<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 20, 1999
HEAFNER TIRE GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 333-61713 56-0754584
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification Number)
2105 WATER RIDGE PARKWAY, SUITE 500, CHARLOTTE, NORTH CAROLINA 28217
(Address of Principal Executive Offices) (Zip Code)
(704) 423-8989
(Registrant's Telephone Number, Including Area Code)
THE J.H. HEAFNER COMPANY, INC.
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On August 20, 1999, the Registrant reincorporated in Delaware. At the
same time, it changed its name from The J.H. Heafner Company, Inc. to Heafner
Tire Group, Inc.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
2.1 Articles of Merger of The J.H. Heafner Company, Inc., a North
Carolina corporation, into Heafner Tire Group, Inc., a
Delaware corporation, including Plan of Merger between The
J.H. Heafner Company, Inc. and Heafner Tire Group, Inc. made
as of August 10, 1999
3.1 Certificate of Incorporation of Heafner Tire Group, Inc.
3.2 By-Laws of Heafner Tire Group, Inc.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: August 30, 1999
HEAFNER TIRE GROUP, INC.
/s/ DONALD C. ROOF
-------------------------------------
Donald C. Roof
President and Chief Executive Officer
2
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EXHIBIT 2.1
COPP ID # 0503710
FILED
STATE OF NORTH CAROLINA 3:30 pm
AUG 20 1999
ARTICLES OF MERGER Effective ____________
ELAINE F. MARSHALL
OF SECRETARY OF STATE
NORTH CAROLINA
THE J.H. HEAFNER COMPANY, INC.
A NORTH CAROLINA CORPORATION
INTO
HEAFNER TIRE GROUP, INC.
A DELAWARE CORPORATION
Pursuant to ss.ss. 55-11-07, 55-11-04, and 55-11-05 of the North
Carolina Business Corporation Act (the "NYBCA"), Heafner Tire Group, Inc., a
corporation organized under the laws of Delaware (the "Surviving Corporation"),
hereby submits these Articles of Merger for the purpose of merging The J.H.
Heafner Company, Inc., a corporation organized under the laws of North Carolina
(the "Merging Corporation"), with and into the Surviving Corporation (such
transaction being the "Merger").
1. With respect to each corporation which is a party to the Merger, the
Plan of Merger attached hereto as Exhibit A and made a part hereof was duly
authorized and approved by unanimous consent and in the manner prescribed by law
by the Board of Directors of the Merging Corporation and was duly authorized and
approved by a majority of the shareholders of the Merging Corporation as
required by the NCBCA and the General Corporation Law of Delaware (the "DGCL").
2. The Merging Corporation owns all of the outstanding shares of each
class of stock of the Surviving Corporation. Pursuant to Section 55-11-04 of the
NCBCA and Section 253 of the DGCL, the Merger does not require the vote of the
shareholders of the Surviving Corporation.
3. The Merger is permitted by the law of the state of incorporation of
each foreign entity which is a party to the Merger.
4. Each foreign entity which is a party to the merger has complied or
shall comply with the applicable laws of its state of incorporation regarding
such Merger.
5. These Articles of Merger shall be effective upon filing.
<PAGE> 2
This 10th day of August 1999.
Heafner Tire Group, Inc.,
a Delaware corporation
By: /s/ DONALD C. ROOF
-------------------------------------
Name: Donald C. Roof
President and Chief Executive Officer
2
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EXHIBIT A
PLAN OF MERGER
THIS PLAN OF MERGER ("Plan") made as of August 10, 1999, by and
between Heafner Tire Group, Inc., a corporation organized under the laws of
Delaware ("Heafner") and The J. H. Heafner Company, Inc., a corporation
organized under the laws of North Carolina (the "Merging Corporation")
(collectively, Heafner and the Merging Corporation are herein referred to as
"Constituent Corporations").
W I T N E S S E T H:
WHEREAS, Heafner is a wholly-owned subsidiary of the Merging
Corporation;
WHEREAS, the Board of Directors of the Merging Corporation has
determined that it is advisable and in the best interests of such corporations
for the Merging Corporation to be merged with and into Heafner (the "Merger")
upon the terms and conditions set forth herein and in accordance with the
Delaware General Corporation Law and the North Carolina Business Corporation
Act for the sole purpose of re-domesticating the Surviving Corporation in the
State of Delaware;
WHEREAS, the Board of Directors of Merging Corporation intends for the
Merger to be effective for the sole purpose of reincorporating the Merging
Company in Delaware.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions contained herein,
at the Effective Time (as defined below), the Merging Corporation shall be
merged with and into Heafner, with Heafner being the surviving corporation (the
"Surviving Corporation"). Upon the effectiveness of the Merger, the Surviving
Corporation shall possess all of the rights, privileges, powers and franchises
of the Constituent Corporations, and all property (real, personal and mixed)
and other assets (tangible and intangible) belonging to the Constituent
Corporations shall be vested in the Surviving Corporation, and all such
property, assets, rights, privileges, powers and franchises shall thereafter
belong to the Surviving Corporation, and the title to any real estate vested by
deed or otherwise in the Constituent Corporations shall not revert or be in any
way impaired by reason of the Merger, but all rights of creditors and all liens
upon any property of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall, following the Merger, attach to the Surviving Corporation
and may be enforced against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by the Surviving Corporation. The
debts, liabilities and duties of the Merging Corporation which, following the
Merger, shall attach to and shall be assumed by the Surviving Corporation and
may be enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by the Surviving Corporation shall
include, but not be limited to, (i) all debts, liabilities and duties of the
Merging Corporation under an Indenture dated as of May 15, 1998, among the
Merging Corporation, certain of its subsidiaries and First Union
3
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National Bank, as trustee, (ii) all debts, liabilities and duties of the
Merging Corporation under an Indenture dated as of December 1, 1998, among the
Merging Corporation, certain of its subsidiaries and First Union National Bank,
as trustee (the "Series D Indenture"), and the $150,000,000 Series D 10% Senior
Notes Due 2008 issued under the Series D Indenture.
1.2 Consummation of the Merger. Promptly following and subject to the
satisfaction of the conditions set forth in Article IV herein, the parties
hereto shall cause Articles of Merger to be filed with the Secretary of State
of North Carolina in such form as required by, and executed in accordance with,
the relevant provisions of the North Carolina Business Corporation Act.
Furthermore, promptly following and subject to the satisfaction of the
conditions set forth in Article IV herein, the Merging Corporation shall cause
a Certificate of Ownership and Merger to be filed with the Secretary of State
of Delaware in such form as required by, and executed in accordance with, the
relevant provisions of the Delaware General Corporation Law. The Merger shall
be effective upon the completed filing of the Articles of Merger and the
Certificate of Ownership and Merger (the "Effective Time").
1.3 Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any further deeds,
assignments, assurances or any other acts are necessary, desirable or proper to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation,
the title to any property or right of the Constituent Corporations acquired or
to be acquired by reason, or as a result, of the Merger, the Merging
Corporation agrees that the Surviving Corporation and its officers shall
execute and deliver all such deeds, assignments and assurances and do all acts
necessary, desirable or proper to vest, perfect or confirm title to such
property or right in the Surviving Corporation, and the officers of the
Surviving Corporation are fully authorized in the name of the Merging
Corporation or otherwise to take any and all such action.
ARTICLE II
THE SURVIVING CORPORATION
2.1 Certificate of Incorporation. Following the Effective Time, the
Certificate of Incorporation of Heafner shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended or repealed
in accordance with the terms thereof and applicable law.
2.2 By-Laws. Following the Effective Time, the By-Laws of Heafner
shall be the By-Laws of the Surviving Corporation until amended or repealed in
accordance with the provisions thereof, the Certificate of Incorporation of the
Surviving Corporation and applicable law.
2.3 Directors. Following the Effective Time, the directors of Merging
Corporation shall continue to be the directors of the Surviving Corporation
until their respective successors are duly elected and qualified in the manner
provided in the By-Laws and the Certificate of Incorporation of the Surviving
Corporation and applicable law, or until their earlier resignation or removal.
2.4 Officers. Following the Effective Time, the officers of the
Merging Corporation shall be the officers of the Surviving Corporation until
their successors are duly elected and qualified in the manner provided in the
By-Laws and the Certificate of Incorporation of the
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Surviving Corporation and applicable law, or until their earlier resignation or
removal.
ARTICLE III
CONVERSION AND CANCELLATION OF SHARES, WARRANTS AND OPTIONS
3.1 Conversion and Cancellation of Shares, Warrants and Options. As of
the Effective Time, by virtue of the Merger and without any further action on
the part either of the Constituent Corporations or any holder of any of the
capital stock thereof or any holder of any warrants or options for such capital
stock:
(a) Each issued and outstanding share of Class A Common
Stock of the Merging Corporation shall be converted into the right to
receive one share of Class A Common Stock of Heafner.
(b) Each issued and outstanding share of Class B Common
Stock of the Merging Corporation shall be converted into the right to
receive one share of Class B Common Stock of Heafner.
(c) Each issued and outstanding share of Series A
Preferred Stock of the Merging Corporation shall be converted into the
right to receive one share of Series A Preferred Stock of Heafner.
(d) Each issued and outstanding share of Series B
Preferred Stock of the Merging Corporation shall be converted into the
right to receive one share of Series B Preferred Stock of Heafner.
