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) February 24, 1995
BIG O TIRES, INC.
(Exact name of registrant as specified in its charter)
Nevada 1-8833 87-0392481
(State or other juris- (Commission (I.R.S. Employer
diction of incorporation) File No.) Identification No.)
11755 East Peakview Avenue, Englewood, Colorado 80111
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (303) 790-2800
24 Total Pages
Item 5. Other Events.
On April 13, 1995, the Company announced that it had requested further
negotiations with certain of the Company's franchisees and selected members of
the Company's management (the "Acquisition Group"). The Company had previously
announced on April 6, 1995, that it had received a proposal from the Acquisition
Group to acquire the Company for a cash price of $16.00 per share (the
"Acquisition Proposal"). A substantially similar group had proposed in
December 1994 to purchase the Company for $18.50 per share but withdrew the
offer in February, 1995. The Investment Committee of the Company concluded that
the Acquisition Proposal in its present form does not represent an appropriate
valuation of the Company. The Acquisition Proposal is subject to a number of
conditions, including the ability of the Acquisition Group to obtain the
necessary financing (commitments for which have not yet been obtained),
participation in the Acquisition Group of not less than 80% of the shares held
by the Company's Employee Stock Ownership Plan ("ESOP"), the ability of the ESOP
to obtain an acceptable fairness opinion, approval by and participation in the
Acquisition Group of not less than 85% of the Company franchisees and the
negotiation of a definitive merger agreement.
In consideration of the efforts to consummate the Acquisition Proposal, the
Acquisition Group is requesting the Company agree to advance or reimburse
certain expenses incurred by the Acquisition Group. On April 13, 1995, the
Investment Committee also declined to reimburse the Acquisition Group for
certain expenses incurred by the Acquisition Group in pursuing the proposal.
The Acquisition Proposal, unless accepted by the Company, would have expired by
its terms at 5:00 p.m. on April 13, 1995. To date, the Investment Committee of
the Company has not received a response to its request of the Acquisition Group
to proceed with further negotiations.
In order to coincide with the restructuring of the Company, on February 24,
1995, the Board of Directors adopted certain amendments to the Company's bylaws.
The amendments adjust the description of the duties of certain officers of the
Company to provide for the newly created officer position called the Office of
the Chief Executive. Members of the Office of the Chief Executive consist of
the Company's Chairman, Vice-Chairman and President. Also, on April 13,
1995, the Board of Directors adopted certain amendments to the Company's
bylaws.
The amendments specify an allowance for an additional class of directors known
as a Class IV director. A Class IV director will hold their position for a
period of one year after such election, or until their successors are duly
elected and qualified. A copy of the Company's amended and restated bylaws
incorporating both of these amendments is included as Exhibit 3.1 to this
Current Report on Form 8-K and is incorporated herein by this reference.
The foregoing does not purport to be complete and is qualified in its entirety
by reference to the amended and restated bylaws.
Item 7. Financial Statements and Exhibits.
(3.1) Second Amended and Restated Bylaws of Big O Tires, Inc. dated February
24, 1995 and April 13, 1995.
<PAGE>
SIGNATURES
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: April 14, 1995
BIG O TIRES, INC.
By: /s/ Philip J. Teigen
General Counsel and Secretary
EXHIBITS
1. (3.1) Second Amended and Restated Bylaws of Big O Tires, Inc. dated
February 24, 1995 and April 13, 1995.
Second Amended
and
Restated
BYLAWS OF
BIG O TIRES. INC.
ARTICLE I
OFFICES
Section 1.01. Location of Offices. The Corporation
may maintain such offices, within or without the State of Nevada,
as the Board of Directors may from time to time designate.
Section 1.02. Principal office and Resident Agent.
The address of the principal office of the Corporation, and the
resident agent located at such address, shall be The Corporation
Trust Company of Nevada, One First East Street, Reno, Nevada
89501, and said address may be changed by the Board of Directors
at any time pursuant to the laws of the State of Nevada.
ARTICLE II
STOCKHOLDERS
Section 2.01. Annual Meeting. The annual meeting
of the stockholders shall be held in each fiscal year of the
Corporation on such date and at such time as are established by a
resolution adopted by the Board of Directors. The annual meeting
shall be held for the purpose of electing directors and for the
transaction of such other business as may properly come before
the meeting.
