SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant |X|
Filed by a Party other than the Registrant |_|
Check the appropriate box:
|_| Preliminary Proxy Statement |_| Confidential, for Use of the Commission
|X| Definitive Proxy Statement Only (as permitted by Rule 14a-6(e)(2))
|_| Definitive Additional Materials
|_| Soliciting Material Pursuant to ss. 240.14a-11(c) or
ss. 240.14a-12
BUCKHEAD AMERICA CORPORATION
----------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
N/A
----------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|X| No fee required
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction
applies: ___________
(2) Aggregate number of securities to which transaction applies:
___________
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0- 11 (set forth the
amount on which the filing fee is calculated and state how it
was determined): ___________
(4) Proposed maximum aggregate value of transaction:___________
(5) Total fee paid: ___________
|_| Fee paid previously with preliminary materials.
|_| Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE>
[LOGO]
4243 DUNWOODY CLUB DRIVE
SUITE 200
ATLANTA, GEORGIA 30350
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 28, 1998
TO THE STOCKHOLDERS OF
BUCKHEAD AMERICA CORPORATION:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of
BUCKHEAD AMERICA CORPORATION (the "Company") will be held at the Dunwoody
Country Club, 1600 Dunwoody Club Drive, Dunwoody, Georgia 30350 on May 28, 1998
at 12:00 p.m., (E.D.T.), for the following purposes:
1. To elect five directors to serve until the next annual meeting of
stockholders and until their successors are elected and have
qualified.
2. To consider a proposal to amend the Company's Certificate of
Incorporation to increase the number of authorized shares of the
Company's Common Stock from 3,000,000 shares to 5,000,000 shares.
3. To consider a proposal to approve the Company's 1998 Employee
Stock Option Plan.
4. To transact such other business as may properly come before the
meeting or any adjournments thereof.
The Proxy Statement dated May 5, 1998, is attached. Only record holders
of the Company's $.01 par value Common Stock at the close of business on April
24, 1998, will be eligible to vote at the meeting.
If you are not able to attend the meeting, please execute, complete, date
and return the proxy in the enclosed envelope. If you attend the meeting, you
may revoke the proxy and vote in person.
By Order of the Board of Directors:
[SIG CUT]
ROBERT B. LEE
Secretary
Date: May 5, 1998
A copy of the Annual Report to Stockholders of Buckhead America Corporation
for the year ended December 31, 1997 containing financial statements is
enclosed.
538094.3
<PAGE>
[LOGO]
4243 DUNWOODY CLUB DRIVE
SUITE 200
ATLANTA, GEORGIA 30350
PROXY STATEMENT
FOR ANNUAL MEETING OF STOCKHOLDERS
MAY 28, 1998
GENERAL INFORMATION
This Proxy Statement is furnished in connection with the solicitation
by the Board of Directors of Buckhead America Corporation, a Delaware
corporation ("Buckhead" or the "Company") of proxies for use at the 1998 Annual
Meeting of Stockholders to be held on May 28, 1998 at 12:00 p.m. (E.D.T.), at
the Dunwoody Country Club, 1600 Dunwoody Club Drive, Dunwoody, Georgia 30350.
This Proxy Statement and the accompanying form of proxy are being first
mailed to Stockholders on or about May 5, 1998. The Stockholder giving the proxy
may revoke it at any time before it is exercised at the meeting by: (i)
delivering to the Secretary of the Company a written instrument of revocation
bearing a date later than the date of the proxy; (ii) duly executing and
delivering to the Secretary a subsequent proxy relating to the same shares; or
(iii) attending the meeting and voting in person (attendance at the meeting will
not in and of itself constitute revocation of a proxy). Any proxy which is not
revoked will be voted at the Annual Meeting in accordance with the Stockholder's
instructions. If a Stockholder returns a properly signed and dated proxy card
but does not mark any choices on one or more items, his or her shares will be
voted in accordance with the recommendations of the Board of Directors as to
such items. The proxy card gives authority to the proxies to vote shares in
their discretion on any other matter properly presented at the Annual Meeting.
Proxies will be solicited from the Company's Stockholders by mail. The
Company will pay all expenses in connection with the solicitation, including
postage, printing and handling, and the expenses incurred by brokers,
custodians, nominees and fiduciaries in forwarding proxy material to beneficial
owners. The Company may employ a proxy solicitation firm to solicit proxies in
connection with the Annual Meeting and the Company estimates that the fee
payable for such services will be less than $10,000. It is possible that
directors, officers and regular employees of the Company may make further
solicitation personally or by telephone, telegraph or mail. Directors, officers
and regular employees of the Company will receive no additional compensation for
any such further solicitation.
Only holders (the "Stockholders") of record of the Company's $.01 par
value Common Stock at the close of business on April 24, 1998 (the "Record
Date"), are entitled to notice of, and to vote at, the Annual Meeting. On the
Record Date, the Company had outstanding a total of 1,897,780 shares of $.01 par
value Common Stock (excluding a total of 51,850 shares of treasury stock held by
the Company, which are not entitled to vote). Each such share will be entitled
to one vote (non-cumulative) on each matter to be considered at the Annual
Meeting. A majority of the outstanding shares of Common Stock, present in person
or represented by proxy at the Annual Meeting, will constitute a quorum for the
transaction of business at the Annual Meeting. Abstentions and broker non-votes
are counted for purposes of determining the presence or absence of a quorum for
the transaction of business.
Votes cast by proxy or in person at the Annual Meeting will be counted
by the persons appointed by the Company to act as election inspectors for the
meeting. Prior to the meeting, the inspectors will sign an oath to
538094.3
1
<PAGE>
perform their duties in an impartial manner and to the best of their abilities.
The inspectors will ascertain the number of shares outstanding and the voting
power of each of such shares, determine the shares represented at the meeting
and the validity of proxies and ballots, count all votes and ballots and perform
certain other duties as required by law.
Nominees for election as directors will be elected by a plurality of
the votes cast by the holders of shares entitled to vote in the election.
Accordingly, the five nominees receiving the highest vote totals will be elected
as directors of the Company at the Annual Meeting. The affirmative vote of
holders of a majority of all of the outstanding shares of Common Stock of the
Company entitled to vote at the Annual Meting is required for approval of the
proposal to amend the Company's Certificate of Incorporation. The affirmative
vote of holders of a majority of the outstanding shares of Common Stock of the
Company entitled to vote and present in person or by proxy at the Annual Meeting
is required for approval of the Company's 1998 Employee Stock Option Plan. It is
expected that shares beneficially held by officers and directors of the Company,
which in the aggregate represent approximately 20.5% of the outstanding shares
of Common Stock, will be voted in favor of each proposal. With respect to
election of directors, abstentions, votes "withheld" and broker non-votes will
be disregarded and have no effect on the outcome of the vote. With respect to
the proposal to approve the Company's 1998 Employee Stock Option Plan,
abstentions will have the effect of a vote against the proposal and broker
non-votes will be disregarded and will have no effect on the outcome of the
vote. With regard to the proposal to amend the Company's Certificate of
Incorporation, abstentions and broker non-votes will have the effect of a vote
against the proposal. There are no rights of appraisal or similar dissenter's
rights with respect to any matter to be acted upon pursuant to this Proxy
Statement.
RECOMMENDATION OF THE BOARD OF DIRECTORS
The Board of Directors of the Company recommends a vote FOR the
election of each of the nominees named below for election as director, FOR the
proposal to amend the Company's Certificate of Incorporation and FOR the
proposal to approve the Company's 1998 Employee Stock Option Plan.
ELECTION OF DIRECTORS
The proxy holders intend to vote FOR election of the nominees named
below as directors of the Company, unless otherwise specified in the proxy.
Directors of the Company elected at the Annual Meeting to be held on May 28,
1998 will hold office until the next Annual Meeting or until their successors
are elected and qualified.