(e) Each warrant to purchase Class A Common Stock of the
Merging Corporation issued and outstanding shall be converted into a
right to receive a warrant to purchase Class A Common Stock of
Heafner.
(f) Each option to purchase Class A Common Stock of the
Merging Corporation issued and outstanding shall be converted into a
right to receive an option to purchase Class A Common Stock of
Heafner.
(g) Each share of Class A Common Stock of Heafner issued
and outstanding and owned by Merging Corporation immediately prior to
the Effective Time shall cease to exist and shall be deemed cancelled,
retired and eliminated.
3.2 Equal Exchange. The exchange and conversion of the warrants and
the options of the Merging Corporation into warrants and options of the
Surviving Corporation is an equal exchange and will not result in a
modification, extension or renewal of any warrant or option under applicable
tax laws.
5
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ARTICLE IV
CONDITIONS TO CLOSING
The obligations of the Constituent Corporations to consummate the
transactions contemplated by this Plan are subject only to the approval of the
Merger at or before the Effective Time, by the affirmative vote or by the
written consent of a majority of the shareholders of the Merging Corporation
pursuant to Section 55-11-04 of the North Carolina Business Corporation Act.
6
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IN WITNESS WHEREOF, the parties hereto have executed this Plan as of
the date first written above.
THE J. H. HEAFNER COMPANY, INC., a North
Carolina corporation
By: /s/ Donald C. Roof
-------------------------------------
Donald Roof
President and Chief Executive Officer
HEAFNER TIRE GROUP, INC, a Delaware
corporation
By: /s/ Donald C. Roof
-------------------------------------
Name: Donald C. Roof
President and Chief Executive Officer
<PAGE> 1
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
HEAFNER TIRE GROUP, INC.
I, the undersigned, for the purposes of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware (as the
same may be amended, supplemented or repealed from time to time, the "Act"), do
hereby certify as follows:
ARTICLE 1
CORPORATE NAME.
The name of the Corporation is Heafner Tire Group, Inc.
ARTICLE 2
REGISTERED AGENT.
The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 1013 Centre
Road in the City of Wilmington, County of New Castle, and the name of the
registered agent of the Corporation in the State of Wilmington at such address
is Corporation Service Company.
ARTICLE 3
PURPOSE.
The purpose of the Corporation is to conduct any lawful business, to
promote any lawful purpose, and to engage in any lawful act or activity for
which a corporation may be organized under the Act.
ARTICLE 4
CAPITAL STOCK.
Section 4.1. Shares Authorized. The total number of shares of capital
stock which the Corporation shall have authority to issue is (i) 30,000,000
shares of Common Stock, par value of $.01 per share (the "Common Stock"), and
(ii) 11,500 shares of Preferred Stock with a par value of $.01 per share (the
"Preferred Stock").
Section 4.2. Common Stock. The Common Stock shall have such rights,
powers and privileges as provided in these Articles, in any amendment to these
Articles and under applicable law. Of the 30,000,000 shares of Common Stock
authorized for issuance by the Corporation, 10,000,000 shall initially be
designated Class A Common Stock (the "Class A Common Stock")
<PAGE> 2
and 20,000,000 shall initially be designated Class B Common Stock (the "Class B
Common Stock").
Section 4.3. Preferred Stock. The Preferred Stock shall have such
voting powers, designations, preferences, such other relative, participating,
optional and other special rights, and such qualifications, limitations and
restrictions as provided in these Articles and in any amendment to these
Articles. Of the 11,500 shares of Preferred Stock authorized for issuance by
the Corporation, 7,000 shares shall initially be designated Series A Cumulative
Redeemable Preferred Stock (the "Series A Preferred Stock") and 4,500 shares
shall initially be designated Series B Cumulative Redeemable Preferred Stock
(the "Series B Preferred Stock" and, together with the Series A Preferred
Stock, the "Kelly Preferred Stock"). The stated value of the Series A Preferred
Stock (the "Series A Liquidation Preference") shall be $1,000.00 per share. The
stated value of the Series B Preferred Stock (the "Series B Liquidation
Preference") shall initially be $1,000.00 per share and shall be adjusted from
time to time as provided in Section 6.3.
Section 4.4. Rank of Capital Stock. With respect to dividend rights
and other rights upon liquidation, dissolution or winding up of the
Corporation, (i) the Series A Preferred Stock and the Series B Preferred Stock
shall rank on a parity with each other and senior to the Common Stock and (ii)
the Class A Common Stock and the Class B Common Stock shall rank on a parity
with each other. Other classes or series of capital stock may, subject to the
provisions of these Articles and applicable law, be authorized by the Board of
Directors that rank (as to payment of dividends or distribution of assets upon
liquidation, dissolution or winding up) senior to ("Senior Stock"), on a parity
with ("Parity Stock") or junior to ("Junior Stock") other classes or series of
capital stock.
Section 4.5. No Preemptive Rights. No holder of shares of capital
stock of the Corporation shall have preemptive rights to acquire unissued
shares of capital stock of the Corporation under these Articles.
ARTICLE 5
COMMON STOCK.
Section 5.1. Voting Rights. (a) Each outstanding share of Class A
Common Stock shall be entitled to vote on each matter on which the stockholders
of the Corporation shall be entitled to vote, and each holder of Class A Common
Stock shall be entitled to twenty votes for each share of such stock held by
such holder.
(b) Each outstanding share of Class B Common Stock shall be entitled
to vote on each matter on which the stockholders of the Corporation shall be
entitled to vote, and each holder of Class B Common Stock shall be entitled to
one vote for each share of such stock held by such holder.
c) Except as otherwise provided by the Act, the holders of Class A
Common Stock and the holders of Class B Common Stock shall vote together as a
single class on all matters on which the stockholders of the Corporation shall
be entitled to vote.
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Section 5.2. Dividends and Distributions. The holders of shares of
Class A Common Stock and the holders of Class B Common Stock shall be entitled
to receive dividends or other distributions, which must be identical for each
of the Class A Common Stock and the Class B Common Stock, out of the assets of
the Corporation legally available therefor when, as and if declared by the
Board of Directors.
Section 5.3. Liquidation, Dissolution or Winding Up. In the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, holders of Common Stock shall be entitled to share ratably in the
net assets of the Corporation remaining after payment or provision for payment
of the debts and liabilities of the Corporation and all amounts payable to
holders of Senior Stock.
Section 5.4. Automatic Conversion of Class B Stock. Each share of
Class B Common Stock shall automatically convert into one share of Class A
Common Stock without the requirement of any further action on the part of the
Corporation or its stockholders upon the earliest to occur of (i) an initial
public offering of the Class A Common Stock in connection with a registration
of the Class A Common Stock under the Securities Act of 1933, as amended, (ii)
the occurrence of any condition or event which results in the acceleration of
the maturity of the indebtedness evidenced by the Debt Documents (as defined
below in Section 6.6), and (iii) an order for relief under Title 11 of the
United States Code is entered against the Company.
Section 5.6. Other Rights. Except as otherwise required by the Act or
as otherwise provided in these Articles, each share of Class A Common Stock and
each share of Class B Common Stock shall have identical powers, rights and
privileges.
ARTICLE 6
KELLY PREFERRED STOCK.
The Kelly Preferred Stock shall have the following voting powers, preferences
and other rights, qualifications, limitations and restrictions:
Section 6.1. Series A Dividends and Distributions. (a) Holders of
shares of Series A Preferred Stock, in preference to the holders of shares of
Common Stock and any shares of other capital stock of the Corporation other
than shares of Parity Stock or Senior Stock with respect to the Series A
Preferred Stock, shall be entitled to receive, when, as and if declared by the
Board of Directors, out of the assets of the Corporation legally available
therefor, cumulative cash dividends (the "4% Series A Dividends") on the Series
A Liquidation Preference of such shares at an annual rate of 4.0%; provided
that, if as of December 31, 1997 (i) the Corporation and its subsidiaries are
not ordering all of their respective requirements of "Winston" brand tires from
The Kelly-Springfield Tire Company, a division of The Goodyear Tire and Rubber
Company (together with its affiliates, "Kelly-Springfield"), and (ii)
Kelly-Springfield is otherwise ready, willing and able to supply the
Corporation and its subsidiaries with such "Winston" brand tires in accordance
with the terms set forth in the Supply Agreement (as defined below in Section
6.5(c)), then, beginning immediately thereafter and continuing until such time
as the earlier of (1) the Corporation and its affiliates are ordering all of
such "Winston" brand tires from Kelly-
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Springfield and (2) the Kelly Preferred Stock has been redeemed in full, the
annual rate of the 4% Series A Dividends shall be at the greater of (x) 4% and
(y) 120% of the Prime Rate (as defined below in Section 6.1(b)) (the "Adjusted
Series A Dividend Rate"). The 4% Series A Dividends shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months, and shall accrue
and be payable, in immediately available funds, due on the last Business Day of
each calendar month (each a "4% Dividend Monthly Payment Date"). Payment of 4%
Series A Dividends on shares of Series A Preferred Stock shall commence on the
first 4% Dividend Monthly Payment Date following the date of original issue of
such shares (the "Series A Issue Date"). The first payment of 4% Series A
Dividends on such shares shall be in an amount equal to the product of (i) the
quotient obtained by dividing (1) the product of the Series A Liquidation
Preference of such shares and 4.0% by (2) 12 and (ii) the quotient obtained by
dividing (x) the number of days from and including the Series A Issue Date up
to and excluding the initial 4% Dividend Monthly Payment Date by (y) 30. If
holders of shares of Series A Preferred Stock are entitled to receive 4% Series
A Dividends on a date other than a 4% Dividend Monthly Payment Date (a "4%
Dividend Special Payment Date"), such payment shall be in an amount equal to
the product of (i) the quotient obtained by dividing (1) the product of the
Series A Liquidation Preference of such shares and 4.0% or the Adjusted Series
A Dividend Rate, as applicable, by (2) 12 and (ii) the quotient obtained by
dividing (x) the number of days from and including the date of such immediately
preceding 4% Dividend Monthly Payment Date up to and excluding the 4% Dividend
Special Payment Date by (y) 30. All other payments of 4% Series A Dividends
shall accrue from and including the immediately preceding 4% Dividend Monthly
Payment Date or 4% Dividend Special Payment Date, as applicable, to but
excluding the following 4% Dividend Monthly Payment Date or 4% Dividend Special
Payment Date, as applicable. "Business Day" means any day other than a
Saturday, Sunday or other day on which banks in Atlanta, Georgia are authorized
to close.