Section 2.02. Special Meetings. Special meetings of
the stockholders may be called at any time by the Chairman of the
Board, the Vice Chairman of the Board, the President, or by a
majority of the Board of Directors, or in their absence or
disability, by the Executive Vice President.
Section 2.03. Place of Meetings. The Board of
Directors may designate any place, either within or without the
State of Nevada, as the place of meeting for any annual meeting
or for any special meeting called by the Board of Directors. A
waiver of notice signed by all stockholders entitled to vote at a
meeting may designate any place, either within or without the
State of Nevada, as the place for the holding of such meeting.
Section 2.04. Notice of Meetings. Notices of both
annual and special meetings shall be in writing and signed by the
Chairman of the Board, Vice Chairman of the Board, the President
or Executive Vice-President, or the Secretary, or an assistant
Secretary, or by such other person or persons as the directors
shall designate. Such notice shall state the purpose or purposes
for which the meeting is called and the time when, and the place
where, it is to be held. A copy of such notice shall be either
delivered personally to or shall be mailed, postage prepaid, to
each stockholder of record entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before such
meeting. If mailed, it shall be directed to a stockholder at
his address as it appears upon the records of the Corporation,
and upon such mailing of any such notice, the service thereof
shall be complete, and the time of the notice shall begin to run
from the date upon which such notice is deposited in the mail
for transmission to such stockholder. Personal delivery of
any such notice to any officer of a corporation or
association, or to any member of a partnership, shall constitute
delivery of such notice to such corporation, association or
partnership. In the event a stockholder transfers his stock
after delivery or mailing of the notice by the
Corporation and prior to the holding of the meeting, it shall not
be necessary to deliver or mail notice of the meeting upon the
transferee .
Section 2.05. Waiver of Notice. Any stockholder may
waive notice of any meeting of stockholders by signing a written
waiver of notice either before or after the meeting. Consent by
all the persons entitled to vote at a stockholder's meeting,
either by: (a) a writing on the records of the meeting or filed
with the Secretary; or (b) presence at such meeting and oral
consent entered on the minutes; or (c) taking part in the
deliberations at such meeting without objection, shall constitute
waiver of all defects of call or notice.
Section 2.06. Fixing Record Date. For the purpose of
determining stockholders entitled to notice of and to vote at any
meeting of stockholders or any adjournment thereof, or
stockholders entitled to receive payment of any dividend, or in
order to make a determination of stockholders for any other
proper purpose, the Board of Directors of the Corporation may
provide that the stock transfer books shall be closed but not for
a period exceeding sixty (60) days prior to such meeting or
payment.
In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any
such determination of stockholders, such date in any case to be
not more than sixty (60) days prior to the date on which the
particular action requiring such determination of stockholders is
to be taken.
If the stock transfer books are not closed and no record date
is fixed for the determination of stockholders entitled to notice
of or to vote at a meeting of stockholders, or stockholders
entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such
determination of stockholders. When a determination of
stockholders entitled to vote at any meeting of stockholders has
been made as provided in this section, such determination shall
apply to any adjournment thereof.
Section 2.07. Quorum. The holders of a majority of
the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the
Articles of Incorporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2.08. Voting. Every stockholder of record of
the Corporation shall be entitled at each meeting of stockholders
to one vote for each share of stock standing in his name on the
books of the Corporation. When a quorum is present or
represented at any meeting, the vote of the holders of a majority
of the stock having voting power present in person or represented
by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the
statutes or of the Articles of Incorporation a different vote is
required, in which case such express provision shall govern and
control the decision of such question. For example, directors
shall be elected by a plurality of the votes cast.
Section 2.09. Proxies. At any meeting of the
stockholders, any stockholder may be represented and vote by a
proxy or proxies appointed by an instrument in writing. In the
event that any such instrument in writing shall designate two or
more persons to act as proxies, a majority of such persons
present at the meeting, or, if only one shall be present then
that one, shall have and may exercise all of the powers conferred
by such written instrument upon all of the persons so designated
unless the instrument shall otherwise provide.
No such proxy shall be valid after the expiration of six
months from the date of its execution, unless coupled with an
interest, or unless the person executing it specifies therein the
length of time for which it is to continue in force, which in no
case shall exceed seven years from the date of its execution.