Each of the nominees has consented to serve on the Board of Directors,
if elected. Should any nominee for the office of director become unable to
accept nomination or election, which is not anticipated, it is the intention of
the persons named in the proxy, unless otherwise specifically instructed in the
proxy, to vote for the election of such other person as the Board of Directors
may recommend.
The individuals listed below as nominees for the Board of Directors
were directors of the Company during 1997. The name and age of each nominee, his
principal occupation, and the period during which such person has served as a
director is also set forth below:
Service as
Name of Nominee Age Director Position
Robert M. Miller 46 Since 1992 Chairman of the
Board of Directors
Douglas C. Collins 45 Since 1995 President, Chief
Executive Officer,
Treasurer and Director
William K. Stern 71 Since 1992 Director
538094.3
2
<PAGE>
Robert B. Lee 43 Since 1997 Senior Vice President,
Chief Financial
Officer, Secretary and
Director
Steven A. Van Dyke 39 Since 1997 Director
Robert M. Miller. Mr. Miller, the Chairman of the Board of Directors of
the Company, was a partner in the law firm of Berlack, Israels & Liberman from
1984 to 1995. Mr. Miller's practice involved corporate restructuring and
reorganization, both in and out of bankruptcy. Mr. Miller has been involved in
numerous reorganizations, (including R.H. Macy & Co., Inc., Zale Corporation,
Integrated Resources, Inc., Insilco Corporation and First City Industries). In
1995, Mr. Miller became affiliated with the law firm of Rosenman & Colin. In
November 1996, Mr. Miller founded Cakewalk LLC, which owns various independent
music labels.
Douglas C. Collins. Mr. Collins became President and Chief Executive
Officer of the Company in December 1992. Prior to joining the Company, Mr.
Collins served as President of Days Inns from February 1992 through September
1992 and Director of Days Inns from September 1992 through November 1992. Mr.
Collins served as Senior Vice President and Chief Financial Officer of Days Inns
from August 1990 through February 1992, after serving as President of Imperial
Hotels Corporation, a hotel chain owner and operator, from April 1988 until May
1990. Mr. Collins joined Imperial Hotels Corporation in August, 1980, serving as
Vice President of Finance and Development from June 1984 to April 1988.
William K. Stern. Mr. Stern, a director of the Company, has over forty
years of experience in the hospitality industry. He had served as Vice President
of Loews Hotels since 1969 and as President of Loews Representation
International, Inc. ("LRI"), a separate division of Loews Hotels, since 1972. In
1987, Mr. Stern established "The Grande Collection of Hotels," a deluxe division
of LRI. Mr. Stern also served as the Chief Executive Officer of the Grande
Collection division. Mr. Stern has been the owner of Stern Services
International, a hotel consulting company, since 1992.
Robert B. Lee. Mr. Lee became Secretary of the Company in December
1992, became Vice President and Chief Financial Officer in July 1993, and became
a director in 1997. Mr. Lee was named Senior Vice President of Buckhead in May
1996. Prior to joining the Company, Mr. Lee served as the Corporate Controller
of Days Inns from October 1990 until December 1992. He functioned in numerous
capacities up to senior manager in the accounting and audit practice of KPMG
Peat Marwick LLP from December 1979 to October 1990.
Steven A. Van Dyke. Mr. Van Dyke, a director of the Company is the
President and Chief Executive Officer of Bay Harbour Management L.C. ("Bay
Harbour") and has served in that capacity for more than the last five years. Bay
Harbour is an investment advisor and manages multimillion dollar private equity
and debt funds.
538094.3
3
<PAGE>
INFORMATION ABOUT THE BOARD OF DIRECTORS
Meetings of the Board of Directors--During 1997 there were six meetings of the
Board of Directors. Each incumbent director attended at least 75% of all
meetings of the Board of Directors.
Director Compensation--The Company pays directors who are not full-time
employees of the Company an annual fee of $12,000 for service on the Board of
Directors and a fee of $750 for each Board meeting attended. The Company pays
Mr. Miller, the Chairman of the Board of Directors of the Company, an annual fee
of $87,000 and a fee of $750 for each Board meeting attended. Directors are
entitled to reimbursement of their traveling costs and other out-of-pocket
expenses incurred in attending Board and Committee meetings.
Stern Services International, a company owned by Mr. Stern, received $4,000 in
1997 for consulting services performed for the Company.
All non-employee directors serve on all standing committees (such as audit,
nominations, and compensation). Functions normally addressed by such committees
are conducted at regularly scheduled and special meetings of the entire Board of
Directors.
EXECUTIVE COMPENSATION
The following table sets forth the compensation paid by the Company to
the Chief Executive Officer, and the other executive officers whose salary and
bonus for 1997 exceeded $100,000 ("Named Executive Officers") for the years
ended December 31, 1997, 1996 and 1995.
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
- -----------------------------------------------------------------------------------------------------------
Long Term
Compensation
Awards
Securities
Underlying
Year Ended Annual Options/ All Other
Name and Principal Position December 31, Compensation SARs (#) Compensation($)
-----------------------
Salary ($) Bonus ($)
- ---------------------------- --------------- ----------- ----------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Douglas C. Collins 1997 $ 235,000 $ 94,005 16,000 $ 1,500(2)
Chief Executive 1996 235,000 72,000 7,000 4,750(2)
Officer 1995 210,000 82,500 30,000 4,620(2)
Robert B. Lee 1997 105,000 31,502 9,000 1,449(2)
Chief Financial 1996 98,600 22,292 4,000 3,022(2)
Officer 1995 88,800 17,760 10,000 2,664(2)
Gregory C. Plank(1)
President - 1997 135,000 40,502 6,000 --
Franchising 1996 81,000 24,111 15,000 35,312(3)
Ronald L. Devine
President - Lodge
Keeper 1997(4) 70,240 21,005 9,000 --
- --------------------
<FN>
(1) Mr. Plank's employment with the Company began on May 20, 1996.
(2) Employer's portion of 401(k) contribution.
(3) Relocation allowance.
(4) Mr. Devine's employment with the Company began on May 8, 1997.
</FN>
</TABLE>
538094.3
4
<PAGE>
Option Grants Table
The following table sets forth certain information regarding options
granted to the Named Executive Officers during the year ended December 31, 1997.
No stock appreciation rights have been granted.
OPTION GRANTS IN 1997
INDIVIDUAL GRANTS
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
----------------------------------------------------------------------------
Number of Securities % of Total Options
Underlying Options Granted to Employees Exercise Price Expiration
Name Granted(#) in Fiscal Year ($/share)(1) Date (2)
- --------------------- -------------------- -------------------- ---------------- -------------
<S> <C> <C> <C> <C> <C>
Douglas C. Collins 16,000 29.1% 6.88 06/26/07
Robert B. Lee 3,000 16.4% 6.88 06/26/07
Gregory C. Plank 6,000 10.9% 6.88 06/26/07
Ronald L. Devine 9,000 16.4% 6.88 06/26/07
<FN>
(1) The exercise price was fixed as the market price at the date of grant, June
26, 1997.
(2) The options vest and become exercisable in three equal, annual installments
of 33-1/3% each on (i) the grant date, (ii) the first anniversary of the
grant date, and (iii) the second anniversary of the grant date, and have a
term expiring ten years from the date of grant.
</FN>
</TABLE>
538094.3
5
<PAGE>
Option Exercises and Year-End Value Table
The following table sets forth the number and year-end value of
unexercised options granted to the Named Executive Officers as of December 31,
1997. No options were exercised by the Named Executive Officers during 1997.
1997 YEAR-END OPTION VALUES
<TABLE>
Number of Shares of
Common Stock Underlying Value of Unexercised In-the-
Unexercised Options at Money Options at Year-
Year-End (#) End ($)(1)
------------------------------- --------------------------------
<CAPTION>
Name Exercisable/Unexercisable Exercisable/Unexercisable
- --------------------- ------------------------------- --------------------------------
<S> <C> <C> <C> <C>
Douglas C. Collins 40,000/13,000 $ 120,000/6,685
Robert B. Lee 15,667/7,333 42,239/3,796
Gregory C. Plank 12,000/9,000 9,240/5,355
Ronald L. Devine 3,000/6,000 735/1,470
<FN>
(1) Calculated based on the $7.125 closing sale price on The Nasdaq Stock Market
of the underlying securities on December 31, 1997.
