Exhibit 4.1
CERTIFICATE OF INCORPORATION OF TBC CORPORATION, RESTATED
AS OF AUGUST 6, 1987
(INCLUDING AMENDMENTS OF APRIL 29, 1988)
This Corporation was originally incorporated under the name THE
TIRE & BATTERY CORPORATION. The Corporation changed its name to TBC Corporation
upon filing a Restated Certificate of Incorporation with the Secretary of State
of the State of Delaware on March 31, 1983. The Corporation's original
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on August 24, 1970. This Certificate of Incorporation Restated as of
August 6, 1987, was duly adopted by the Corporation's directors at a Board of
Directors' Meeting held on August 6, 1987, in accordance with the provisions of
Section 245 of the General Corporation Law of the State of Delaware. This
Certificate of Incorporation Restated as of August 6, 1987, only restates and
integrates the existing certificate of incorporation and amendments thereto and
does not further amend the provisions of the existing certificate of
incorporation as theretofore amended or supplemented. There is no discrepancy
between the provisions of the existing certificate of incorporation and
amendments thereto and this Certificate of Incorporation, Restated as of August
6, 1987.
FIRST: The name of the Corporation is TBC CORPORATION.
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SECOND: The address of the Corporation's registered office in
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the State of Delaware is 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted
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or promoted is:
(a) To manufacture, purchase, or otherwise acquire,
and to hold, own, sell, or otherwise dispose of, or trade and
deal in, tires, batteries, and automotive equipment and
accessories of every kind and description.
(b) To engage in any other lawful act or activity for
which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock
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which the Corporation shall have authority to issue is 30,000,000,consisting
of:
2,500,000 shares of Preferred Stock, par value $.10
per share (hereinafter referred to as "Preferred Stock"); and
27,500,000 shares of Common Stock, par value $.10
per share (hereinafter referred to as "Common Stock").
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Section 1. Preferred Stock. (A) Shares of Preferred Stock may
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be issued from time to time as determined by the Board of Directors. Preferred
Stock may be issued in one or more series; provided, however, that each such
series shall be distinctly designated. All shares of any one series of Preferred
Stock shall be alike in every particular, except that there may be different
dates from which dividends thereon, if any, shall be cumulative, if made
cumulative. The voting powers, preferences, and relative, participating,
optional and other special rights of each such series, and the qualifications,
limitations, or restrictions thereof, if any, may differ from those of any other
series at any time outstanding; and the Board of Directors of the Corporation is
hereby expressly granted authority to fix the same by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of Preferred
Stock. Without limiting the generality of the foregoing, the Board of Directors
shall have the power to determine the following:
(i) The distinctive designation of each series and
the number of shares of Preferred Stock which shall constitute
such series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding)
from time to time by like action of the Board of Directors.
(ii) The rate and times at which, and the terms and
conditions upon which, dividends, if any, on Preferred Stock
of such series shall be paid; the extent of the preference or
relation, if any, of such dividends to the dividends payable
on any other class or classes or series of the same or other
class or classes of stock; and whether such dividends shall be
cumulative or noncumulative.
(iii) The right, if any, of the holders of Preferred
Stock of such series to convert the same into or exchange the
same for shares of any other class or classes or any series of
the same or any other class or classes of stock of the
Corporation and the terms and conditions of such conversion of
exchange.
(iv) Whether or not Preferred Stock of such series
shall be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions upon which, Preferred Stock of such series may be
redeemed.
(v) The rights, if any, of the holders of Preferred
Stock of such series upon the liquidation, merger,
consolidation, distribution or sale of assets, dissolution, or
winding-up, of the Corporation, however occurring.
(vi) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the Preferred
Stock of such series.
(vii) The voting powers, if any, of the holders of
such series of Preferred Stock, which powers may include,
without limiting the generality of the foregoing, the right,
voting as a series or together with other series of Preferred
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Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have
been a default in the payment of dividends on any one or more
series of Preferred Stock or under such other circumstances
and upon such conditions as the Board of Directors may
determine.
Provided, however, that nothing set forth herein shall be deemed to give the
Board of Directors the power to grant preemptive rights to the holders of any
Preferred Stock.
(B) The relative powers, preferences, and rights of each
series of Preferred Stock in relation to the powers, preferences, and rights of
any other series of Preferred Stock shall be, in each case, as fixed from time
to time by the Board of Directors in the resolution or resolutions adopted
pursuant to the authority granted in paragraph (A) of Section 1 of this Article
FOURTH. No consent, by class or series vote or otherwise, of the holders of any
series of Preferred Stock then outstanding shall be required for the issuance of
any other series of Preferred Stock, whether or not the powers, preferences, and
the rights of such other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences, and rights of such
outstanding series, or any of them; provided, however, that the Board of
Directors may provide in the resolution or resolutions adopted pursuant to
paragraph (A) of Section 1 of this Article FOURTH as to any series of Preferred
Stock that the consent of the holders of a majority (or such greater proportion
as shall be therein fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all other series of
Preferred Stock.