(b) In addition to the 4% Series A Dividends, holders of Series A
Preferred Stock, in preference to the holders of shares of Common Stock and any
shares of other capital stock of the Corporation other than shares of Parity
Stock or Senior Stock with respect to the Series A Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
the assets of the Corporation legally available therefor, cumulative cash
dividends (the "Series A Additional Dividends" and, together with the 4% Series
A Dividends, the "Series A Dividends") in an amount equal to the product of the
Series A Liquidation Preference of such shares and the Applicable Rate (as
defined below). The Series A Additional Dividends shall accrue and be payable
in immediately available funds on the last Business Day of January of each year
(each an "Additional Dividend Payment Date"), with the first such Series A
Additional Dividend to accrue and be payable on the last Business Day of
January 1999; provided that, if in any calendar year immediately preceding an
Additional Dividend Payment Date a 4% Series A Dividend accrues and becomes
payable at the Adjusted Series A Dividend Rate, the amount of the Series A
Additional Dividend that accrues and becomes payable on such Additional
Dividend Payment Date shall be reduced by an amount equal to the excess, if
any, of (x) the aggregate amount of the 4% Series A Dividends that accrued and
became payable in such calendar year over (y) the aggregate amount of such
Series A Dividends that would have accrued and become payable in such calendar
year if the Adjusted Series A Dividend Rate had not applied in such calendar
year. The "Applicable Rate" for determining the amount of the Series A
Additional Dividend for each Additional Dividend Payment Date shall be the
percentage rate set forth
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opposite such date (and corresponding to the applicable number of Units
Purchased (as defined below)) set forth below:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------
Additional Dividend
Payment Date Units Purchased Applicable Rate
- --------------------------------------------------------------------------
<S> <C> <C>
January 1999 Less than 1,000,000 Standard Rate
1,000,000-1,099,999 4.0
1,100,000-1,199,999 3.0
1,200,000-1,299,999 2.0
1,300,000-1,399,999 1.0
1,400,000 or more 0.0
- -------------------------------------------------------------------------
January 2000 Less than 1,100,000 Standard Rate
1,100,000-1,199,999 4.0
1,200,000-1,299,999 3.0
1,300,000-1,399,999 2.0
1,400,000-1,499,999 1.0
1,500,000 or more 0.0
- -------------------------------------------------------------------------
January 2001 Less than 1,144,000 Standard Rate
1,144,001-1,247,999 4.0
1,248,000-1,351,999 3.0
1,352,000-1,455,999 2.0
1,456,000-1,559,999 1.0
1,560,000 or more 0.0
- -------------------------------------------------------------------------
January 2002 Less than 1,189,760 Standard Rate
1,189,761-1,297,919 4.0
1,297,920-1,406,079 3.0
1,406,080-1,514,239 2.0
1,514,240-1,622,399 1.0
1,622,400 or more 0.0
</TABLE>
5
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<TABLE>
<CAPTION>
- --------------------------------------------------------------------------
Additional Dividend
Payment Date Units Purchased Applicable Rate
- --------------------------------------------------------------------------
<S> <C> <C>
January 2003 Less than 1,237,350 Standard Rate
1,237,351-1,349,836 4.0
1,349,837-1,462,322 3.0
1,462,323-1,574,809 2.0
1,574,810-1,687,295 1.0
1,687,296 or more 0.0
- -------------------------------------------------------------------------
January 2004 Less than 1,286,844 Standard Rate
1,286,845-1,403,829 4.0
1,403,830-1,520,815 3.0
1,520,816-1,637,801 2.0
1,637,802-1,754,787 1.0
1,754,788 or more 0.0
- -------------------------------------------------------------------------
January 2005 Less than 1,338,318 Standard Rate
1,338,319-1,459,982 4.0
1,459,983-1,581,648 3.0
1,581,649-1,703,313 2.0
1,703,314-1,824,978 1.0
1,824,979 or more 0.0
- -------------------------------------------------------------------------
January 2006 Less than 1,391,851 Standard Rate
1,391,852-1,518,381 4.0
1,518,382-1,644,914 3.0
1,644,915-1,771,446 2.0
1,771,447-1,897,977 1.0
1,897,978 or more 0.0
- -------------------------------------------------------------------------
January 2007 Less than 1,447,525 Standard Rate
1,447,526-1,579,116 4.0
1,579,117-1,710,711 3.0
1,710,712-1,842,304 2.0
1,842,305-1,973,896 1.0
1,973,897 or more 0.0
- -------------------------------------------------------------------------
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------
Additional Dividend
Payment Date Units Purchased Applicable Rate
- --------------------------------------------------------------------------
<S> <C> <C>
January 2008 Less than 1,505,426 Standard Rate
1,505,427-1,642,281 4.0
1,642,282-1,779,139 3.0
1,779,140-1,915,996 2.0
1,915,997-2,052,852 1.0
2,052,853 or more 0.0
- -------------------------------------------------------------------------
</TABLE>
provided that, in no event shall the Applicable Rate be higher than the
Standard Rate. "Standard Rate" means the excess, if any, of (x) the Prime Rate
over (y) 4%. "Prime Rate" means the rate of interest publicly announced from
time to time by BankBoston, N.A., at its head office at 100 Federal Street,
Boston, Massachusetts as its "base" rate as in effect on the Business Day
immediately preceding the applicable dividend payment date. "Units Purchased"
means, for any Additional Dividend Payment Date, the net number of tires (other
than "Monarch" brand tires) purchased by the Corporation and its subsidiaries
from Kelly-Springfield during the calendar year immediately preceding such
Additional Dividend Payment Date, which number of tires shall not include an
amount equal to the sum of (x) 250,000 and (y) an amount equal to the number of
premium tires purchased by the Corporation and its affiliates from
Kelly-Springfield in 1996.
(c) If, as of the close of business on any 4% Dividend Monthly Payment
Date, there is a 4% Series A Dividend Arrearage (as hereinafter defined), an
additional dividend (the "4% Series A Makewhole Dividend") shall accrue on each
share of the Series A Preferred Stock for the period from and including such 4%
Dividend Monthly Payment Date to the earlier of (x) the date on which such 4%
Series A Dividend Arrearage is paid in full and (y) the next succeeding 4%
Dividend Monthly Payment Date, in an amount equal to the product of (i) the
Prime Rate (calculated for such period in accordance with Section 6.1(a)) and
(ii) the amount of such 4% Series A Dividend Arrearage as of such 4% Dividend
Monthly Payment Date. "4% Series A Dividend Arrearage" means, with respect to
each share of Series A Preferred Stock, as of any 4% Dividend Monthly Payment
Date, the excess, if any, of (i) all 4% Series A Dividends accrued to (but
excluding) such 4% Dividend Monthly Payment Date on such share over (ii) all 4%
Series A Dividends actually paid with respect to such share on or before the
close of business on such 4% Dividend Monthly Payment Date.
(d) If, as of the close of business on any Additional Dividend Payment
Date, there is a Series A Additional Dividend Arrearage (as hereinafter
defined), an additional dividend (the "Additional Series A Makewhole Dividend")
shall accrue on each share of the Series A Preferred Stock for the period from
and including such Additional Dividend Payment Date to the earlier of (x) the
date on which such Additional Series A Dividend Arrearage is paid in full and
(y) the next succeeding Additional Dividend Payment Date, in an amount equal to
the product of (i) the Prime Rate and (ii) the amount of such Additional Series
A Dividend Arrearage as of such
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<PAGE> 8
Additional Dividend Payment Date. "Additional Series A Dividend Arrearage"
means, with respect to each share of Series A Preferred Stock, as of any
Additional Dividend Payment Date, the excess, if any, of (i) all Series A
Additional Dividends accrued to (but excluding) such Additional Dividend
Payment Date on such share over (ii) all Series A Additional Dividends actually
paid with respect to such share on or before the close of business on such
Additional Dividend Payment Date.