</FN>
</TABLE>
EMPLOYMENT AGREEMENTS
The Company entered into employment agreements with Mr. Collins and
Mr. Lee in June 1993, and amended each agreement in July 1995. The Company
entered into an employment agreement with Mr. Plank in April 1996 and with Mr.
Devine in May 1997. The terms of the employment agreements extend through July
1999 for Messrs. Collins and Lee, through April 1999 for Mr. Plank and through
May 2000 for Mr. Devine. The agreements provide that if the contract is
terminated by the Company (1) prior to the end of its term, (2) other than for
cause, and (3) within twelve months following a change-in-control (generally,
acquisition of control of over 50% of the Common Stock or a change in a majority
of the board of directors), each of Messrs. Collins, Lee and Plank shall be
entitled to the greater of (x) his annual base salary payable through the end of
his employment term and (y) one-half of his base salary for the rest of the year
in which such termination occurs. If such event occurred as of January 1, 1998,
Messrs. Collins, Lee, Plank and Devine would have been entitled to payments of
$375,000, $173,250, $200,000 and $249,375, respectively.
If Mr. Collins, Lee or Plank terminates his agreement (1) between 90
and 120 days following a change-in-control or (2) within 30 days following any
demotion, diminution of responsibility or pay or forced relocation occurring
within twelve months of a change-in-control, he shall be entitled to the lesser
of (x) his annual base salary through the end of his employment term, and (y)
one-half of his base salary for the year in which such termination occurs. If
such event occurred as of January 1, 1998, Messrs. Collins, Lee, Plank and
Devine would have been entitled to payments of $125,000, $57,750, $75,000 and
$52,500, respectively.
The agreements also provide that if the employment of Mr. Collins, Lee
or Plank is otherwise terminated without cause before the expiration of its
term, the Company must pay an amount equal to his annual base salary for the
year in which such termination occurs. If such event occurred as of January 1,
1998, Messrs. Collins, Lee, Plank and Devine would have been entitled to
payments of $250,000, $115,500, $150,000 and $105,000, respectively.
538094.3
6
<PAGE>
BENEFIT PLANS
1995 Employee Stock Option Plan
The Company's 1995 Employee Stock Option Plan (the "1995 Plan")
provides for the grant of options to acquire a maximum of 170,000 shares of
Common Stock. As of March 31, 1998, options for 35,333 shares had been exercised
under the 1995 Plan, options for 133,000 shares were outstanding, and 1,667
shares remained available for issuance under the 1995 Plan. Unless sooner
terminated by the Board, the 1995 Plan terminates on April 17, 2005.
1997 Employee Stock Option Plan
The Company's 1997 Employee Stock Option Plan (the "1997 Plan")
provides for the grant of options to acquire a maximum of 80,000 shares of
Common Stock. As of March 31, 1998, options for 0 shares had been exercised
under the 1997 Plan, options for 73,000 shares were outstanding, and 7,000
shares remained available for issuance under the 1997 Plan. Unless sooner
terminated by the Board, the 1997 Plan terminates on April 29, 2007.
1998 Employee Stock Option Plan
The Board of Directors has recommended that the stockholders approve
the Company's 1998 Employee Stock Option Plan. See "Proposal to Approve the
Buckhead America Corporation 1998 Employee Stock Option Plan" below.
CERTAIN TRANSACTIONS
On December 22, 1997, the Company issued $5,000,000 of Convertible
Debentures to investment funds managed by Bay Harbour Management L.C. ("Bay
Harbour"). Bay Harbour manages investment funds which already owned 262,000
(13.8%) of the outstanding common shares of the Company. Mr. Van Dyke, a
director of the Company is the Chief Executive Officer of Bay Harbour. The
related debenture notes bear interest at 8%, payable quarterly in arrears, and
are due December 22, 2002. The debentures are convertible into common shares of
the Company at any time at $9.00 per share. If all such debentures were
converted, an additional 555,555 shares of Common Stock would be issued.
In connection with the acquisition of The Lodge Keeper Group, Inc.
("Lodge Keeper") in May 1997, the Company assumed a lease for office space in
Prospect, Ohio. The lease requires annual rent payments of approximately $50,000
through 2001. Members of the immediate family of Mr. Devine, an executive
officer of the Company, own 50% of the lessor.
Also in connection with the Lodge Keeper acquisition, Mr. Devine
executed a $250,000 note payable to the Company, representing the purchase price
for certain inventory and equipment which did not relate to Lodge Keeper's
primary business. The note bears interest at 10% and is due in monthly
installments of $5,312 until June 2002.
538094.3
7
<PAGE>
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's executive officers and directors and persons who beneficially own more
than 10% of the Company's stock to file initial reports of ownership and reports
of changes in ownership with the Securities and Exchange Commission and the
National Association of Securities Dealers, Inc. Executive officers, directors
and greater than 10% beneficial owners are required by SEC regulations to
furnish the Company with copies of all Section 16(a) forms they file.
Based solely on its review of copies of forms received by it pursuant
to Section 16(a) of the Securities Exchange Act of 1934, as amended, or written
representations from certain reporting persons, the Company believes that during
1997 all Section 16(a) filing requirements applicable to its executive officers,
directors and greater than 10% beneficial owners were complied with.
538094.3
8
<PAGE>
PROPOSAL TO INCREASE THE NUMBER
OF AUTHORIZED SHARES OF THE COMPANY'S COMMON STOCK
FROM 3,000,000 SHARES TO 5,000,000 SHARES
THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS THAT STOCKHOLDERS VOTE
"FOR" THE PROPOSAL TO INCREASE THE NUMBER OF AUTHORIZED SHARES.
The Board of Directors of the Company has proposed an amendment to
Article 4 of the Certificate of Incorporation of the Company to increase the
authorized number of shares of Common Stock from three million (3,000,000), to
five million (5,000,000). The text of the proposed Certificate of Amendment to
Article 4 of the Certificate of Incorporation is attached hereto as Appendix A.
The Board of Directors believes that the additional authorized shares
of Common Stock may be needed for possible acquisitions, stock distributions or
stock splits, or other corporate purposes. The Board believes it advisable to
authorize additional shares to permit the issuance of shares of Common Stock
without the delay and the expense involved in obtaining stockholder approval at
the time such issuance is determined to be appropriate. The Company would seek
and obtain all necessary regulatory authority prior to the issuance of
additional shares of Common Stock.
The Board of Directors has no plans at the present time for the
issuance or use of the additional shares of Common Stock to be authorized by the
amendment. The issuance of additional shares of authorized Common Stock would be
within the discretion of the Board of Directors, without the requirement of
further action by stockholders unless such action is required by applicable law
or the rules of any stock exchange on which the Company's securities may then be
listed. All newly authorized shares would have the same rights as the presently
authorized shares, including the right to cast one vote per share and to
participate in dividends when and to the extent declared and paid.
The Board of Directors is unaware of any specific effort to obtain
control of the Company, and has no present intention of using the proposed
increase in the number of authorized shares of Common Stock as an anti-takeover
device. However, the Company's authorized but unissued capital stock could be
used to make an attempt to effect a change in control more difficult.
Under the Company's Certificate of Incorporation, no holders of any
class of stock of the Company are entitled to any preemptive rights with respect
to any shares of the Company's Common Stock.
None of the directors or officers of the Company has any interest,
direct or indirect, in the adoption of the proposed amendment except as a holder
of shares of the Common Stock.
The affirmative vote of the holders of a majority of the shares of
Common Stock entitled to vote, is required for the approval of this proposal.
Abstentions may be specified with regard to this Item and will be counted as
present for purposes of determining the existence of a quorum therefor. Because
adoption of this proposal requires the affirmative vote of a majority of the
outstanding shares of Common Stock, an abstention on this proposal will have the
same effect as a negative vote. Under applicable Delaware law, a broker non-vote
will have the same effect as a negative vote.