(C) The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) from time to time without a vote of the holders of any Preferred
Stock then outstanding if the resolution or resolutions of the Board of
Directors adopted pursuant to paragraph (A) of Section 1 of this Article FOURTH
as to such Preferred Stock do not expressly entitle such holders to vote
thereon.
Section 2. Common Stock. (A) After the requirements, if any,
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with respect to preferential dividends on Preferred Stock shall have been met
and after the Corporation shall have complied with all requirements, if any,
with respect to the setting aside of sums as sinking funds or redemption or
purchase accounts, and after the satisfaction of any other conditions which may
be fixed in accordance with the provisions of Section 1 of this Article FOURTH,
then and not otherwise, the holders of Common Stock shall be entitled to receive
such dividends as may be declared from time to time by the Board of Directors.
(B) After distribution in full of the preferential amount, if
any, to be distributed to the holders of Preferred Stock in the event of the
liquidation, distribution or sale of assets, dissolution, or winding-up, of the
Corporation, however occurring, the holders of Common Stock shall be entitled to
receive all remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders, ratably in proportion
to the number of shares of Common Stock held by them.
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(C) Except as may otherwise be required by law or by any
resolution or resolutions adopted by the Board of Directors pursuant to Section
1 of this Article FOURTH, each holder of Common Stock shall have one vote in
respect of each share of Common Stock held by him on all matters voted upon by
the holders of Common Stock.
FIFTH: Election of directors of the Corporation need not be by
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written ballot unless so required by a resolution of the Board of Directors.
SIXTH: Any action required or permitted to be taken by the
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stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders.
Notwithstanding any provision of the Amended By-Laws of the
Corporation to the contrary and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of
sixty-six and two-thirds percent or more of the voting power of all shares of
the Corporation then outstanding and entitled to vote thereon, voting together
as a single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, this Article SIXTH.
SEVENTH: Whenever a compromise or arrangement is proposed
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between this Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the, said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
EIGHTH: Section 1. Vote Required for Certain Business
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Combinations.
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(A) Higher Vote for Certain Business Combinations. In addition
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to any affirmative vote required by law or this Restated Certificate of
Incorporation:
(i) any merger or consolidation of the Corporation
or any Subsidiary (as hereinafter defined) with (a) any
Interested Stockholder (as hereinafter defined) or
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(b) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series
of transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value in excess of the greater of (a) five percent of the
total assets of the Corporation and its consolidated
subsidiaries as stated in the Corporation's consolidated
balance sheet as of the end of its then most recently
completed fiscal year, or (b) $1,000,000, or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate
fair market value in excess of the greater of (a) five percent
of stockholders, equity of the Corporation and its
consolidated subsidiaries as stated in the Corporation's
consolidated balance sheet for its then most recently
completed fiscal year, or (b) $1,000,000, or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of an Interested Stockholder or any Affiliate of any
Interested Stockholder, or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether or not with
or into or otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of sixty-six and two-thirds
percent or more of the voting power of the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
(the "Voting Stock"), voting together as a single class (it being understood
that for purposes of this Article EIGHTH, each share of the Voting Stock shall
have the number of votes granted to it pursuant to Article FOURTH of this
Restated Certificate of Incorporation). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law or in any agreement with any national
securities exchange or otherwise.
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(B) Definition of "Business Combination". The term "Business
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Combination" as used in this Article EIGHTH shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of paragraph (A) of
this Section 1.
Section 2. Certain Definitions. For the purposes of this
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Article EIGHTH:
(A) A "person" shall mean any individual, firm, corporation, or
other entity.
(B) "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary) which:
(i) is the beneficial owner, directly or indirectly,
of more than ten percent of the voting power of the
outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of more than ten percent of the voting power of
the then outstanding Voting Stock; or
(iii) is an assignee of, or has otherwise succeeded
to, any shares of Voting Stock which were at any time within
the two-year period immediately prior to the date in question
beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(C) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or
Associates ( as hereinafter defined) beneficially owns,
directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
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(D) For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph (B) of this Section 2, the number
of shares of Voting Stock deemed to be outstanding shall include shares of
deemed owned through application of paragraph (C) of this Section 2 but shall
not include any other shares of Voting Stock which may be issuable pursuant to
any agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(E) An "Affiliate" of a specified person means a person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person specified.
(F) An "Associate" of a specified person means (i) any
corporation or organization (other than the Corporation or a Subsidiary) of
which the person specified is a director, officer, or partner or is, directly or
indirectly, the beneficial owner of ten percent or more of any class of equity
securities, (ii) any trust or other estate in which the person specified has a
substantial beneficial interest or as to which the person specified serves as a
trustee or in a similar capacity, or (iii) any relative or spouse of the person
specified or any relative of such spouse, or (iv) any person who is a director,
officer, or partner of the person specified.