(e) The 4% Series A Dividends shall accrue, and shall be cumulative
from the Series A Issue Date of the underlying shares, whether or not declared
by the Board of Directors. The Series A Additional Dividends shall accrue, and
shall be cumulative from the first day on which such dividends are due, whether
or not declared by the Board of Directors. The 4% Series A Makewhole Dividend
and the Additional Series A Makewhole Dividend, if any, shall accrue, and shall
be cumulative from the date on which a 4% Series A Dividend Arrearage or Series
A Additional Dividend Arrearage arises, whether or not declared by the Board of
Directors. If the Corporation makes a dividend payment on shares of Series A
Preferred Stock in an amount less than the total amount of accrued and payable
dividends on the underlying shares at such time, then the dividends paid shall
be allocated ratably on a share-by-share basis among all shares of Series A
Preferred Stock then outstanding. The Board of Directors may fix a record date
that is no more than sixty days and no less than ten days prior to any date
fixed for payment of a dividend declared on shares of Series A Preferred Stock
to determine the holders of shares of Series A Preferred Stock entitled to
receive such payment. Accumulated but unpaid dividends for any past dividend
periods or payment dates may be declared and paid at any time (without
reference to any regular payment date) to holders of record on a record date
fixed by the Board of Directors that is no more than sixty days and no less
than ten days preceding the date fixed for payment of such dividends.
(f) The holders of shares of Series A Preferred Stock shall not be
entitled to receive, and the Corporation shall not declare or pay thereon, any
dividends or other distributions except as provided herein. No interest or sum
of money in lieu of interest shall be payable in respect of any dividend
payment or payments on the shares of Series A Preferred Stock which may be in
arrears.
Section 6.2. Series B Dividends and Distributions. (a) If during any
calendar year beginning with 1998 the Corporation and its affiliates do not
purchase from Kelly-Springfield tires with an aggregate purchase price in an
amount equal to or greater than (i) for 1998, $60,000,000, (ii) for 1999,
$80,000,000, and (iii) for each calendar year thereafter, an amount averaging
at least 104% of the aggregate purchase price for tires purchased from
Kelly-Springfield in the prior calendar year, holders of shares of Series B
Preferred Stock, in preference to the holders of shares of Common Stock and any
shares of other capital stock of the Corporation other than shares of Parity
Stock or Senior Stock with respect to the Series B Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of Directors, out
the assets of the Corporation legally available therefor, cumulative cash
dividends (the "Series B Dividends") on the Series B Liquidation Preference of
such shares at the Prime Rate. The Series B Dividends shall accrue and be
payable in immediately available funds on the last Business Day of the month of
January following each such calendar year during which the applicable aggregate
purchase price threshold is not equaled or exceeded (each a "Series B
8
<PAGE> 9
Dividend Payment Date").
(b) If, as of the close of business on any Series B Dividend Payment
Date, there is a Series B Dividend Arrearage (as hereinafter defined), an
additional dividend (the "Series B Makewhole Dividend") shall accrue on each
share of the Series B Preferred Stock for the period from and including such
Series B Dividend Payment Date to the earlier of (x) the date on which such
Series B Dividend Arrearage is paid in full and (y) the next succeeding Series
B Dividend Payment Date, in an amount equal to the product of (i) the Prime
Rate and (ii) the amount of such Series B Dividend Arrearage as of such Series
B Dividend Payment Date. "Series B Dividend Arrearage" means, with respect to
each share of Series B Preferred Stock, as of any Series B Dividend Payment
Date, the excess, if any, of (i) all Series B Dividends accrued to (but
excluding) such Series B Dividend Payment Date on such share over (ii) all
Series B Dividends actually paid with respect to such share on or before the
close of business on such Series B Dividend Payment Date.
(c) Series B Dividends shall accrue, and shall be cumulative from the
first day on which such dividends are due, whether or not declared by the Board
of Directors. Series B Makewhole Dividends, if any, shall accrue, and shall be
cumulative from the date on which a Series B Dividend Arrearage arises. If the
Corporation makes a dividend payment on the shares of Series B Preferred Stock
in an amount less than the total amount of accrued and payable dividends on the
underlying shares at such time, then the dividends paid shall be allocated
ratably on a share-by-share basis among all shares of Series B Preferred Stock
then outstanding. The Board of Directors may fix a record date that is no more
than sixty days and no less than ten days prior to any date fixed for payment
of a dividend declared on shares of Series B Preferred Stock to determine the
holders of shares of Series B Preferred Stock entitled to receive such payment.
Accumulated but unpaid dividends for any past dividend periods or payment dates
may be declared and paid at any time (without reference to any regular payment
date) to holders of record on a record date fixed by the Board of Directors
that is no more than sixty days and no less than ten days preceding the date
fixed for payment of such dividends.
(d) The holders of shares of Series B Preferred Stock shall not be
entitled to receive, and the Corporation shall not declare or pay, any
dividends or other distributions except as provided herein. No interest or sum
of money in lieu of interest shall be payable in respect of any dividend
payment or payments on the shares of Series B Preferred Stock which may be in
arrears.
Section 6.3. Adjustment of Series B Liquidation Preference. After the
date of original issue of the shares of Series B Preferred Stock (the "Series B
Issue Date"), the Series B Liquidation Preference for the outstanding shares of
Series B Preferred Stock on any date (a "Series B Valuation Date") shall be an
amount per share equal to the excess, if any, of (i) $1,000 over (ii) the
quotient obtained by dividing (x) the aggregate Tire Purchase Credit (as
defined below) as of such Series B Valuation Date by (y) the total number of
shares of Series B Preferred Stock outstanding as of such Series B Valuation
Date. The "Tire Purchase Credit" as of any Series B Valuation Date shall be an
amount equal to (x) $1.00 per unit of "Broad Line" tires and (y) $2.00 per unit
of "HV&Z Performance" tires, in each case purchased by the Corporation and its
affiliates from and including the Series B Issue Date through such Series B
Valuation Date; provided that, for purposes of calculating the amount of the
Tire Purchase Credit, purchases of
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<PAGE> 10
"Value Line" and "OPP" tires shall not be counted.
Section 6.4. Voting Rights.
(a) Ownership of shares of Kelly Preferred Stock shall entitle the
holders to no voting rights except as provided in this Section 6.4 and under
applicable law.
(b) So long as any shares of either Series A Preferred Stock or Series
B Preferred Stock shall be outstanding, the Corporation shall not, without the
affirmative vote or written consent of the holders of a majority of the
aggregate number of shares of Series A Preferred Stock or Series B Preferred
Stock then outstanding, as applicable, each considered as a separate series,
(i) alter or change the powers, preferences or rights given to the Series A
Preferred Stock or Series B Preferred Stock, as applicable, by these Articles
or (ii) amend these Articles to increase the authorized amount of Series A
Preferred Stock or Series B Preferred Stock or to authorize or create any
Senior Stock or Parity Stock with respect to the Series A Preferred Stock or
Series B Preferred Stock. The amendment of these Articles to authorize or
create, or to increase the authorized amount of, any Junior Stock shall not be
deemed to alter or change the powers, preferences or rights given to the Series
A Preferred Stock or the Series B Preferred Stock by these Articles.
Notwithstanding the foregoing provisions, the affirmative vote or consent of
the holders of the Series A Preferred Stock or the Series B Preferred Stock, as
applicable, shall not be required for any alteration or change on which the
holders would otherwise be entitled to vote if, at or prior to the time that
any such alteration or change takes effect, due provision is made for the
redemption of all such shares of Series A Preferred Stock or Series B Preferred
Stock at the time outstanding.
(c) So long as Kelly-Springfield holds (of record and beneficially)
all of the outstanding shares of Kelly Preferred Stock, if on any date (1) any
condition or event shall occur which results in the acceleration of the
maturity of the indebtedness evidenced by the Debt Documents or (2) without the
requisite vote or consent of the holders of Series A Preferred Stock or Series
B Preferred Stock, as applicable, the Corporation adversely alters or changes
the powers, preferences or rights given to such series by these Articles, then
the number of directors constituting the Board of Directors shall, without
further action, be increased by the Specified Number (as defined below) and the
holders of shares of Kelly Preferred Stock shall have, in addition to the other
voting rights set forth in these Articles, the exclusive right, voting
separately as a single class, to elect such Specified Number of directors of
the Corporation to fill such newly created directorships, by written consent as
provided herein, or at a special meeting of such holders called as provided
herein. Any such additional directors shall continue as directors (subject to
reelection or removal as provided in Section 6.4(d)(ii)) and the holders of
Kelly Preferred Stock shall have such additional voting rights until such time
as (A) Kelly-Springfield no longer holds (of record and beneficially) all of
the outstanding shares of Kelly Preferred Stock, (B) in the case of any event
described in clause (1) above, such acceleration of the indebtedness evidenced
by the Debt Documents shall have been rescinded or such indebtedness shall have
been repaid in full, (C) in the case of clause (2) above, such adverse
alteration or change of the powers, preferences or rights given to the Series A
Preferred Stock or the Series B Preferred Stock, as applicable, shall have been
rescinded or (D) all of the outstanding shares of Kelly Preferred Stock shall
have been redeemed pursuant to Section 6.5, whichever is earlier, at
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<PAGE> 11
which time such additional directors shall cease to be directors and such
additional voting rights of the holders of Kelly Preferred Stock shall
terminate subject to revesting in the event of each and every subsequent event
of the character indicated above. "Specified Number" means a number of
directors equal to the number required so that the holders of Kelly Preferred
Stock will have the right to elect, voting separately as a single class, a
majority of the Board of Directors at any time.