Subject to the above, any proxy duly executed is not revoked
and continues in full force and effect until an instrument
revoking it or a duly executed proxy bearing a later date is
filed with the Secretary of the Corporation.
Section 2.10. Stockholder Action. Any action required
or permitted to be taken by the stockholders of the Corporation
must be taken at a duly called annual or special meeting of the
stockholders of the Corporation and may not be taken by consent
in writing or otherwise.
Section 2.11. Conduct of Meetings.
(a) General. The chairman of the annual or any
special meeting of the stockholders shall be the Chairman of the
Board, if there is one, or, of there is not one or in his
absence, the Vice Chairman of the Board, if there is one, or, if
there is not one or in his absence, the President, or, if there
is not one or in his absence, any person designated by a majority
of the directors present, unless and until a different person is
elected by a majority of the shares entitled to vote at such
meeting.
(b) Inspectors of Election. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more persons as
alternative inspectors to replace any inspector who fails to act.
If no inspector or alternative is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of his duties, shall take and
sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his ability.
The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the
shares represented at a meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, and (iv) certify
their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the
inspectors.
The date and time of the opening and the closing of the
polls for each matter upon which the shareholders will vote at a
meeting shall be announced at the meeting. No ballot, proxies or
votes, nor any revocations thereof or changes thereto, shall be
accepted by the inspectors after the closing of the polls unless
a court of competent jurisdiction upon application by a
shareholder shall determine otherwise.
In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted with those proxies, any
information provided in accordance with applicable law, ballots
and the regular books and records of the corporation, except that
the inspectors may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by
or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is
authorized by the record owner to cast, or more votes than the
shareholder holds of record. If the inspectors consider other
reliable information for the limited purpose permitted herein,
the inspectors at the time they make their certification pursuant
to this section shall specify the precise information considered
by them including the person or persons from whom they obtained
the information, when the information was obtained, the means by
which the information was obtained and the basis for the
inspectors' belief that such information is accurate and
reliable.
(c) Rules of Conduct. Meetings of shareholders shall
be conducted in accordance with the following rules:
(i) The chairman of the meeting shall have absolute
authority over matters of procedure and there shall be no appeal
from the ruling of the chairman. If the chairman, in his
absolute discretion, deems it advisable to dispense with the
rules of parliamentary procedure as to any one meeting of
shareholders or part thereof, the chairman shall so sate and
shall clearly state the rules under which the meeting or
appropriate part thereof shall be conducted.
(ii) The chairman shall have the power and duty to
determine whether a nomination of a director candidate or any
other business proposed to be brought before the meeting was made
in accordance with the procedures set forth in these Bylaws and,
if any proposed nomination or business is not in compliance with
these Bylaws, to declare that such defective nomination or
proposal shall be disregarded.
(iii) If disorder should arise that prevents continuation
of the legitimate business of the meeting, the chairman may quit
the chair and announce the adjournment of the meeting and upon
his so doing the meeting is immediately adjourned.
(iv) The chairman may ask or require that anyone who is not
a bona fide shareholder or proxy leave the meeting.
Section 2.12. Presentation of Business at Stockholders
Meetings.
(a) Annual Meetings. At an annual meeting of the
stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought
before an annual meeting, business must be specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, otherwise properly brought
before the meeting by or at the direction of the Board of
Directors or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation,
not less than 30 days nor more than 60 days prior to the meeting;
provided, however, that in the event that less than 40 days'
notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business
on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure
was made. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before
the annual meeting, (i) a brief description of the business
desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name
and record address of the stockholder proposing such business,
(iii) the class and number of shares of the Corporation
beneficially owned by the stockholder, and (iv) any material
interest of the stockholder in such business. Notwithstanding
anything in the Bylaws to the contrary, no business shall be
conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.12, provided, however,
that nothing in this Section 2.12 shall be deemed to preclude
discussion by any stockholder of any business properly brought
before the annual meeting in accordance with such procedure.
(b) Special Meetings. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice
of meeting or as otherwise required by law.