If the proposed Amendment is approved, all or any of the authorized
shares of Common Stock may be issued without further action by the stockholders
without first offering such shares to the stockholders for subscription. The
issuance of Common Stock otherwise than on a pro rata basis to all current
stockholders could have the effect of diluting the earnings per share, book
value per share and voting power of current stockholders. The proxyholders
intend to vote "FOR" approval of the amendment to the Certificate of
Incorporation, unless otherwise specifically instructed on the proxy card.
538094.3
9
<PAGE>
PROPOSAL TO APPROVE THE COMPANY'S
1998 EMPLOYEE STOCK OPTION PLAN
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THIS PROPOSAL.
On March 31, 1998, the Board adopted, subject to stockholder approval, the
1998 Employee Stock Option Plan (the "1998 Plan"). The 1998 Plan authorizes the
issuance of options covering up to 90,000 shares of Common Stock (subject to
adjustment in the event of stock dividends, stock splits, combination of shares,
recapitalizations, or other changes in the outstanding Common Stock). The 1998
Plan will be utilized to attract, retain and motivate key employees and advisors
of the Company and to align key employee and stockholder interests.
Options may be granted under the 1998 Plan to those employees, officers or
directors of, and consultants and advisors to, the Company, who, in the opinion
of the Board of Directors (the "Board"), are in a position to contribute
materially to the Company's continued growth and development and to its
long-term financial success. The Company estimates that, as of the date of this
Proxy Statement, approximately 15 employees (including officers), three
non-officer directors and no more than one consultant and advisor of the Company
will be eligible to participate in the 1998 Plan. The following discussion
contains a summary of the 1998 Plan.
Shares Reserved for the Plan
The Company's 1998 Plan provides for the grant of options to acquire a
maximum of 90,000 shares of Common Stock, subject to adjustment in the event of
stock dividends, stock splits, combination of shares, recapitalizations, or
other changes in the outstanding Common Stock. Any such adjustment will be made
by the Board in its discretion. Shares issued under the 1998 Plan may consist,
in whole or in part, of authorized and unissued shares, treasury shares or
shares purchased on the open market.
The 1998 Plan permits the grant of options intended to be incentive stock
options, within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code") ("ISO's"), and options which are not ISOs ("NSOs"). The
Board determines the terms and conditions of options granted under the 1998
Plan, including exercise prices and whether or not an option is a NSO or an ISO.
ISO's, however, may only be granted to persons who are employees.
Purpose of Plan
The Company desires to attract and retain persons of skill and experience
and to encourage their highest levels of performance on behalf of the Company
and its subsidiaries. The 1998 Plan accordingly affords eligible persons the
opportunity to acquire stock rights in the Company. As of March 31,1998, only a
limited number of additional shares were available for grant under the Company's
1995 Plan (1,667 shares) and the 1997 Plan (7,000 shares). The 1998 Plan is not
qualified under Section 401(a) of the Code and is not subject to the provisions
of the Employee Retirement Income Security Act of 1974.
Duration of Plan
Stock options may be granted pursuant to the 1998 Plan from time to time
prior to the earliest of (1) March 31, 2008; (2) the date on which all Shares
have been issued under the 1998 Plan; or (3) such date as the Board of Directors
shall determine in its sole discretion.
Administration of the Plan
The 1998 Plan is administered by the Board. Subject to the terms of the
1998 Plan, in administering the 1998 Plan and the stock options granted under
the 1998 Plan, the Board shall have the authority to (1) determine the
538094.3
10
<PAGE>
employees of the Company and its subsidiaries to whom ISOs may be granted and to
determine the directors, officers and employees of the Company and its
subsidiaries, and the consultants and advisors, to whom NSOs may be granted; (2)
determine the time or times at which options may be granted; (3) determine the
option price for shares subject to each option; (4) determine whether each
option granted shall be an ISO or a NSO; (5) determine the time or times when
each option shall become exercisable and the duration of the exercise period;
(6) determine whether restrictions are to be imposed on shares subject to
options and the nature of such restrictions; and (7) interpret the 1998 Plan and
prescribe and rescind rules and regulations, if any, relating to and consistent
with the 1998 Plan.
No members of the Board of Directors shall be liable for any action or
determination made in good faith with respect to the 1998 Plan or any option. No
member of the Board shall be liable for any act or omission of any other member
of the Board or for any act or omission on his or her own part, including but
not limited to the exercise of any power or discretion given under the 1998
Plan, except those resulting from such member's own gross negligence or willful
misconduct. In addition to such other rights of indemnification as he may have
as a member of the Board, each member of the Board shall be entitled to
indemnification by the Company with respect to administration of the 1998 Plan
and the granting of stock options under it.
Amendment of the Plan
The 1998 Plan may be terminated or amended by the Board of Directors at any
time, except that the following actions may not be taken without stockholder
approval: (a) materially increasing the number of shares that may be issued
under the 1998 Plan (except by certain adjustments under the 1998 Plan); (b)
materially modifying the requirements as to eligibility for participation in the
1998 Plan; and (c) materially increasing the benefits accruing to participants
under the 1998 Plan. Stock options may not be granted under the 1998 Plan after
the date of termination of the 1998 Plan, but options granted prior to that date
shall continue to be exercisable according to their terms.
Eligibility for Participation
Each person who is serving as an officer, director, or employee of the
Company or any of its subsidiaries is eligible to participate in the 1998 Plan.
Furthermore, certain consultants and advisors to the Company may also be
eligible to participate in the 1998 Plan.
Nothing contained in the 1998 Plan or in any stock option agreement may
confer upon any person any right to continue as director, officer or employee of
the Company or its subsidiaries or as a consultant or advisor, or limit in any
way any right of stockholders or of the Board, as applicable, to remove such
person.
New Plan Benefits
It is not possible to determine how many eligible employees will
actually participate in the 1998 Plan in the future, and the Board has currently
made no decisions with respect to stock option grants thereunder. Therefore, it
is not possible to determine the dollar value or number of shares of Common
Stock that will be distributed under the 1998 Plan in the future or the
identities of the recipients of those grants.
Grant of Stock Options
The Board may grant stock options to eligible persons in such amounts and
on such terms not inconsistent with the 1998 Plan as it may deem appropriate up
to the number of shares remaining subject to the 1998 Plan. The date upon which
a stock option is approved by the Board shall be the "Grant Date."
538094.3
11
<PAGE>
The Company and each eligible person shall execute an agreement providing
for the grant of stock options in accordance with the pertinent provisions of
the 1998 Plan. No consideration shall be paid in connection with any such grant
unless the sale of shares is made simultaneously with the grant.
Option Exercise Price
The exercise price per share for the shares subject to NSOs shall be at
whatever price is approved by the Board, but not less than 90% of the fair
market value per share of the Common Stock on the Grant Date. The exercise price
per share for the shares subject to ISOs shall be not less than the fair market
value per share of Common Stock on the Grant Date, except that in the case of an
ISO to be granted to an employee owning more than 10% of the total combined
voting power of all classes of stock of the Company, the exercise price per
share shall be not less than 110% of the fair market value per share of Common
Stock on the Grant Date. The "fair market value" shall be the highest closing
price on the Nasdaq National Market on the last business day for which the price
or quotes are available prior to the Grant Date.
Vesting of Options
Unless otherwise provided by the Board, options granted under the 1998 Plan
will generally vest at the rate of 33 1/3% per annum over a two-year period,
with 33 1/3% vesting on the grant date, 33 1/3% on the first anniversary thereof
and the remaining 33 1/3% on the second anniversary thereof, so that all options
are vested after two years.
Adjustments to Exercise Price and Number of Shares
Except as set forth above, in the event of any merger, reorganization,
consolidation, recapitalization, stock dividend, stock split or other changes in
corporate structure affecting the Common Stock, such substitution or adjustment
shall be made in the aggregate number of shares reserved for issuance under the
Plan and in the number and option price of shares subject to outstanding options
granted under the Plan as may be determined to be appropriate by the Board, in
its sole discretion, provided that the number of shares subject to any award
shall always be a whole number.