(d) (i) The right of holders of shares of Kelly Preferred Stock to
take any action as provided in Section 6.4(c) may be exercised at any annual
meeting of stockholders or at a special meeting of holders of shares of Kelly
Preferred Stock held for such purpose as hereinafter provided or at any
adjournment thereof, or by the written consent, delivered to the Secretary of
the Corporation, of the holders of the minimum number of shares required to
take such action, which shall be a majority of the outstanding shares of Kelly
Preferred Stock unless otherwise required by law.
So long as such right to vote continues (and unless such right has
been exercised by written consent of the minimum number of shares required to
take such action), the President of the Company may call, and upon the written
request of holders of record of at least 10% of the outstanding shares of Kelly
Preferred Stock, addressed to the Secretary of the Company at the principal
office of the Company, shall call, a special meeting of the holders of shares
entitled to vote as provided herein. Such meeting shall be held within 30 days
after delivery of such request to the Secretary, at the place and upon the
notice provided by law and in the by-laws of the Company for the holding of
meetings of stockholders.
(ii) At each meeting of stockholders at which the holders of shares of
Kelly Preferred Stock shall have the right, voting separately as a single
class, to elect the directors of the Corporation as provided in Section 6.4(c),
the presence in person or by proxy of the holders of record of a majority of
the total number of shares of Kelly Preferred Stock then outstanding and
entitled to vote on the matter shall be necessary and sufficient to constitute
a quorum. At any such meeting or at any adjournment thereof:
(A) the absence of a quorum of the holders of shares of Kelly
Preferred Stock shall not prevent the election of directors other than
those to be elected by the holders of shares of Kelly Preferred Stock,
and the absence of a quorum of the holders of shares of any other
class or series of capital stock shall not prevent the election of
directors to be elected by the holders of shares of Kelly Preferred
Stock; and
(B) in the absence of a quorum of the holders of shares of
Kelly Preferred Stock, a majority of the holders of such shares
present in person or by proxy shall have the power to adjourn the
meeting as to the actions to be taken by the holders of shares of
Kelly Preferred Stock from time to time and place to place without
notice other than announcement at the meeting until a quorum shall be
present.
For taking of any action as provided in Section 6.4(c) by the holders
of shares of Kelly Preferred Stock, each such holder shall have one vote for
each share of such stock standing in his
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<PAGE> 12
name on the transfer books of the Corporation as of any record date fixed for
such purpose or, if no such date be fixed, at the close of business on the
Business Day next preceding the day on which notice is given, or if notice is
waived, at the close of business on the Business Day next preceding the day on
which the meeting is held or, if action is taken by written consent, at the
close of business on the Business Day next preceding the day on which such
consent is entered into; provided that shares of Kelly Preferred Stock owned by
the Corporation or any Affiliate of the Corporation shall not be deemed to be
outstanding for purposes of taking any action as provided in Section 6.4(c).
Each director elected by the holders of shares of Kelly Preferred
Stock as provided in Section 6.4(c) shall, unless his or her term shall expire
earlier in accordance with the provisions hereof, hold office until the annual
meeting of stockholders next succeeding his or her election or until his or her
successor, if any, is elected and qualified.
If any director so elected by the holders of Kelly Preferred Stock
shall cease to serve as a director before his or her term shall expire (except
by reason of the termination of the voting rights accorded to the holders of
Kelly Preferred Stock with respect to the Specified Number of directors in
accordance with Section 6.4(c)), the holders of the Kelly Preferred Stock then
outstanding and entitled to vote for such director may, by written consent as
provided herein, or at a special meeting of such holders called as provided
herein, elect a successor to hold office for the unexpired term of the director
whose place shall be vacant.
Any director elected by the holders of shares of Kelly Preferred Stock
voting separately as a single class may be removed from office with or without
cause by the vote or written consent of the holders of at least a majority of
the then outstanding shares of Kelly Preferred Stock, at the time of removal.
Section 6.5. Redemption.
(a) Subject to the restrictions contained in Section 6.6, beginning on
the last Business Day of December 2002, and on the last Business Day of each
June and December thereafter ending on the last Business Day of June 2007 (each
a "Series A Fixed Redemption Date"), the Corporation shall redeem, out of the
assets of the Corporation legally available therefor, a number of outstanding
shares of Series A Preferred Stock equal to the lesser of (x) 700 and (y) the
total number of shares of Series A Preferred Stock outstanding on such Series A
Fixed Redemption Date at a price per share equal to the sum of (1) 100% of the
Series A Liquidation Preference and (2) an amount per share equal to all
accrued and unpaid Series A Dividends, 4% Series A Makewhole Dividends and
Additional Series A Makewhole Dividends on such shares, whether or not declared
or payable, to such Series A Fixed Redemption Date, in immediately available
funds. If less than all of the outstanding shares of Series A Preferred Stock
are to be redeemed pursuant to this Section 6.5(a), shares shall be redeemed
from all holders of outstanding Series A Preferred Stock on the date the
redemption notice specified in Section 6.5(g) is mailed, pro rata in proportion
(to the extent practicable) to the number of shares of Series A Preferred Stock
held by each such holder. No fractions of shares shall be redeemed pursuant to
this Section 6.5(a).
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<PAGE> 13
(b) Subject to the restrictions contained in Section 6.6, on the last
business day of June 2007 (the "Series B Fixed Redemption Date"), the
Corporation shall redeem, out of the assets of the Corporation legally
available therefor, all of the outstanding shares of Series B Preferred Stock
at a price per share equal to the sum of (1) 100% of the Series B Liquidation
Preference and (2) an amount per share equal to all accrued and unpaid Series B
Dividends and Series B Makewhole Dividends on such shares, whether or not
declared or payable, to the Series B Fixed Redemption Date, in immediately
available funds.
(c) Subject to the restrictions contained in Section 6.6, no later
than 30 Business Days after the termination of the Supply Agreement (the
"Supply Agreement") to be entered into by and between the Corporation and
Kelly-Springfield in connection with Kelly-Springfield's purchase of the Kelly
Preferred Stock (the "Kelly Mandatory Redemption Date"), the Corporation shall
redeem, out of the assets of the Corporation legally available therefor, all of
the shares of Kelly Preferred Stock outstanding on the Kelly Mandatory
Redemption Date at a price per share equal to the sum of (1) the product of (x)
100% of the Series A Liquidation Preference or the Series B Liquidation
Preference, as applicable, and (y) the Applicable Premium then in effect as
provided in paragraph (f) below and (2) an amount per share equal to all
accrued and unpaid Series A Dividends, 4% Series A Makewhole Dividends and
Additional Series A Makewhole Dividends or Series B Dividends and Series B
Makewhole Dividends, as applicable, whether or not declared or payable, to the
Kelly Mandatory Redemption Date, in immediately available funds.
(d) Subject to the restrictions contained in Section 6.6, if, at any
time after the Series A Issue Date a Change of Control (as defined below)
occurs, the Corporation shall, within 10 Business Days after such occurrence,
send notice of such occurrence to the holders of Kelly Preferred Stock. If,
within 10 Business Days of such notice, (i) the holders of all (but not less
than all) of the outstanding shares of Kelly Preferred Stock send notice to the
Corporation specifying that such holders thereby request that the Corporation
redeem all of the outstanding shares of Kelly Preferred Stock held by each such
holder and (ii) Kelly-Springfield agrees in writing to the termination of the
Supply Agreement, the Corporation shall redeem, out of the assets of the
Corporation legally available therefor, all such shares within 30 Business Days
of the Corporation's receipt of all such requests (the "Change of Control
Redemption Date") at a price per share equal to the sum of (1) the product of
(x) 100% of the Series A Liquidation Preference or the Series B Liquidation
Preference, as applicable, and (y) the Applicable Premium then in effect as
provided in paragraph (f) below and (2) an amount per share equal to all
accrued and unpaid Series A Dividends, 4% Series A Makewhole Dividends and
Additional Series A Makewhole Dividends or Series B Dividends and Series B
Makewhole Dividends, as applicable, whether or not declared or payable, to the
Change of Control Redemption Date, in immediately available funds.