Section 2.13. Nominations of Persons for Election
to the Board of Directors. In addition to any other applicable
requirements, only persons who are nominated in accordance with
the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of
stockholders by or at the direction of the Board of Directors, by
any nominating committee or person appointed by the Board of
Directors or by any stockholder of the Corporation entitled to
vote for the election of directors at the meeting who complies
with the notice procedures set forth in this Section 2.13. Such
nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received
at the principal executive offices of the Corporation not less
than 30 days nor more than 60 days prior to the meeting;
provided, however, that in the event that less than 40 days'
notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business
on the 10th day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was
made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or
re-election as a director, (i) the name, age, business address
and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and
number of shares of the Corporation beneficially owned by the
person, and (iv) any other information relating to the person
that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934 (including the proposed nominee's
written consent to be named in the proxy statement and to serve
if elected); and (b) as to the stockholder giving the notice, (i)
the name and record address of the stockholder, and (ii) the
class and number of shares of the Corporation which are
beneficially owned by the stockholder. The Corporation may
require any proposed nominee to furnish such other information as
may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a director of
the Corporation. No person shall be eligible for election as a
director of the Corporation unless nominated in accordance with
the procedures set forth herein. These provisions shall not
apply to nomination of any persons entitled to be separately
elected by holders of preferred stock.
Section 2.14. Advisory Stockholder Votes. In order
for the stockholders to adopt or approve any proposals submitted
to them for the purpose of requesting the Board of Directors to
take specified action, a majority of the outstanding stock of the
Corporation entitled to vote thereon must be voted in favor of
the proposal.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01. General Powers. The business of
the Corporation shall be managed by its Board of Directors which
may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute, by the Articles of
Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders. Without limiting the
generality of the foregoing, the directors of the Corporation are
hereby authorized to own, manage and engage in businesses similar
to that of the Corporation.
Section 3.02. Number, Class and Term. The number of
directors which shall constitute the Board of Directors of the
Company may vary from five to fifteen as prescribed by a
resolution adopted by the Board of Directors of the Company. The
Board of Directors shall be divided into four classes, Class I,
Class II, Class III and Class IV.
(a) Class I, II and III Directors. As to the Class I, II
and III directors, each class shall be as nearly equal in number
as possible and each class shall have such number of directors so
that at least one-fourth of the total number of directors is
elected at each annual meeting of shareholders. The term of
Class I Directors first chosen shall expire at the first annual
meeting of shareholders after their election, the term of Class
II Directors first chosen shall expire at the second annual
meeting of shareholders after their election, and the term of
Class III Directors first chosen shall expire at the third annual
meeting of shareholders after their election. At each annual
meeting of shareholders after such classification, the class of
directors whose term expires at the time of such meeting shall be
elected to hold office until the third succeeding annual meeting
of shareholders.
(b) Class IV Directors. The Class IV directors shall be
elected at each annual meeting of shareholders, to serve until
the next succeeding annual meeting of shareholders.
Each director shall hold office until his or her successor
shall be elected and shall qualify.
Section 3.03. Vacancies and Newly Created
Directorships. All vacancies, including those caused by an
increase in the number of directors, may be filled by a majority
of the remaining directors though less than a quorum. When one
or more directors shall give notice of his or their resignation
to the Board of Directors, effective at a future date, a majority
of the Board of Directors shall have power to fill such vacancy
or vacancies to take effect when such resignation or resignations
shall become effective, each director so appointed to hold office
during the remainder of the term of office of the resigning
director or directors.
Section 3.04. Removal. Any director may be removed
from office by the vote or written consent of stockholders
representing not less than two-thirds of the issued and
outstanding capital stock entitled to voting power.
Section 3.05. Regular Meetings. A regular meeting of
the Board of Directors shall be held without other notice than
these Bylaws immediately after, and at the same place as, the
annual meeting of shareholders. The Board of Directors may
provide by resolution the time and place for the holding of
additional regular meetings without other notice than such
resolution.
Section 3.06. Special Meetings. Special meetings of
the Board of Directors may be called by or at the request of the
Chairman of the Board, the Vice Chairman of the Board, the
President or any two directors.
Section 3.07. Meetings by Telephone Conference Call.
Members of the Board of Directors or of any committee designated
by the Board of Directors may participate in a meeting of such
board or committee by means of a conference telephone network or
a similar communications method by which all persons
participating in the meeting can hear each other. Participation
in a meeting in such a manner constitutes presence in person at
such meeting. Each person participating in the meeting shall
sign the minutes thereof. The minutes may be signed in
counterparts.