In general, if the Company is merged into or consolidated with another
corporation under circumstances in which the Company is not the surviving
corporation, or if the Company is liquidated or sells or otherwise disposes of
substantially all of its assets to another corporation (any such merger,
consolidation, etc., being hereinafter referred to as a "Non-Acquiring
Transaction") while unexercised options are outstanding under the Plan, after
the effective date of a Non-Acquiring Transaction each holder of an outstanding
option shall be entitled, upon exercise of such option, to receive such stock or
other securities as the holders of the same class of stock as those shares
subject to the option shall be entitled to receive in such Non-Acquiring
Transaction based upon the agreed upon conversion ratio or per share
distribution. However, in the discretion of the Board of Directors, any
limitations on exercisability of options may be waived so that all options, from
and after a date prior to the effective date of such Non-Acquiring Transaction
shall be exercisable in full. Furthermore, in the discretion of the Board, the
right to exercise may be given to each holder of an option during a 30-day
period preceding the effective date of such Non-Acquiring Transaction. Any
outstanding options not exercised within such 30-day period may be canceled by
the Board as of the effective date of any such Non-Acquiring Transaction. To the
extent that the foregoing adjustments relate to stock or securities of the
Company, such adjustments shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive.
Except as specifically described above, optionees shall have no rights by
reason of any subdivision or consolidation of shares of stock of any class or
the payment of any stock dividend or any other increase or decrease in the
number of shares of stock of any class or by reason of any dissolution,
liquidation, merger, or consolidation or spinoff of stock of another
corporation, and no issue by the Company of shares of stock of any class shall
affect,
538094.3
12
<PAGE>
and no adjustment by reason thereof shall be made with respect to, the number or
price of shares subject to the option. The grant of any option pursuant to the
Plan shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve, liquidate or
sell, or to transfer all or any part of its business or assets.
Duration and Termination of Options
Each option expires on the date specified by the Board, but not more than
(i) ten years from the Grant Date in the case of NSOs, (ii) ten years from the
Grant Date in the case of ISOs generally, and (iii) five years from the Grant
Date in the case of ISOs granted to an employee owning more than 10% of the
total combined voting power of all classes of stock of the Company. If approved
by the Board, after request by the grantee, an ISO may be converted into an NSO
and the term of such option may be extended.
In general, if an optionee's employment terminates by reason of death, the
stock option held by such optionee may thereafter be exercised to the extent
such option was exercisable at the time of death or on such accelerated basis as
the Board may determine at or after grant, by the legal representative of the
estate or the legatee of the optionee under the will of the optionee, for a
period of one (1) year from date of such optionee's death or until the
expiration of the stock option, whichever period is shorter. In the event of the
termination of optionee's employment by reason of his disability, the stock
option may generally be exercised, to the extent it was exercisable at the time
of his termination or on such accelerated basis as the Board shall determine at
or after grant, for a period of three (3) years from the date of such
termination until the expiration of the stated term of the stock option,
whichever period is shorter. In any event, if the stock option is designated as
an ISO, and is exercised more than one (1) year after termination of employment
due to disability, the stock option shall be treated as a NSO. In the event an
employee's employment is terminated due to normal or early retirement, the
option may generally be exercised by the optionee, to the extent it was
exercisable at the time of such normal or early retirement or on such
accelerated basis as the Board shall determine at or after grant, for a period
of three (3) years from the date of such termination or the expiration of the
stated term of the stock option, whichever period is shorter. In such event, if
the stock option was designated as an ISO and is exercised more than three (3)
months after such termination of employment due to normal or early retirement,
the stock option shall be treated as a NSO. In the event that employment is
terminated due to voluntary resignation of employment by the optionee, the stock
option shall thereupon terminate. In the event of involuntary termination of the
optionee's employment by the Company or any Subsidiary without "cause", the
stock option may be exercised, to the extent otherwise then exercisable, for the
lesser of three (3) months or the balance of such stock option's term. In the
event the optionee's employment with the Company is terminated for any other
reason, including termination of the optionee's employment for "cause," the
stock option shall thereupon terminate. For purposes of the 1998 Plan, "cause"
means a felony conviction of a participant or the failure of a participant to
contest prosecution for a felony or participant's willful misconduct or
dishonesty, or other unauthorized activity, any of which, in the good faith
opinion of the Board, is directly and materially harmful to the business or
reputation of the Company or any Subsidiary.
All options must be exercised prior to expiration and any options not
vested at the time of expiration may not be exercised.
Means of Exercise of Options
Options are exercised by giving written notice to the Company at its
principal office address, accompanied by full payment of the purchase price
therefor either (a) in United States dollars in cash or by check, or (b) if
permitted at or after grant, the delivery of shares of Common Stock having a
fair market value equal as of the date of the exercise to the cash exercise
price of the option, or a combination of (a) or (b).
538094.3
13
<PAGE>
Non-transferability of Options
No option is transferable except by will or by the laws of descent and
distribution, and all options are exercisable, during the lifetime of the
optionee, only by the optionee or the optionee's guardian or legal
representative. Shares subject to options granted under the 1998 Plan that have
lapsed or terminated may again be subject to options granted under such 1998
Plan.
Tax Treatment
The following discussion addresses certain anticipated federal income tax
consequences to recipients of options granted under the 1998 Plan. It is based
on the Code and interpretations thereof as in effect on the date of this Proxy
Statement. This summary is not intended to be exhaustive and, among other
things, does not describe state, local or foreign tax consequences.
Generally, an optionee to whom a NSO is granted will not recognize income
as a result of the grant of the option. However, upon exercise of the NSO, the
optionee will generally recognize ordinary compensation income equal to the
excess, if any, of the fair market value of the stock received pursuant to
exercise of the option (the "Shares") over the exercise price. Such taxation
upon the exercise of the option will be deferred (i) if the shares are subject
to restrictions imposed by the Board which could result in a substantial risk of
their forfeiture or (ii) if the optionee is subject to the "short-swing profit"
forfeiture provisions of Section 16(b) of the Securities Exchange Act ("Section
16(b) Liability"), unless in either event, the optionee makes an election
pursuant to Section 83(b) of the Code (an "83(b) Election"), within 30 days of
receipt of the Shares, to be taxed on the date of receipt of the Shares. If no
83(b) Election is made, the optionee will recognize ordinary compensation income
at the time the shares are no longer subject to such restrictions or the
optionee is no longer subject to Section 16(b) Liability as a result of the
transfer of the Shares, in an amount equal to the excess of the value of the
Shares at such time over the amount paid for them. Provided it complies with any
applicable income tax reporting requirements, the Company normally will be
entitled to a deduction for federal income tax purposes at the time that the
optionee recognizes compensation income due to the exercise of the option. The
amount of the deduction is equal to the amount of compensation income recognized
by the optionee due to the exercise of the option.
An optionee to whom an ISO which qualifies under Section 422 of the Code is
granted generally will not recognize income at the time of grant of the ISO or
at the time of its exercise. However, the excess of the fair market value of the
Shares of stock subject to the option (the "Incentive Shares") over the exercise
price of the option at the time of its exercise is an adjustment to taxable
income in determining an optionee's alternative minimum taxable income and
ultimately his alternative minimum tax alternative minimum taxable income and
ultimately his alternative minimum tax (AMT). As a result, this adjustment could
cause the optionee to be subject to AMT or increase his existing AMT liability.