"Change of Control" means such time as (i) any person or "group"
(within the meaning of Section 13(d) of the Securities Exchange Act of 1934
(the "Exchange Act") other than the Principal Shareholders (as defined below),
Family Members (as defined below) or Kelly-Springfield is or becomes the
beneficial owner, directly or indirectly, of outstanding shares of capital
stock of the Corporation, entitling such person or persons to exercise 50% or
more of the total votes entitled to be cast at a regular or special meeting, or
by action by written consent, of
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<PAGE> 14
stockholders of he Corporation (the term "beneficial owner" shall be determined
in accordance with Rule 13d-3, promulgated by the Securities and Exchange
Commission under the Exchange Act), (ii) a majority of the Board of Directors
shall consist of persons other than Continuing Directors (the term "Continuing
Director" shall mean any member of the Board of Directors on the Series A Issue
Date, any member of the Board of Directors elected by Kelly-Springfield
pursuant to Section 6.4(c) of these Articles and any other member of the Board
of Directors who shall be recommended or elected to succeed or become a
Continuing Director by a majority of Continuing Directors who are then members
of the Board of Directors), (iii) the stockholders of the Corporation shall
have approved a recapitalization, reorganization, merger, consolidation or
similar transaction, in each case, with respect to which all or substantially
all the persons who were the respective beneficial owners of the outstanding
shares of capital stock of the Corporation immediately prior to such
recapitalization, reorganization, merger, consolidation or similar transaction
will beneficially own, directly or indirectly, less than 50% of the combined
voting power of the then outstanding shares of capital stock of the Corporation
resulting from such recapitalization, reorganization, merger consolidation or
similar transaction; or (iv) the stockholders of the Corporation shall have
approved the sale or other disposition of all or substantially all the assets
of the Corporation in one transaction or in a series of related transactions to
a person not owning or controlling, or any entity not owned or controlled by
the holders of, directly or indirectly, 50% or more of the combined voting
power of the outstanding shares of capital stock of the Corporation immediately
prior to such disposition. "Family Member" means (i) a member of a Principal
Shareholder's family, which shall include her or his ancestors, spouse,
siblings, descendants or spouses (or surviving spouse) of descendants, or (ii)
a trust, corporation, partnership or other entity, all of the beneficial
interests in which shall be held by a Principal Shareholder or one or more
persons described in clause (I); provided, that during the period any such
trust, corporation, partnership or other entity holds any right, title or
interest in any Common Stock, no Person other than such Principal Shareholder
or one or more Family Members of such Principal Shareholder of the type listed
in clause (i) may be or become beneficiaries, stockholders or limited or
general partners or owners thereof. "Principal Shareholders" means Ann Heafner
Gaither, William H. Gaither, Susan Gaither Jones and Thomas R. Jones.
(e) Subject to the restrictions contained in Section 6.6, at any time
after the Series A Issue Date, the Corporation may, in its sole discretion,
redeem all (but not less than all) of the outstanding shares of Kelly Preferred
Stock, out of the assets of the Corporation legally available therefor, at a
price per share equal to the sum of (1) the product of (x) 100% of the Series A
Liquidation Preference or the Series B Liquidation Preference, as applicable,
and (y) the Applicable Premium then in effect as provided in paragraph (f)
below and (2) an amount per share equal to all accrued and unpaid Series A
Dividends, 4% Series A Makewhole Dividends and Additional Series A Makewhole
Dividends or Series B Dividends and Series B Makewhole Dividends, as
applicable, whether or not declared or payable, to the Optional Redemption Date
(as defined below), in immediately available funds. "Optional Redemption Date"
means, with respect to a redemption pursuant to this Section 6.5(e), the date
specified for such redemption in the notice to the holders of the Kelly
Preferred Stock required under Section 6.5(g).
(f) The "Applicable Premium" for each of the following periods shall
be the number set forth opposite such period below:
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<PAGE> 15
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
Period Applicable Premium
- ----------------------------------------------------------------------------------
<S> <C>
Series A Issue Date through first anniversary 1.22
- ----------------------------------------------------------------------------------
After first anniversary through second anniversary 1.20
- ----------------------------------------------------------------------------------
After second anniversary through third anniversary 1.18
- ----------------------------------------------------------------------------------
After third anniversary through fourth anniversary 1.15
- ----------------------------------------------------------------------------------
After fourth anniversary through fifth anniversary 1.10
- ----------------------------------------------------------------------------------
After fifth anniversary 1.00
- ----------------------------------------------------------------------------------
</TABLE>
(g) Notice of any redemption of shares of Kelly Preferred Stock
pursuant to this Section 6.5 shall be mailed at least 10, but not more than 30,
days prior to the date fixed for redemption to each holder of shares of Kelly
Preferred Stock to be redeemed, at such holder's address as it appears on the
transfer books of the Corporation. Such notice shall include instructions for
the surrender of the Kelly Preferred Stock to be redeemed and the receipt of
payment therefor. In order to facilitate the redemption of shares of Kelly
Preferred Stock pursuant to this Section 6.5, the Board of Directors may fix a
record date for the determination of shares of Kelly Preferred Stock to be
redeemed, or may cause the transfer books of the Corporation for the Kelly
Preferred Stock to be closed, not more than 30 days or less than 10 days prior
to the date fixed for such redemption.
(h) Notice of redemption having been given as aforesaid, upon the date
fixed for redemption in respect of shares of Kelly Preferred Stock to be
redeemed pursuant to this Section 6.5, notwithstanding that any certificates
for such shares shall not have been surrendered for cancellation, from and
after the date of redemption designated in the notice of redemption, (i) the
shares of Kelly Preferred Stock represented thereby shall no longer be deemed
outstanding, (ii) the rights to receive dividends thereon shall cease to
accrue, and (iii) all rights of the holders of shares of Kelly Preferred Stock
to be redeemed shall cease and terminate, excepting only the right to receive
the applicable redemption price.
Section 6.6. Limitations on Mandatory Redemption and Dividends.
Notwithstanding anything to the contrary in these Articles, so long as any
amounts are outstanding under any Debt Documents (as defined below) or any
commitments to lend under the Debt Documents have not been terminated, the
Corporation shall not make payment in respect of any redemption permitted or
otherwise required by Section 6.5, or declare, make or pay any dividend or
distribution in respect of any shares of Kelly Preferred Stock if any Event of
Default (as defined in the Debt Documents) or default under any of the Debt
Documents or any event which, upon notice or lapse of time, or both, would
constitute an Event of Default has occurred and is continuing or would result
therefrom and has not been cured or waived in writing by the requisite vote of
the
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<PAGE> 16
holders of the indebtedness represented by the Debt Documents. "Debt Documents"
means the Loan and Security Agreement, dated as of the Series A Issue Date
between the Corporation, Oliver & Winston, Inc., the financial institutions
party thereto and BankBoston, N.A., as agent, and the Senior Subordinated Note
and Warrant Purchase Agreement, dated the Series A Issue Date, by and among the
Corporation and The 1818 Mezzanine Fund, L.P., and the notes, mortgages,
security documents, guaranties and other agreements entered into in connection
therewith (each as amended, modified, supplemented and/or restated from time to
time in accordance with its terms, including any replacement agreement therefor
and any refinancing of the debt incurred thereunder, which refinancing may
result in a greater principal amount outstanding in connection therewith).
Section 6.7. Reacquired Shares. Any shares of Kelly Preferred Stock
exchanged, redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares of Kelly Preferred Stock shall upon their cancellation
become authorized but unissued shares of preferred stock, par value $.01 per
share, of the Corporation and, upon the filing of an appropriate charter
amendment with the Secretary of State of the State of Delaware, may be reissued
as part of another series of preferred stock, par value $.01 per share, of the
Corporation subject to the conditions or restrictions on issuance set forth
herein, but in any event may not be reissued as shares of Kelly Preferred Stock
or other Parity Stock unless all of the shares of Kelly Preferred Stock shall
have already been redeemed.
Section 6.8. Liquidation, Dissolution or Winding Up. (a) If the
Corporation shall commence a voluntary case under the United States bankruptcy
laws or any applicable bankruptcy, insolvency or similar law of any other
country, or consent to the entry of an order for relief in an involuntary case
under any such law or to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Corporation
or of any substantial part of its property, or make an assignment for the
benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or if a decree or order for relief in respect of
the Corporation shall be entered by a court having jurisdiction in the premises
in an involuntary case under the United States bankruptcy laws or any
applicable bankruptcy, insolvency or similar law of any other country, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Corporation or of any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and on
account of any such event the Corporation shall liquidate, dissolve or wind up,
or if the Corporation shall otherwise liquidate, dissolve or wind up, no
distribution shall be made (i) to the holders of shares of Junior Stock with
respect to the Kelly Preferred Stock unless, prior thereto, the holders of
shares of Kelly Preferred Stock shall have received an amount equal to the
Series A Liquidation Preference or the Series B Liquidation Preference, as
applicable, plus all accrued and unpaid dividends, whether or not declared or
currently payable, to the date of distribution, with respect to each
outstanding share, or (ii) to the holders of shares of Parity Stock with
respect to the Kelly Preferred Stock, except distributions made ratably on the
Kelly Preferred Stock and all other Parity Stock in proportion to the total
amounts to which the holders of all shares of Kelly Preferred Stock and other
Parity Stock are entitled upon such liquidation, dissolution or winding up.
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(b) Neither the consolidation or merger of the Corporation with or
into any other person or entity nor the sale, lease, exchange (for cash, shares
of stock, securities or other consideration) or other distribution to another
person or entity of all or substantially all the assets, property or business
of the Corporation shall be deemed to be a liquidation, dissolution or winding
up of the Corporation for purposes of this Section 6.8.
Section 6.9. Exercise of Rights. (a) The rights of holders of shares
of Kelly Preferred Stock to take any action as provided in Article 6 hereof may
be exercised at any annual meeting of stockholders or by the written consent,
delivered to the Secretary of the Corporation, of the holders of the minimum
number of shares required to take such action, which shall be a majority of the
outstanding shares of Series A Preferred Stock or Series B Preferred Stock, as
applicable, unless otherwise required by law.
(b) For taking of any action as provided in this Article 6 by the
holders of shares of Kelly Preferred Stock, each such holder shall have one
vote for each share of such stock standing in its name on the transfer books of
the Corporation as of any record date fixed for such purpose or, if no such
date be fixed, at the close of business on the Business Day next preceding the
day on which notice is given, or if notice is waived, at the close of business
on the Business Day next preceding the day on which the meeting is held.
ARTICLE 7
CORPORATE EXISTENCE.