Section 3.08. Quorum and Majority of Acting. A
majority of the Board of Directors, at a meeting duly assembled,
shall be necessary to constitute a quorum for the transaction of
business and the act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the
Board of Directors, except as may be otherwise specifically
provided by the Articles of Incorporation. Any action required
or permitted to be taken at a meeting of the directors may be
taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by all of the directors entitled
to vote with respect to the subject matter thereof.
Section 3.09. Executive Committee. The Board of
Directors may by resolution of a majority of its members
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. The
designation of an Executive Committee and the delegation of
authority thereto shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed
upon him or it by law. The Executive committee shall act only
upon unanimous vote.
Section 3.10. Other Committees. The Board of
Directors may, by resolution passed by a majority of the Board of
Directors, designate one or more other committees, each committee
to consist of one or more of the directors of the Corporation,
which, to the extent provided in the resolution, shall have and
may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and
may have power to authorize the seal of the Corporation to be
affixed to all papers on which the Corporation desires to place a
seal. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by
the Board of Directors. The committees shall keep regular
minutes of their proceedings and report the same to the Board
when required.
Section 3.11. Compensation. The directors may be paid
their expenses, if any, of attendance at each meeting of the
Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee
meetings.
Section 3.12. Notice. Notice of any special meeting
shall be given at least two (2) days prior thereto by written
notice delivered personally, or mailed postage prepaid to the
directors at their business addresses, or by facsimile or
telegram. Notice by mail shall be deemed to be given when
deposited in the United States mail so addressed, with postage
thereon prepaid.
Section 3.13. Waiver of Notice, Ratification and
Approval. Any director may waive notice of any meeting in
writing, whether before or after the time stated therein.
Whenever all directors entitled to vote at any meeting consent,
either by a writing on the records of the meeting or filed with
the Secretary, or by presence at such meeting and oral consent
entered on the minutes, or by taking part in the deliberations at
such meeting without objection, the doings of such meeting shall
be as valid as if had at a meeting regularly called and noticed,
and at such meeting any business may be transacted which is not
excepted from the written consent or to the consideration of
which no objection for want of notice is made at the time.
If any meeting be irregular for want of notice or of such
consent, provided a quorum was present at such meeting, the pro-
ceedings of said meeting may be ratified and approved and
rendered likewise valid and the irregularity or defect therein
waived by a writing signed by all parties having the right to
vote at such meetings.
ARTICLE IV
OFFICERS
Section 4.01. Number. The officers of the Corporation
shall be the Chairman of the Board, the Vice Chairman of the
Board, the President, one or more Vice Presidents, Secretary,
Treasurer and such other officers as may be appointed by the
Board of Directors. Any person may hold two or more offices.
Section 4.02 Election Term of Office and
Qualifications. The officers shall be chosen by the Board of
Directors at its first meeting after each annual meeting of
stockholders. In the event of failure to choose officers at such
annual meeting of the Board of Directors, officers may be chosen
at any regular or special meeting of the Board of Directors. Each
such officer shall hold his office until the next ensuing annual
meeting of the Board of Directors and until his successors shall
have been chosen and qualified, or until his death or until his
resignation or removal in the manner provided in these Bylaws.
The Chairman of the Board and/or Vice Chairman of the Board, if
any, shall be and remain as director(s) of the Corporation during
the term of his or their office. No other officer need be a
director.
Section 4.03. Subordinate Officers. The Board of
Directors may appoint assistant secretaries, assistant
treasurers, and such other officers and agents as it shall deem
necessary, each of whom shall have such title, hold office for
such period, have such authority and perform such duties as shall
be determined from time to time by the Board of Directors. The
Board of Directors from time to time may delegate to any officer
or agent the power to appoint any such subordinate officers or
agents and to prescribe their respective titles, terms of office,
authorities and duties. Subordinate officers need not be
stockholders or directors.
Section 4.04. Salaries. The salaries or other
compensation of the officers and agents of the Corporation shall
be fixed by the Board of Directors except that the Board may
delegate to any person or group of persons the power to fix the
salaries or other compensation of any subordinate officers or
agents appointed in accordance with Section 4.03 hereof.
Section 4.05. Removal. Any officer elected or
appointed by the Board of Directors may be removed at any time
by the affirmative vote of a majority of the Board of Directors.
Any officer or agent appointed in accordance with the provisions
of Section 4.03 hereof may also be removed by any officer upon
whom such power of removal shall have been conferred by the
Board.