If an optionee who has exercised an ISO does not sell the Incentive Shares
until more than one year after exercise and more than two years after the date
of the grant, such optionee will normally recognize long-term capital gain or
loss equal to the difference, if any, between the selling price of the Incentive
Shares and the exercise price (longer holding periods may be required to achieve
the lowest possible capital gains tax rate). If the optionee sells the Incentive
Shares before the time periods expire (a "disqualifying disposition") he or she
will recognize ordinary compensation income equal to the lesser of (i) the
difference, if any, between the fair market value of the Incentive Shares on the
date of exercise and the exercise price of the option, and (ii) the difference,
if any between the selling price for the Incentive Shares and the exercise price
of the option. Any other gain or loss on such sale will normally be capital gain
or loss. Unless there is a disqualifying disposition of the Incentive Shares,
the Company does not receive a deduction for federal income tax purposes with
respect to the Incentive Shares. Upon disqualifying disposition and provided the
Company complies with any applicable reporting requirements, the Company
normally will be entitled to a deduction for federal income tax purposes at the
time that the optionee
538094.3
14
<PAGE>
recognizes compensation income due to the exercise of the option. The amount of
the deduction is equal to the amount of compensation income recognized by the
optionee due to the exercise of the option.
538094.3
15
<PAGE>
OWNERSHIP OF PRINCIPAL STOCKHOLDERS, DIRECTORS
AND CERTAIN EXECUTIVE OFFICERS
The following table sets forth certain information regarding the beneficial
ownership of the Company's Common Stock as of March 31, 1998 by: (i) each person
(or group of affiliated persons) known by the Company to be the beneficial owner
of more than 5% of the outstanding Common Stock; (ii) the Named Executive
Officers who beneficially own shares of the Company's Common Stock; (iii) each
director and nominee for director of the Company; and (iv) all of the Company's
executive officers and directors as a group. Except as otherwise indicated in
the footnotes to this table, the Company believes that the persons named in this
table have sole voting and investment power with respect to all the shares of
Common Stock indicated.
<TABLE>
<CAPTION>
Beneficial Ownership
Beneficial Owner As of March 31, 1998
Shares Percentage+
<S> <C> <C>
Bay Harbour Management L.C.(1) 820,086 33.4
Hotel-Motel Management Corporation(2) 149,000 7.9
Heartland Advisors, Inc.(3) 251,200 13.2
Leon M. & Marsha C. Wagner(4) 116,025 6.1
NY Motel Enterprises(5) 112,821 5.9
Robert M. Miller(6) 49,922 2.6
Douglas C. Collins(7) 61,441 3.2
Ronald L. Devine (8) 68,452 3.6
Robert B. Lee(9) 30,808 1.6
Gregory C. Plank(10) 14,000 *
William K. Stern(11) 37,333 1.9
Steven A. Van Dyke(1) 822,419 33.5
All officers, directors and nominees for directors as a
group (7 persons)(12) 1,077,867 41.7
<FN>
+ Where a stockholder owns options or other rights to acquire Common Stock,
and such rights are exercisable within sixty days after March 31, 1998,
such rights are deemed to be exercised for purposes of computing that
stockholder's percentage ownership.
* Represents beneficial ownership of less than 1%.
(1) The shares beneficially owned include 264,531 shares held of record by
Trophy Hunter Investments,Ltd. ("Trophy"). Through contracts and
arrangements, voting and disposition power over these shares is held by
Bay Harbour Management L.C. ("Bay Harbour"), a registered investment
advisor under the Investment Advisors Act of 1940. Also includes an
aggregate of 555,555 shares which may be acquired upon conversion of a
convertible debenture held by investment funds managed by Bay Harbour.
Mr. Steven A. Van Dyke is the majority stockholder, President and Chief
Executive Officer of Bay Harbour, and beneficially owns the sole general
partner of Trophy, and may therefore be deemed to be the beneficial owner
of the shares held by Bay Harbour. Of the 264,531 shares held by Bay
Harbour, Mr. Van Dyke directly owns 2,531 shares. The address of Bay
Harbour Management L.C., is Suite 270, 777 South Harbour Island
Boulevard, Tampa, FL 33602.
(2) The address of Hotel-Motel Management Corporation is 3485 N. Desert
Drive, Suite 106, Building 2, East Point, GA 30344.
538094.3
16
<PAGE>
(3) Includes shares of common stock held in investment advisory accounts of
Heartland Advisors, Inc. As a result, various persons have the right to
receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, the securities. The interests of one such
account, Heartland Value Fund, a series of Heartland Group, Inc., a
registered investment company, relates to more than 5% of the class. The
address of Heartland Advisors, Inc. is 790 North Milwaukee Street,
Milwaukee, WI 53202.
(4) Mr. Wagner holds 36,632 shares directly and Ms. Wagner, his spouse, holds
12,082 shares directly. They share investment and voting power with
respect to 67,311 shares. The address of the Wagners is 1325 Avenue of
the Americas, 22nd Floor, New York, NY 10019.
(5) The address of NY Motel Enterprises is 440 West 57th Street, New York, NY
10019.
(6) Includes options to purchase 28,667 shares which are either currently
exercisable or which become exercisable within 60 days of the date of
this Proxy Statement.
(7) Includes 6,508 shares beneficially held by DC Hospitality, Inc., which is
85% owned by Mr. Collins and 15% owned by Mr. Lee and 42,333 shares
subject to options which are currently exercisable or which become
exercisable within 60 days of the date of this Proxy Statement.
(8) Includes options to purchase 3,000 shares which are exercisable within 60
days of the date of this Proxy Statement.
(9) Includes 6,508 shares beneficially held by DC Hospitality, Inc., which is
15% owned by Mr. Lee and 85% owned by Mr. Collins and 17,000 shares
subject to options which are either currently exercisable or which become
exercisable within 60 days of the date of this Proxy Statement.
(10) Includes options to purchase 12,000 shares which are either currently
exercisable or which become exercisable within 60 days of the date of
this Proxy Statement.
(11) Includes options to purchase 27,333 shares which are either currently
exercisable or which become exercisable within 60 days of the date of
this Proxy Statement.
(12) Includes options to purchase 132,666 shares which are currently
exercisable or which become exercisable within 60 days of the date of
this Proxy Statement. Does not include 43,334 shares subject to
outstanding options which options are not currently exercisable and will
not become exercisable within 60 days of the date of this Proxy
Statement. Also includes shares beneficially owned by Bay Harbor (See
Note (1)) and DC Hospitality, Inc. (See Note (7)).
</FN>
</TABLE>
INDEPENDENT PUBLIC ACCOUNTANTS
The accounting firm of KPMG Peat Marwick LLP has been the independent
certified public accountants of the Company since March 1993. Approval or
selection of the independent certified public accountants of the Company is not
submitted for a vote at the Annual Meeting of Stockholders. The Board of
Directors of the Company has historically selected the independent certified
public accountants of the Company, and the Board believes that it would be to
the detriment of the Company and its Stockholders for there to be any impediment
(such as selection or ratification by the Stockholders) to its exercising its
judgment to remove the Company's independent certified public accountants if, in
its opinion, such removal is in the best interest of the Company and its
Stockholders.
It is anticipated that a representative from the accounting firm of KPMG
Peat Marwick LLP will be present at the Annual Meeting of Stockholders to answer
appropriate questions and make a statement if the representative desires to do
so.
STOCKHOLDER PROPOSALS
Appropriate proposals of stockholders intended to be presented at the
Company's 1998 Annual Meeting of Stockholders must be received by the Company by
January 5, 1999 for inclusion in its Proxy Statement and form of proxy relating
to that meeting. If the date of the next Annual Meeting is advanced or delayed
by more than 30 calendar days from the date of the annual meeting to which this
Proxy Statement relates, the Company shall, in a
538094.3
17
<PAGE>
timely manner, inform its stockholders of the change, and the date by which
proposals of stockholders must be received.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company may be inspected and copied at the
public reference facilities maintained by the Commission, 450 Fifth Street,
N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549; and at regional
offices of the Commission at the Citicorp Center, 500 West Madison, Suite 1400,
Chicago, Illinois 60661 and at 7 World Trade Center, New York, New York 10048.
Copies of such material may be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such material may also be inspected and copied at the offices
of the Nasdaq Stock Market, 1735 K Street, Washington, D.C. 20006-1500, on which
the Company's Common Stock is listed. In addition, the Commission maintains a
site on the World Wide Web portion of the Internet that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the Commission. The address of such site is
http://www.sec.gov.