The Corporation is to have perpetual existence.
ARTICLE 8
CORPORATE GOVERNANCE.
For the management of the business and for the conduct of the affairs of the
Corporation, and in further definition, limitation, and regulation of the
powers of the Corporation and of its directors and of its stockholders or any
class thereof, as the case may be, it is further provided:
Section 8.1. Management. The management of the business and the
conduct of the affairs of the Corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the By-laws. The
election of directors need not be by written ballot except and to the extent
provided in the By-laws of the Corporation.
Section 8.2. Amendment of Articles. From time to time any of the
provisions of these Articles may be amended, altered or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation
by these Articles are granted subject to the provisions of this Section 8.2.
Section 8.3. Amendment of By-laws. The Board of Directors shall,
subject to Section 109 of the Act, have the power to adopt, amend, or repeal
the By-laws of the Corporation.
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Section 8.4. Indemnification of Directors. To the fullest extent
permitted by the Act, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. No amendment, modification or repeal of this Section 8.4
shall adversely affect any right or protection of a director that exists at the
time of such amendment, modification or repeal.
Section 8.5. Indemnification of Authorized Persons. The Corporation
shall, to the fullest extent permitted by the Act, indemnify any and all
persons whom it shall have power to indemnify thereunder from and against any
and all of the expenses, liabilities, or other matters referred to in or
covered by the Act and may advance funds to such persons in respect of such
expenses, liabilities or other matters. The indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any By-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent, and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
The name and the mailing address of the incorporator are:
Edgar B. Fisher, III
NationsBank Corporate Center
100 North Tryon Street, Floor 47
Charlotte, North Carolina 28202-4003
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State Delaware, do make this certificate, hereby declaring and certifying that
this is my act and deed and the facts herein stated are true, and accordingly
have hereunto set my hand this 28th day of December, 1998.
/s/ Edgar B. Fisher, III
-----------------------------------
Edgar B. Fisher, III, Incorporator
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 08/20/1999
991348900 - 2985653
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
THE J.H. HEAFNER COMPANY, INC.
INTO
HEAFNER TIRE GROUP, INC.
The J.H. HEAFNER COMPANY, INC., a North Carolina corporation, does
hereby certify pursuant to Section 253 and Section 103 of the Delaware General
Corporation Law as follows:
1. THE J.H. HEAFNER COMPANY, INC., a North Carolina corporation, owns
all of the outstanding shares of each class of stock of HEAFNER TIRE GROUP,
INC., a Delaware corporation.
2. THE J.H. HEAFNER COMPANY, INC. hereby merges itself into HEAFNER
TIRE GROUP, INC. (the "Merger"), with HEAFNER TIRE GROUP, INC. as the surviving
corporation pursuant to the resolutions of the Board of Directors of THE J.H.
HEAFNER COMPANY, INC., a copy of which is attached as Exhibit A hereto, which
were duly adopted by the Directors of THE J.H. HEAFNER COMPANY, INC.
at the August 10, 1999 Regular Meeting of the Directors.
3. The Merger has been adopted, approved, certified, executed and
acknowledged by THE J.H. HEAFNER COMPANY, INC. in accordance with the laws of
the State of North Carolina.
4. This Certificate of Ownership and Merger shall be effective upon
filing.
IN WITNESS WHEREOF, THE J.H. HEAFNER COMPANY, INC. has caused this
Certificate of Ownership and Merger to be signed by Donald Roof, its President
and Chief Executive Officer, this 10th day of August, 1999.
THE J.H. HEAFNER COMPANY, INC.
a North Carolina corporation
By: /s/ DONALD C. ROOF
--------------------------------------
Donald Roof
President and Chief Executive Officer
<PAGE> 20
EXHIBIT A
CERTIFIED COPY OF CORPORATION RESOLUTION OF
THE J.H. HEAFNER COMPANY, INC.
I hereby certify that I am the duly elected and qualified Secretary of
The J.H. Heafner Company, Inc., a corporation organized and existing under the
laws of the State of North Carolina; that the following is a true copy of
resolutions duly adopted by the Board of the Corporation on the 10th day of
August, 1999; and that such resolutions are in full force and effect and have
not been amended or rescinded:
On motion of William H. Gaither, seconded by Donald C. Roof, the Board
unanimously passed the following resolution:
RESOLVED, that the Plan of Merger be, and it hereby is, adopted and
approved by these resolutions on such terms and in such form as
approved by Donald C. Roof as President, or by J. Michael Gaither as
Executive Vice President and General Counsel of the Corporation, such
approval to be conclusively evidenced by the President's or the
Executive Vice President and General Counsel's execution and delivery
thereof; and
RESOLVED FURTHER, that the Plan of Merger provides for the pro rata
issuance of stock of Heafner Tire Group, Inc. to the holders of stock
of The J.H. Heafner Company, Inc. on surrender of any certificates
therefor; and
RESOLVED FURTHER, that the President or the Executive Vice President
and General Counsel, and for the purpose of certifications and
attestations, the Secretary of the Corporation be and they hereby are
authorized, empowered and directed to execute, deliver and perform, in
the name and on behalf of the Corporation, the Plan of Merger and the
transactions contemplated therein on such terms and in such form as
approved by such officer, such approval to be conclusively evidenced by
such officer's execution and delivery thereof; and
RESOLVED FURTHER, that the Merger shall be submitted to the
Shareholders for adoption and approval as provided under Section
55-11-04 of the NCBA, whether by special meeting of the Shareholders or
by written consent of the Shareholders pursuant to Section 55-7-04 of
the NCBCA and the President and Secretary be, and they hereby are,
authorized, at such officer's discretion, to call a special meeting of
the Shareholders or circulate a written consent, in either case, for
the sole purpose of approving the Merger; and
<PAGE> 21
RESOLVED FURTHER, that the Directors hereby recommend to the
Shareholders of the Corporation that the Merger be adopted and
approved; and
RESOLVED FURTHER, that, should the Merger be adopted and approved by
the Shareholders of the Corporation, the proper officers of the
Corporation be, and each of them hereby is, authorized, empowered and
directed to execute, deliver and file with the Secretary of State of
Delaware, the Secretary of State of North Carolina, and other state and
local officials all such documents as may be required by the laws of
the State of Delaware, the State of North Carolina, and other states to
effectuate such Merger in full, including, without limitation, an
Articles of Mergers and Certificate of Ownership and Merger.
In witness whereof, I have hereunto set my hand as Secretary and have
caused the corporate seal of the Corporation to be affixed hereto this 10th day
of August, 1999.
/s/ J. MICHAEL GAITHER
----------------------------------------
J. Michael Gaither, Secretary
The J.H. Heafner Company, Inc.
Sworn to and subscribed before me
This 10th day of August, 1999.
/s/ DEBORAH B. GARDNER
- ------------------------------------
Notary Public
My commission expires: Oct. 21, 2003
-------------
<PAGE> 1
EXHIBIT 3.2
BY-LAWS
OF
HEAFNER TIRE GROUP, INC.
Effective as of December 29, 1998
<PAGE> 2
BYLAWS
OF
HEAFNER TIRE GROUP, INC.
ARTICLE I.
OFFICES
Section 1. Principal Office: The principal office of the Corporation shall be
located at Charlotte, North Carolina, but the Corporation may have offices at
such other places, either within or without the State of North Carolina, as the
Board of Directors may from time to time determine, or as the affairs of the
Corporation may require.
ARTICLE II.
MEETING OF SHAREHOLDERS
Section 1. Place of Meetings: All meetings of shareholders shall be held at the
principal office of the Corporation, or at such other place, either within or
without the state of North Carolina, as shall be designated in the notice of
the meeting or agreed upon by a majority of the shareholders entitled to vote
thereat.
Section 2. Annual Meetings: The annual meeting of shareholders shall be held at
10:00 am. on the 1st day in March of each year, if not a legal holiday, but if
a legal holiday, then on the next day following not a legal holiday, for the
purpose of electing directors of the Corporation and for the transaction of
such other business as may be properly brought before the meeting.
Section 3. Substitute Annual Meeting: If the annual meeting shall not be held
on the day designated by these by-laws, a substitute annual meeting may be
called in accordance with the provisions of Section 4 of this Article. A
meeting so called shall be designated and treated for all purposes as the
annual meeting.
Section 4. Special Meetings: Special meetings of the shareholders may be called
at any time by the President, Secretary or Board of Directors of the
Corporation, or by any shareholder pursuant to the written request of the
holders of not less than one-tenth of all the shares entitled to vote at the
meeting.
Section 5. Notice of Meetings: Written or printed notice stating the time and
place of the meeting shall be delivered not less than ten or more than fifty
days before the date thereof, either personally or by mail, by or at the
direction of the President, the Secretary or other person calling the meeting,
to each shareholder of record entitled to vote at such meeting.
In the case of an annual or substitute annual meeting, the notice of meeting
need not specifically state the business to be transacted thereat. In the case
of a special meeting the notice of meeting shall specifically state the purpose
or purposes for which the meeting is called. When a meeting is adjourned for
thirty days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting.
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When a meeting is adjourned for less than thirty days in any one adjournment,
it is not necessary to give any notice of the adjourned meeting other than by
announcement at the meeting at which the adjournment is taken.