Section 4.06. Resignations. Any officer may resign at
any time by delivering a written resignation to the Board of
Directors, the President or the Secretary. Unless otherwise
specified therein, such resignation shall take effect upon
delivery.
Section 4.07. Vacancies and Newly Created Offices. If
any vacancy shall occur in any office by reason of death,
resignation, removal, disqualification or any other cause, or if
a new office shall be created, then such vacancies or
newly-created offices may be filled by the Board of Directors at
any regular or special meeting.
Section 4.08. The Chairman of the Board. The Chairman
of the Board, if there be such an officer, shall have the
following powers and duties:
(a) He shall preside at all stockholders meetings.
(b) He shall preside at all meetings of the Board of
Directors.
(c) He shall be a member of the Executive Committee,
if any.
(d) He shall be an executive officer of the
Corporation, and, subject to the directions of the
Board of Directors, shall have general charge of
the business, affairs and property of the
Corporation and general supervision over its
officers, employees and agents.
Section 4.09. The Vice Chairman of the Board. The
Vice Chairman of the Board, if there be such an officer, shall
have the following powers and duties if no Chairman of the Board
has been chosen or if such officer is absent or disabled:
(a) He shall preside at all shareholders meetings.
(b) He shall preside at all meetings of the Board of
Directors.
(c) He shall be a member of the Executive Committee, if
any.
(d) He shall be an executive officer of the Corporation,
and, subject to the directions of the Board of
Directors, shall have general charge of the business,
officers and property of the Corporation and general
supervision over its officers, employees and agents.
Section 4.10. The President. The President shall have
the following powers and duties:
(a) He shall be an executive officer of the Corporation,
and, subject to the directions of the Board of
Directors, shall have general charge of the business,
affairs and property of the Corporation and general
supervision over its officers, employees and agents.
(b) If no Chairman of the Board and/or Vice Chairman of the
Board has been chosen, or if such officer(s) is(are)
absent or disabled, he shall preside at meetings of the
stockholders and Board of Directors.
(c) He shall be a member of the Executive Committee, if
any.
(d) He shall be empowered to sign certificates representing
stock of the Corporation, the issuance of which shall
have been authorized by the Board of Directors .
(e) He shall have all powers and perform all duties
normally incident to the office of a president of a
corporation and shall exercise such other powers and
perform such other duties as from time to time may be
assigned to him by the Board of Directors.
Section 4.11. The Vice-Presidents. The Board of
Directors shall, from time to time, designate and elect one or
more Vice Presidents, one or more of whom may be designated to
serve as Executive Vice-President or Senior Vice-President. Each
Vice-President shall have such powers and perform such duties as
from time to time may be assigned to him by the Board of
Directors or the President. At the request or in the absence or
disability of the President, the Executive Vice-President or, in
the absence or disability of the Executive Vice-President, the
Vice-President designated by the Board of Directors or (in the
absence of such designation by the Board of Directors) by the
President, as Senior Vice-President, may perform all the duties
of the President, and when so acting, shall have all the powers
of, and be subject to all the restrictions upon, the President.
Section 4.12. The Secretary. The Secretary shall have
the following powers and duties:
(a) He shall keep or cause to be kept a record of all of
the proceedings of the meetings of the stockholders and
of the Board of Directors in books provided for that
purpose.
(b) He shall cause all notices to be duly given in
accordance with the provisions of these Bylaws and as
required by statute.
(c) He shall be the custodian of the records and of the
seal of the Corporation, and shall cause such seal (or
a facsimile thereof) to be affixed to all certificates
representing stock of the Corporation prior to the
issuance thereof and to all instruments, the execution
of which on behalf of the Corporation under its seal
shall have been duly authorized in accordance with
these Bylaws, and when so affixed he may attest the
same.
(d) He shall see that the books, reports, statements,
certificates and other documents and records required
by statute are properly kept and filed.
(e) He shall have charge of the stock books of the
Corporation and cause the stock and transfer books to
be kept in such manner as to show at any time the
amount of the stock of the Corporation of each class
issued and outstanding, the manner in which and the
time when such stock was paid for, the names
alphabetically arranged and the addresses of the
holders of record thereof, the number of shares held by
each holder and time when each became such holder of
record; and he shall exhibit at all reasonable times to
any director, upon application, the original or
duplicate stock register. He shall cause the stock book
referred to in Section 5.02 hereof to be kept and
exhibited at the principal business office of the
Corporation in the manner and for the purpose provided
in Section 5.02.