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY, STOCKHOLDERS WHO DO NOT
EXPECT TO ATTEND THE MEETING IN PERSON ARE URGED TO SIGN, COMPLETE, DATE AND
RETURN THE PROXY CARD IN THE ENCLOSED ENVELOPE, TO WHICH NO POSTAGE NEED BE
AFFIXED.
By Order of the Board of Directors
[Sig Cut]
ROBERT B. LEE
Secretary
Dated: May 5, 1998
538094.3
18
<PAGE>
APPENDIX "A"
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BUCKHEAD AMERICA CORPORATION
Adopted in accordance with the provisions of
Section 242 of the
General Corporation Law of the State of Delaware
BUCKHEAD AMERICA CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), does hereby certify
as follows:
FIRST: The Corporation has received payment for its capital stock.
SECOND: In accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware, the Board of Directors of the
Corporation has duly adopted a resolution setting forth and declaring advisable
the amendment to Article FOURTH of the Certificate of Incorporation of the
Corporation set forth below.
THIRD: The stockholders owning a majority of the outstanding common
stock, par value $.01 per share, of the Corporation entitled to vote thereon in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware duly authorized, adopted and approved a resolution
amending Article FOURTH of the Certificate of Incorporation of the Corporation
as set forth below.
FOURTH: Article FOURTH of the Certificate of Incorporation of Buckhead
America Corporation, a Delaware corporation, is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"FOURTH: The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
5,200,000 shares, of which 5,000,000 shares shall be
designated as "Common Stock" $.01 par value per share and
200,000 shares shall be designated as "Preferred Stock" with a
par value of $100 per share.
A statement of the powers, preferences and rights,
and the qualifications, limitations or restrictions thereof,
in respect of each class of stock of the Corporation is as
follows:
A. COMMON STOCK
Except as otherwise required by law or as provided by
the Board of Directors with respect to any class or series of
Preferred Stock, the entire voting power and all voting rights
shall be vested exclusively in the Common Stock. Each holder
of shares of Common Stock shall be entitled to one vote for
each share outstanding in his or her name on the books of the
Corporation.
Subject to the preferred rights of the stockholders
of shares of any series of Preferred Stock as provided by the
Board of Directors with respect to any such series of
Preferred Stock, the holders of the Common Stock shall be
entitled to receive, as and
<PAGE>
when declared by the Board of Directors out of the funds of
the Corporation legally available therefor, such dividends
(payable in cash, stock or otherwise) as the Board of
Directors may from time to time determine, payable to
stockholders of record on such dates, not exceeding 60 days
preceding the dividend payment dates, as shall be fixed for
such purpose by the Board of Directors in advance of payment
of each particular dividend.
In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or
involuntary, after the distribution or payment to the holders
of shares of any series of Preferred Stock as provided by the
Board of Directors with respect to any such series of
Preferred Stock, the remaining assets of the Corporation
available for distribution to stockholders shall be
distributed among and paid to the holders of Common Stock
ratably in proportion to the number of shares of Common Stock
held by them respectively.
B. PREFERRED STOCK
The Board of Directors is hereby authorized as it may
determine to issue shares of Preferred Stock at any time and
from time to time, in one or more series, and to fix or alter
the designations, preferences and relative, participating,
optional or other special rights and qualifications,
limitations or restrictions, of such shares of Preferred
Stock, including without limitation of the generality of the
foregoing, dividend rights, dividend rates, conversion rights,
voting rights, rights and terms of redemption (including
sinking fund provisions), redemption price or prices and
liquidation preferences of any wholly unissued series of
preferred shares and the number of shares constituting any of
such series and the designation thereof, or any of them; and
to increase or decrease the number of shares of that series,
but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall
be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such
series."
FIFTH: This Certificate of Amendment shall be effective upon its filing
with the Secretary of State for the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed and sealed by Douglas C. Collins, its President and Chief
Executive Officer, and attested by Robert B. Lee, its Secretary, Senior Vice
President and Chief Financial Officer, this ____ day of _______, 1998.
BUCKHEAD AMERICA CORPORATION
By:
Douglas C. Collins
President and Chief Executive Officer
[Corporate Seal]
ATTEST:
Robert B. Lee
Secretary, Senior Vice President and Chief Financial Officer
<PAGE>
ANNEX 1
BUCKHEAD AMERICA CORPORATION
1998 EMPLOYEE STOCK OPTION PLAN
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Buckhead America Corporation 1998 Employee Stock Option
Plan (the "Plan") is to enable Buckhead America Corporation (the "Company") to
attract, retain and reward directors, employees, and key advisors to the Company
and its Subsidiaries and Affiliates, and strengthen the mutuality of interests
between such persons and the Company's shareholders, by offering them
performance-based stock incentives in the Company.
For purposes of the Plan, the following terms shall be defined as set forth
below:
a. "Affiliate" means any entity other than the Company and its
Subsidiaries that is designated by the Board as a participating
employer under the Plan, provided that the Company directly or
indirectly owns at least 20% of the combined voting power of all
classes of stock of such entity or more than 50% of the ownership
interests in such entity.
b. "Board" means the Board of Directors of the Company.
c. "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
d. "Company" means Buckhead America Corporation, a corporation
organized under the laws of the State of Delaware, or any successor
corporation.
e. "Disability" means disability as determined under procedures
established by the Board for purposes of this Plan and shall in all
events be consistent with the definition of disability provided in
Section 422 of the Code (or any successor provision). (Section 422 of
the Code sets forth the requirements for a stock option to qualify as
an incentive stock option under the Internal Revenue Code of 1986, as
amended, see "Incentive Stock Option" below.)
f. "Early Retirement" means retirement, with the express written
consent for purposes of this Plan of the Company, at or before the
time of such retirement, from active employment with the Company and
any Subsidiary or Affiliate pursuant to the early retirement
provisions of the applicable pension plan of such entity.
g. "Fair Market Value" means, as of any given date, unless
otherwise determined by the Board in good faith:
(i) if the Stock is listed on an established stock exchange
or exchanges, or traded on the NASDAQ National Market System
539826.1
<PAGE>
("NASDAQ/NMS") the highest closing price of the Stock as listed
thereon on the applicable day, or if no sale of Stock has been
made on any exchange or on NASDAQ/NMS on that date, on the next
preceding day on which there was a sale of Stock;
(ii) if the Stock is not listed on an established stock
exchange or NASDAQ/NMS but is instead traded over-the-counter,
the mean of the dealer "bid" and "ask" prices of the Stock in the
over-the-counter market on the applicable day, as reported by the
National Association of Securities Dealers, Inc.;
(iii) if the Stock is not listed on any exchange or traded
over-the-counter, the value determined in good faith by the
Board.
h. "Incentive Stock Option" means any Stock Option intended to be and
designated as an "Incentive Stock Option" within the meaning of Section 422
of the Code (or any successor provision).
i. "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
j. "Normal Retirement" means retirement from active employment with
the Company and any Subsidiary or Affiliate on or after age 65.
k. "Outstanding Stock" shall include all shares of Common Stock, $.01
par value, of the Company as well as the number of shares of Common Stock
into which then outstanding shares of capital stock of the Company, of
whatever class, are convertible as of the year-end immediately preceding
the date of calculation thereof (as adjusted by the Board for certain
events).
l. "Plan" means this Buckhead America Corporation 1998 Employee Stock
Option Plan, as hereinafter amended from time to time.
m. "Retirement" means Normal or Early Retirement.
n. "Stock" means the Common Stock, $.01 par value per share, of the
Company.
o. "Stock Option" or "Option" means any option to purchase shares of
Stock granted pursuant to Section 5 below.
p. "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the unbroken chain) owns
stock possessing 100% or
539826.1
-2-
<PAGE>
more of the total combined voting power of all classes of stock in one of
the other corporations in the chain.