(G) "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in paragraph (B) of this Section 2, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the Corporation.
The Board of Directors (or a committee designated by the Board)
shall have the power to determine for the purposes of this Article EIGHTH, on
the basis of information known to it after reasonable inquiry, (i) whether a
person is an Interested Stockholder, (ii) the number of shares of Voting Stock
beneficially owned by any person, (iii) whether a person is an Affiliate or
Associate of another, and (iv) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate fair market value in excess of the amounts
referred to in clauses (ii) and (iii) of paragraph (A) of Section 1 of this
Article EIGHTH.
Section 3. No Effect on Fiduciary Obligations of Interested
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Stockholders. Nothing contained in this Article EIGHTH shall be construed to
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relieve any Interested Stockholder from any fiduciary obligation imposed by law.
Section 4. Amendment, Repeal. Notwithstanding any provision of
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the Amended By-Laws of the Corporation to the contrary and notwithstanding the
fact that a lesser percentage may be specified by law, the affirmative vote of
the holders of sixty-six and two-thirds percent or more of the voting power of
the shares of the then outstanding Voting Stock, voting together as a
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single class, shall be required to amend or repeal, or adopt any provision
inconsistent with, this Article EIGHTH.
NINTH: The Board of Directors of the Corporation shall have the
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power to amend or repeal the Amended By-Laws of the Corporation by a resolution
or resolutions adopted by sixty-six and two-thirds percent or more of the then
authorized number of directors. Notwithstanding any provision of the Amended
By-Laws of the Corporation to the contrary and notwithstanding the fact that a
lesser percentage may be specified by law, (i) the Amended By-Laws of the
Corporation may be amended or repealed by the stockholders of the Corporation
only by the affirmative vote of the holders of sixty-six and two-thirds percent
or more of the voting power of all shares of the Corporation then outstanding
and entitled to vote thereon, voting together as a single class; and (ii) the
affirmative vote of the holders of sixty-six and two-thirds percent or more of
the voting power of all shares of the Corporation then outstanding and entitled
to vote thereon, voting together as a single class, shall be required to amend
or repeal, or adopt any provision inconsistent with, this Article NINTH.
TENTH: To the fullest extent now or hereafter permitted by the
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Delaware General Corporation Law, a director of the Corporation shall not be
liable to the Corporation or its stockholders for monetary damages for a breach
of fiduciary duty as a director.
Notwithstanding the fact that a lesser percentage may be
specified by law, the affirmative vote of the holders of sixty-six and
two-thirds percent or more of the voting power of all shares of the Corporation
then outstanding and entitled to vote thereon, voting together as a single
class, shall be required to amend or repeal, or adopt any provision inconsistent
with, this Article TENTH.
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
TBC CORPORATION
MARVIN E. BRUCE, Chairman of the Board, and STANLEY A.
FREEDMAN, Secretary, of TBC CORPORATION, a Delaware corporation with its
registered office in Wilmington, New Castle County, Delaware (the
"Corporation"), DO HEREBY CERTIFY that, in accordance with the provisions of
Section 242 of the Delaware General Corporation Law:
(i) By unanimous written consent dated March 2, 1992, the
Board of Directors of the Corporation adopted a resolution setting
forth the amendment to Article FOURTH of the Corporation's Restated
Certificate of Incorporation attached hereto as Exhibit A, declaring it
advisable that such amendment be made, and directing the same to be
submitted to the stockholders of the Corporation for consideration and
action at their next annual Meeting.
(ii) At the Annual Meeting of Stockholders of the Corporation
duly held on April 12, 1992, at which meeting a quorum was present and
acting throughout, the amendment to Article FOURTH of the Restated
Certificate of Incorporation of the Corporation which is set forth on
Exhibit A attached hereto was duly adopted by the affirmative vote of
the holders of a majority of the outstanding shares of Common Stock of
the Corporation.
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IN WITNESS WHEREOF, the undersigned, acting for and on behalf
of the Corporation, have hereunto subscribed their names this 23rd day of April,
1992.
/s/ MARVIN E. BRUCE
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MARVIN E. BRUCE,
Chairman of the Board
ATTEST:
/s/ STANLEY A. FREEDMAN
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STANLEY A. FREEDMAN, Secretary
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EXHIBIT A
APRIL 23, 1992
AMENDMENT TO
RESTATED CERTIFICATE OF INCORPORATION
OF
TBC CORPORATION
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The Restated Certificate of Incorporation of TBC CORPORATION
is amended by changing the first paragraph of Article FOURTH to read as follows:
FOURTH: The total number of shares all classes of stock
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which the Corporation shall have authority to issue is
52,500,000, consisting of:
2,500,000 shares of Preferred Stock, par value
$.10 per share (hereinafter referred to as
"Preferred Stock"); and
50,000,000 shares of Common Stock, par value
$.10 (hereinafter referred to as "Common Stock").
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