(f) He shall be empowered to sign certificates representing
stock of the Corporation, the issuance of which shall
have been authorized by the Board of Directors.
(g) He shall perform in general all duties incident to the
office of Secretary and such other duties as are given
to him by these Bylaws or as from time to time may be
assigned to him by the Board of Directors or the
President.
Section 4.13. The Treasurer. The Treasurer shall have
the following powers and duties:
(a) He shall have charge and supervision over and be
responsible for the monies, securities, receipts and
disbursements of the Corporation.
(b) He shall cause the monies and other valuable effects of
the Corporation to be deposited in the name and to the
credit of the Corporation in such banks or trust
companies or with such banks or other depositories as
shall be selected in accordance with Section 7.03
hereof.
(c) He shall cause the monies of the Corporation to be
disbursed by checks or drafts (signed as provided in
Section 7. 04 hereof) drawn upon the authorized
depositories of the corporation, and cause to be taken
and preserved proper vouchers for all monies disbursed.
(d) He shall render to the Board of Directors or the Office
of Chief Executive, whenever requested, a statement of
the financial condition of the Corporation and of all
of his transactions as Treasurer, and render a full
financial report at the annual meeting of the
stockholders, if called upon to do so.
(e) He shall cause to be kept correct books of account of
all the business and transactions of the Corporation
and exhibit such books to any directors upon request
during business hours.
(f) He shall be empowered from time to time to require from
all officers or agents of the Corporation reports or
statements giving such information as he may desire
with respect to any and all financial transactions of
the corporation.
(g) He shall perform in general all duties incident to the
office of Treasurer and such other duties as are given
to him by these Bylaws or as from time to time may be
assigned to him by the Board of Directors or the
President.
ARTICLE V
CAPITAL STOCK
Section 5.01. Stock Certificates. Every stockholder
shall be entitled to have a certificate, signed by the President
or a Vice-President, if one shall be appointed, and the Secretary
or an assistant Secretary, if one shall be appointed, certifying
the number of shares owned by him in the Corporation. When the
Corporation is authorized to issue shares of more than one class
or more than one series of any class, there shall be set forth
upon the face of back of the certificate, or the certificate
shall have a statement that the Corporation will furnish to any
stockholders upon request and without charge, a full or summary
statement of the designations, preferences and relative,
participating, optional or other special rights of the various
classes of stock or series thereof and the qualifications,
limitations or restrictions of such rights, and, if the
Corporation shall be authorized to issue only special stock, such
certificate shall set forth in full or summarize the rights of
the holders of such stock.
Whenever any certificate is countersigned or otherwise
authenticated by a transfer agent or transfer clerk, and by a
registrar, then a facsimile of the signatures of the officers or
agents of the Corporation may be printed or lithographed upon
such certificate in lieu of the actual signatures. In case any
officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or
officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who
signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not
ceased to be the officer or officers of the Corporation.
Section 5.02. Maintenance of Stock Book. A statement
shall be kept at the principal place of business of the
Corporation setting out the name of the custodian of the stock
ledger or duplicate stock ledger and the present and complete
post office address, including street and number, if any, where
such stock ledger or duplicate stock ledger is kept.
Section 5.03. Lost or Destroyed Certificates. The
Board of Directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost
or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall
require and/or give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have
been lost or destroyed.
Section 5.04. Transfer of Stock. Upon surrender to
the Corporation or transfer agent designated by resolution of the
Board of Directors of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 5.05. Registered Stockholders. The Corporation
shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
statute.
ARTICLE VI
INDEMNIFICATION
Section 6.01. Indemnification for Third Party Actions.
The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the
right of the Corporation, by reason of the fact that he is or was
a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses,
including attorney s fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with the action, suit or proceeding if he acted in good faith and
in a manner which he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or
not opposed to be in the best interests of the Corporation, and
that, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
Section 6.02. Indemnification for Actions by or in the
Right of the Corporation. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust,
or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred
by him in connection with the defense or settlement of the action
or suit if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests
of the Corporation. Indemnification may not be made for any
claim, issue or matter as to which such a person has been
adjudged by a court of competent jurisdiction, after exhaustion
of all appeals therefrom, to be liable to the Corporation or for
amounts paid in settlement to the Corporation, unless and only to
the extent that the court in which the action or suit was brought
or other court of competent jurisdiction determines that upon
application that in view of all circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
Section 6.03. Determination. To the extent that a
director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Sections 6.01 and 6.02 hereof,
or in defense of any claim, issue or matter therein, he must be
indemnified against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the defense.
