares.
Liability to Further Calls or Assessments
Shares of Common Stock, when issued upon the payment of
consideration determined by the Company's Board of Directors, shall be
validly issued, fully paid, and nonassessable.
Business Combinations
The Company is subject to Section 203 of the Delaware General
Corporation Law. In general, Section 203 prevents an "interested
stockholder" (defined generally as a person owning 15% or more of the
corporation's outstanding voting stock) from engaging in a "business
combination" (as defined in Section 203) with a Delaware corporation
for three years following the date the person became an interested
stockholder unless: (i) before the person became an interested
stockholder, the board of directors of the corporation approved either
the transaction in which the interested stockholder became an
interested person or the business combination; (ii) upon consummation
of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time such
transaction commenced (excluding stock held by directors who are also
officers of the corporation and by employee stock plans that do not
provide employees with the rights to determine confidentially whether
shares held subject to the plan will be tendered in a tender or
exchange offer); or (iii) following the transaction in which the
person became an interested stockholder, the business combination is
approved by the board of directors of the corporation and authorized
at a meeting of stockholders by the affirmative vote of the holders of
at least two-thirds of the outstanding voting stock of the corporation
not owned by the interested stockholder. Under Section 203, the
restrictions described above also do not apply to certain business
combinations proposed by an interested stockholder following the
public announcement or notification (as required by Section 203) of a
transaction that is one of certain extraordinary transactions
involving the corporation, is with or by a person who either has not
been an interested stockholder during the previous three years or who
became an interested stockholder with the approval of a majority of
the corporation's directors, and is approved or not opposed by a
majority of the board of directors then in office.
Preferred Stock
The Board of Directors has the authority to issue the authorized
shares of Preferred Stock in one or more series and to fix the
designations, powers, privileges and relative, participating, optional
or other special rights of the shares of each such series, and the
qualifications, limitations and restrictions, including, without
limitation, the number of shares constituting each such series,
dividend rates, redemption and sinking fund provisions, liquidation
and preferences, conversion rights, and voting rights, without any
further vote or action by the stockholders. The issuance of Preferred
Stock could decrease the amount of earnings and assets available for
distribution to holders of Common Stock or adversely affect the rights
and powers, including voting rights, of the holders of Common Stock.
The issuance of Preferred Stock also could have the effect of
delaying, deterring or preventing a change in control of the Company
without further action by the stockholders.
Corporate Governance Provisions
The Company's Board of Directors currently consists of eight
directors. The Company's Certificate of Incorporation and the By-laws
provide that: (i) the number of directors of the Company will be
fixed by resolution of the Board of Directors, but in no event will be
less than five nor more than 11 directors; (ii) the directors of the
Company in office from time to time will fill any vacancy or newly
created directorship on the Board of Directors; (iii) directors of the
Company may be removed only for cause by the holders of at least a
majority of the Company's voting stock; (iv) stockholder action can be
taken only at an annual or special meeting of stockholders and not by
written consent in lieu of a meeting; and (v) except as described
below, special meetings of stockholders may be called only by the
Chairman of the Board, the President of the Company or by a majority
of the total number of directors of the Company, and the business
permitted to be conducted at any such meeting is limited to that
stated in the notice of the special meeting. The By-laws also require
that stockholders desiring to bring any business before an annual
meeting of stockholders deliver written notice thereof to the
Secretary of the Company not fewer than 60 days nor more than 90 days
in advance of the annual meeting of stockholders; provided, however,
if the date of the meeting is not furnished to stockholders in a
notice or is not publicly disclosed by the Company more than 70 days
prior to the meeting, notice by the stockholder, to be timely, must be
delivered to the President or Secretary of the Company not later than
the close of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public disclosure
was made.
The By-laws also provide that stockholders desiring to nominate
persons for election as directors must make their nominations in
writing to the President or Secretary of the Company not fewer than 60
days nor more than 90 days prior to the scheduled date for the annual
meeting; provided, however, if fewer than 70 days notice or prior
public disclosure of the scheduled date for the annual meeting is
given or made, notice to the stockholders, to be timely, must be
delivered to the President or Secretary of the Company not later than
the close of business on the tenth day following the day on which such
notice of the date of the meeting was mailed or such public disclosure
was made.
Under applicable provisions of the Delaware General Corporation
Law, the approval of a Delaware corporation's board of directors, in
addition to stockholder approval, is required to adopt any amendment
to the corporation's certificate of incorporation, but a corporation's
by-laws may be amended either by action of its stockholders or, if the
corporation's certificate of incorporation so provides, its board of
directors. The Certificate of Incorporation and By-laws provide that
the provisions summarized above may not be amended by the
stockholders, nor may any provision inconsistent herewith be adopted
by the stockholders, without the affirmative vote of the holders of at
least 85% of the Company's voting stock, voting together as a single
class.
The foregoing provisions of the Certificate of Incorporation and
By-laws may discourage or make more difficult the acquisition of
control of the Company by means of a tender offer, open market
purchase, proxy contest or otherwise. These provisions may have the
effect of discouraging certain types of coercive takeover practices
and inadequate takeover bids and to encourage persons seeking to
acquire control of the Company first to negotiate with the Company.
Item 2. Exhibits
2 Agreement and Plan of Merger, dated as of June 23,
1998, between Tumbleweed, LLC and Tumblweed, LLC.
3.1 Certificate of Incorporation of Tumbleweed, Inc., as
amended.
*3.2 Bylaws.
*10.2 Revolving Line of Credit Note, dated August 8, 1996,
between Tumbleweed, LLC and National City Bank of
Kentucky.
___________
*Incorporated by reference to Registration No. 333-57931.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to
its registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
TUMBLEWEED, INC.
February 2, 1999 By: /s/ James M. Mulrooney
James M. Mulrooney, Executive
Vice President and Chief
Financial Officer