Section 6. Voting Lists: At least ten days before each meeting of shareholders
the Secretary of the Corporation shall prepare an alphabetical list of the
Corporation shareholders entitled to vote at such meetings, with the address of
and number of shares held by each, which list shall be kept on file at the
registered office of the Corporation for a period of ten days prior to such
meeting, and shall be subject to inspection by any shareholder at any time
during the usual business hours
Section 7. Quorum: The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at meetings of
shareholders.
Section 8. Informal Action by Shareholders: Any action which may be taken at a
meeting of the shareholders may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
persons who would be entitled to vote upon such action at a meeting, and filed
with the Secretary of the Corporation to be kept in the Corporate Minute Book.
ARTICLE III.
DIRECTORS
Section 1. General Powers: The business and affairs of the Corporation shall be
managed by the Board of Directors or by such Executive Committees as the Board
may establish pursuant to these by-laws.
Section 2. Number, Term and Qualifications: The minimum number of Directors of
the Corporation shall be three. Each director shall hold office until his
death, resignation, retirement, removal, disqualification, or his successor is
elected and qualified. Directors need not be residents of the State of North
Carolina or shareholders of the Corporation.
Section 3. Election of Directors: Except as provided in Section 4 of this
article, the directors shall be elected at the annual meeting of shareholders;
and these persons who receive the highest number of votes shall be deemed to
have been elected. If any shareholder so demands, election of Directors shall
be by ballot.
Section 4. Vacancies: A vacancy occurring in the Board of Directors may be
filled by a majority of the remaining Directors; though such remainder be less
than a quorum, or by the sole remaining Director; but a vacancy created by an
increase in the authorized number of Directors shall be filled only by election
at an annual meeting or at a special meeting of shareholders called for that
purpose. The shareholders may elect a director at any time to fill any vacancy
not filled by the directors.
Section 5. Chairman: There may be a Chairman of the Board of Directors elected
by the directors from their number at any meeting of the Board. The Chairman
shall preside at all meetings of the Board of Directors and perform such other
duties as may be directed by the Board.
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Section 6. Executive Committee: The Board of Directors may, by resolution
adopted by a majority of the number of directors fixed by these by-laws,
designate two or more directors to constitute an executive committee, which
committee to the extent provided in such resolution shall have and may exercise
all of the authority of the Board of Directors in the management of the
Corporation.
ARTICLE IV.
MEETING OF DIRECTORS
Section 1. Regular Meetings: A regular meeting of that Board of Directors shall
be held immediately after, and at the same place, as the annual meeting of
shareholders. In addition, the Board of Directors may provide, by resolution,
the time and place, either within or without the State of North Carolina, for
the holding of additional regular meetings.
Section 2. Special Meetings: Special meetings of the Board of Directors may be
called by or at the request of the President of the company of any two
directors. Such meetings may be held either within or without the State of
North Carolina.
Section 3. Notice of Meetings: Regular meetings of the Board of Directors may
be held without notice.
The person or persons calling a special meeting of the Board of Directors
shall, at least two days before the meeting, give notice thereof by any usual
means of communication. Such notice need not specify the purpose for which the
meeting is called.
Attendance by a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called.
Section 4. Quorum: A majority of the directors fixed by these by-laws shall
constitute a quorum for the transaction of business at my meeting of the Board
of Directors.
Section 5. Manner of Action: Except as otherwise provided in this section, 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 vote of a majority of the number of directors fixed by these by-laws shall
be required to adopt a resolution constituting an executive committee. The vote
of a majority of the directors then holding office shall be required to adopt,
amend or repeal, a by-law, or to adopt a resolution dissolving the Corporation
without action by the shareholders. Vacancies in the Board of Directors may be
filled as provided in Article III, Section 4 of these by-laws.
Section 6. Informal Action by Directors: Action taken by a majority of the
directors without a meeting is nevertheless Board action if written consent to
the action in question is signed by all the directors and filed with the
minutes of the proceedings of the Board, whether done before or after the
action so taken.
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ARTICLE V.
OFFICERS
Section 1. Number: The officers of the Corporation shall consist of President,
a Secretary, a Treasurer, and such Vice-Presidents, Assistant Secretaries,
Assistant Treasurers and other officers as the Board of Directors may from time
to time elect. Any two or more offices may be held by the same person, except
the office of President and Secretary.
Section 2. Election and Term: The officers of the Corporation shall be elected
by the Board of Directors. Such elections may be held at any regular or special
meeting of the Board. Each officer shall hold office until his death,
resignation, retirement, removal, disqualification, or his successor is elected
and qualifies.
Section 3. Removal: Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board with or without cause; but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4. Compensation: The compensation of all officers of the Corporation
shall be fixed by the Board of Directors.
Section 5. President: The President shall be the principal executive officer of
the Corporation, and, subject to the control of the Board of Directors, shall
supervise and control the management of the Corporation in accordance with
these by-laws.
He shall, when present, preside at all meetings of shareholders. He shall sign,
with any other proper officer, certificates for shares of the Corporation and
any deeds, mortgages, bonds, contracts or other instruments which may be
lawfully executed on behalf of the Corporation except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be delegated by the Board of Directors to
some other officer or agent; and, in general, he shall perform all duties
incident to the office of President and such other duties as may be prescribed
by the Board of Directors from time to time.
Section 6. Vice-Presidents: The Vice-Presidents in the order of their election,
unless otherwise determined by the Board of Directors, shall in the absence of
or disability of the President, perform the duties and exercise the powers of
that office. In addition, they shall perform such other duties and have such
other powers as the Board of Directors shall prescribe.
Section 7. Secretary: The Secretary shall keep accurate records of the acts and
proceedings of all meetings of shareholders and directors. He shall give all
notices required by law and by these by-laws. He shall have general charge of
the corporate books and records and of the corporate seal, and he shall affix
the corporate seal to any lawfully executed instrument requiring it. He shall
have general charge of the stock transfer books of the Corporation and shall
keep, at the registered or principal office of the Corporation, a record of
shareholders showing the name and address of each shareholder and the number of
shares and class of the shares held by each. He shall sign such instruments as
may require his signature, and, in general, shall perform all duties
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<PAGE> 6
incident to the office of the Secretary and such other duties as may be
assigned from time to time by the President or by the Board of Directors.
Section 8. Treasurer: The Treasurer shall have custody of all funds and
securities belonging to the Corporation and shall receive, deposit or disburse
the same under the direction of the Board of Directors. He shall keep full and
accurate accounts of the finances of the Corporation in books especially
provided for that purpose; and he shall cause a true statement of its assets
and liabilities as of the close of each fiscal year and of the results of its
operations and of changes in surplus for such fiscal year, all in reasonable
detail, including particulars as to convertible securities then outstanding, to
be made and filed at the registered or principal office of the Corporation
within four months after the end of such fiscal year. The statement so filed
shall be kept available for inspection by any shareholder for a period of ten
years; and the Treasurer shall mail or otherwise deliver a copy of the latest
such statement to any shareholder upon his written request therefor. The
treasurer shall, in general, perform all duties incident to this office and
such other duties as may be assigned to him from time to time by the President
or by the Board of Directors.
Section 9. Assistant Secretaries and Treasurers: The Assistant Secretaries and
Assistant Treasurers shall, in the absence or disability of the Secretary or
the Treasurer, respectively, perform the duties and exercise the powers of
these offices, and they shall, in general, perform such other duties as shall
be assigned to them by the Secretary or the Treasurer, respectively, or by the
President or by the Board of Directors.
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares: Certificates representing shares of the
Corporation shall be issued, in such form as the Board of Directors shall
determine, to every shareholder for the fully paid shares owned by him. These
certificates shall be signed by the President or any Vice-President and the
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer. They shall be
consecutively numbered or otherwise identified; and the name and address of the
persons to whom they are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the Corporation.
Section 2. Transfer of Shares: Transfer of shares shall be made on the stock
transfer books of the Corporation only upon surrender of the certificates for
the shares sought to be transferred by the record holder thereof or by his duly
authorized agent, transferee or legal representative. All certificates
surrendered for transfer shall be canceled before new certificates for the
transferred shares shall be issued.
ARTICLE VII.
GENERAL PROVISIONS
Section l. 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 by its charter.
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Section 2. Seal: The corporate seal of the Corporation shall consist of two
concentric circles between which is the name of the Corporation and in the
center of which is inscribed SEAL; and such seal, as impressed on the margin
hereof, is hereby adopted as the corporate seal of the Corporation.
Section 3. Waiver of Notice: Whenever any notice is required to be given to any
shareholder or director under the provisions of the North Carolina Business
Corporation Act or under the provisions of the Charter or By-laws of this
Corporation, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be equivalent to the giving of such notice.
Section 4. Amendments: Except as otherwise provided herein, these by-laws may
be amended or repealed and new by-laws may be adopted by the affirmative vote
of a majority of the directors then holding office at any regular or special
meeting of the Board of Directors.
The Board of Directors shall have no power to adopt a by-law: (1) Requiring
more than a majority of the voting shares for a quorum at a meeting of
shareholders or more than a majority of the votes cast to constitute action by
the shareholders, except where higher percentages are required by law; (2)
Providing for management of the Corporation otherwise than by the Board of
Directors or its Executive Committees; (3) Increasing or decreasing the number
of directors; (4) Classifying and staggering the election of directors.
No by-law adopted or amended by the shareholders shall be altered or repealed
by the Board of Directors.
7