Any indemnification under Sections 6.01 or 6.02 hereof, unless
ordered by a court or advanced pursuant to Section 6.04 hereof,
must be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances. The determination must be made either (1) by the
stockholders, or (2) by the Board of Directors by majority vote
of a quorum consisting of directors who were not parties to the
act, suit or proceeding, or (3) if a majority vote of a quorum
consisting of directors who were not parties to the act, suit or
proceeding so orders, by independent legal counsel in a written
opinion, or (4) if a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
Section 6.04. Advances. Expenses of officers and
directors incurred in defending a civil or criminal action, suit
or proceeding must be paid by the Corporation as they are
incurred and in advance of the final disposition of the action,
suit or proceeding upon receipt of an undertaking by or on behalf
of the director or officer to repay the amount if it is
ultimately determined by a court of competent jurisdiction that
he is not entitled to be indemnified by the Corporation. The
provisions of this Section 6.04 do not affect any rights to
advancement of expenses to which the Corporation's personnel
other than directors or officers may be entitled under any
contract or otherwise by law.
Section 6.05 General Indemnification. The
indemnification and advancement of expenses authorized in or
ordered by a court pursuant to Article VI: (1) does not exclude
any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under the certificate or
articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise for either
an action in his official capacity or an action in another
capacity while holding his office, except that indemnification,
unless ordered by a court pursuant to Section 6.02 or for the
advancement of expenses made pursuant to Section 6.04, may not be
made to or on behalf of any director or officer if a final
adjudication establishes that his acts or omissions involved
intentional misconduct, fraud or a knowing violation of the law
and was material to the cause of action and (2) continues for a
person who has ceased to be a director, officer, employee or
agent and inures to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 7.01. Contracts. The Board of Directors may
authorize any officer or officers, agent or agents to execute and
deliver any contract or other instrument in the name and on
behalf of the Corporation; any such authorization may be general
or confined to specific instances.
Section 7.02. Loans. No loans shall be contracted on
behalf of the Corporation, no evidence of indebtedness shall be
issued in its name, and no property of the Corporation shall be
mortgaged, pledged, transferred or conveyed as security for the
payment of any indebtedness or liability of the Corporation,
unless authorized by the Board of Directors. Such authority may
be general or confined to specific instances.
Section 7.03. Deposits. All funds of the Corporation
not otherwise employed shall be deposited from time to time to
its credit in such banks, trust companies or other depositories
as the directors may select.
Section 7.04. Checks Drafts, Etc. All checks, drafts
or other orders for the payment of money, and notes or other
evidences of indebtedness issued in the name of the Corporation,
shall be signed by such officer or officer, agent or agents of
the Corporation and in such manner as the Board of Directors may
from time to time designate.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends. Dividends upon the capital
stock of the Corporation, subject to the provisions, if any, of
any statute or of the Articles of Incorporation, may be declared
by the Board of Directors at any regular or special meeting
pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the
Articles of Incorporation.
Section 8.02. Fiscal Year. The fiscal year of the
Corporation shall end on the 31st day of December in each year.
Section 8.03. Corporate Seal. The Corporation shall
have the power to adopt and use a common seal, or stamp, and
alter the same at its pleasure.
Section 8.04. Amendments. These Bylaws may be
altered, amended or repealed and new Bylaws may be adopted by the
Board of Directors; provided however, that any alteration,
amendment or repeal of Article VI of these Bylaws shall only be
effective on the actual date such alteration, amendment or repeal
is actually adopted and shall only have prospective effect and
shall not apply to or effect persons, actions and matters
occurring or in place prior to such effective date.
I, THE UNDERSIGNED, being the Secretary of Big O Tires, Inc.
DO HEREBY CERTIFY the foregoing to be the Amended and Restated
Bylaws of said Corporation, as adopted at Regular Meetings of
the Board of Directors of said Corporation held on the 24th day of February,
1995 and the 13th day of April, 1995, to be effective on the specific dates
of each amendment.
____________________________________
Secretary