In addition, the term "Cause" shall have the meaning set forth in
Section 5(i) below.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board. The Board shall have full
authority to grant Stock Options, pursuant to the terms of the Plan, to
directors, officers and other employees and persons eligible under Section 4.
In particular, the Board shall have the authority:
(i) subject to Section 4 hereof, to select the directors,
officers and other employees of the Company or its Subsidiaries and
Affiliates, or other eligible persons, to whom Stock Options may from
time to time be granted hereunder;
(ii) to determine whether and to what extent Incentive Stock
Options, Non-Qualified Stock Options, or any combination thereof, are
to be granted hereunder to one or more eligible employees;
(iii) to determine the number of shares to be covered by each
such award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any award granted hereunder (including, but
not limited to, the share price and any restriction or limitation, or
any vesting acceleration or waiver of forfeiture restrictions
regarding any Stock Option and/or the shares of Stock relating
thereto, based in each case on such factors as the Board shall
determine, in its sole discretion);
(v) to determine whether and under what circumstances a Stock
Option may be settled in cash;
(vi) to determine whether, to what extent and under what
circumstances Stock and other amounts payable with respect to an award
under this Plan shall be deferred either automatically or at the
election of the participant (including providing for and determining
the amount (if any) of any deemed earnings on any deferred amount
during any deferral period).
The Board shall have the authority to adopt, alter and repeal such rules,
guidelines and practices governing the Plan as it shall, from time to time, deem
advisable; to interpret the terms
539826.1
-3-
<PAGE>
and provisions of the Plan and any award issued under the Plan (and any
agreements relating thereto); and to otherwise supervise the administration of
the Plan.
All decisions made by the Board pursuant to the provisions of the Plan
shall be made in the Board's sole discretion and shall be final and binding on
all persons, including the Company and Plan participants.
SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for distribution
under the Plan shall be 90,000 shares. Such shares may consist, in whole or in
part, of authorized and unissued shares or treasury shares.
Subject to section 6(b)(iv) below, if any shares of Stock that have been
optioned hereunder cease to be subject to a Stock Option or any such award
otherwise terminates without a payment being made to the participant in the form
of Stock, such shares shall again be available for distribution in connection
with future awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividends, stock split or other changes in corporate
structure affecting the Stock, and subject to Sections 5(k) and 5(m), such
substitution or adjustment shall be made in the aggregate number of shares
reserved for issuance under the Plan, in the number and option price of shares
subject to outstanding Options granted under the Plan and in the number of
shares subject to other outstanding awards granted under the Plan as may be
determined to be appropriate by the Board, in its sole discretion, provided that
the number of shares subject to any award shall always be a whole number.
SECTION 4. ELIGIBILITY.
Directors, officers and other employees of the Company or its Subsidiaries
and Affiliates (but as to incentive stock options, excluding any person who
serves only as a director) who are responsible for or contribute to the
management, growth and/or profitability of the business of the Company and/or
its Subsidiaries and Affiliates are eligible to be granted awards under the
Plan. In addition, the Board may grant awards, other than Incentive Stock
Options, to its consultants or advisors who have provided bona fide services to
the Company in connection with matters other than the offer and sale of
securities in a capital-raising transaction.
SECTION 5. STOCK OPTIONS.
Any Stock Option granted under the Plan shall be in such form as the Board
may from time to time approve. Stock Options granted under the Plan may be of
two types: (i) Incentive Stock Options, and (ii) Non-Qualified Stock Options.
539826.1
-4-
<PAGE>
Subject to the restrictions contained in Section 4 hereof concerning
the grant of Incentive Stock Options, the Board shall have the authority to
grant to any optionee Incentive Stock Options, Non-Qualified Stock Options, or
both types of Stock Options.
Options granted under the Plan shall be subject to the following terms
and conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Board shall deem desirable:
(a) Option Price. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Board at the time of grant
but shall be (i) not less than 100% (or, in the case of an employee who
owns stock possessing more than 10 percent of the total combined voting
power of all classes of capital stock of the Company or of any of its
subsidiary or parent corporations, not less than 110%) of the Fair Market
Value of the Stock at grant, in the case of Incentive Stock Options, and
(ii) not less than 90% of the Fair Market Value of the Stock at grant, in
the case of Non-Qualified Stock Options.
(b) Option Term. The term of each Stock Option shall be fixed by the
Board, but no Stock Option shall be exercised more than ten years (or, in
the case of an Incentive Stock Option held by an employee who owns stock
possessing more than 10 percent of the total combined voting power of all
classes of stock of the Company or any of its subsidiary or parent
corporations, more than five years) after the date the Option is granted.
(c) Exercisability. Stock Options shall be exercised at such time or
times and subject to such terms and conditions as shall be determined by
the Board at or after grant. If the Board provides, in its sole discretion,
that any Stock Option is exercisable only in installments, the Board may
waive such installment exercise provisions at any time at or after grant in
whole or in part, based on such factors as the Board shall determine, in
its sole discretion.
(d) Method of Exercise. Subject to whatever installment exercise
provisions apply under Section 5(c), Stock Options may be exercised in
whole or in part at any time during the option period, by giving written
notice of exercise to the Company specifying the number of shares to be
purchased.
Such notice shall be accompanied by payment in full of the purchase
price either by cash, check or such other instrument as the Board may
accept. As determined by the Board, in its sole discretion, at or after
grant, payment in full or in part may also be made in the form of
unrestricted Stock already owned by the optionee based, in each case, on
the Fair Market Value of the Stock on the date the option is exercised.
No shares of Stock shall be issued until full payment therefor has
been made. An optionee shall generally have the rights to dividends or
other rights of a shareholder with respect to shares subject to the Option
when the optionee has given written notice of
539826.1
-5-
<PAGE>
exercise, has paid in full for such shares, and, if requested, has given
the representation described in Section 11(a).
(e) Non-Transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution or pursuant to a qualified domestic relations
order as defined by the Internal Revenue Code of 1986, as amended, or Title
I of the Employee Retirement Income Security Act, or the rules thereunder,
and all Stock Options shall be exercisable, during the optionee's lifetime,
only by the optionee.
(f) Termination by Death. Subject to Section 5(k), if an optionee's
employment by the Company and any Subsidiary or Affiliate terminates by
reason of death any Stock Option held by such optionee may thereafter be
exercised to the extent such option was exercisable at the time of death or
on such accelerated basis as the Board may determine at or after grant (or
as may be determined in accordance with procedures established by the
Board), by the legal representative of the estate or by the legatee of the
optionee under the will of the optionee, for a period of one year (or such
other period as the Board may specify at grant) from the date of such death
or until the expiration of the stated term of such Stock Option, whichever
period is the shorter.
(g) Termination by Reason of Disability. Subject to Section 5(k), if
an optionee's employment by the Company and any Subsidiary or Affiliate
terminates by reason of Disability, any Stock Option held by such optionee
may thereafter be exercised by the optionee, to the extent it was
exercisable at the time of termination or on such accelerated basis as the
Board may determine at or after grant (or as may be determined in
accordance with procedures established by the Board), for a period of three
years (or such other period as the Board may specify at grant) from the
date of such termination of employment or until the expiration of the
stated term of such Stock Option, whichever period is the shorter;
provided, however, that, if the optionee dies within such three-year period
(or such other period as the Board shall specify at grant), any unexercised
Stock Option held by such optionee shall thereafter be exercisable pursuant
to Section 5(f). In the event of termination of employment by Disability,
if a Stock Option heretofore designated as an Incentive Stock Option is
exercised more than one (1) year after such termination of employment, such
Stock Option shall be treated as a Non-Qualified Stock Option.
(h) Termination by Reason of Retirement. Subject to Section 5(k), if
an optionee's employment by the Company and any Subsidiary or Affiliate
terminates by reason of Normal or Early Retirement, any Stock Option held
by such optionee may be exercised by the optionee, to the extent it was
exercisable at the time of such Retirement or on such accelerated basis as
the Board may determine at or after grant (or as may be determined in
accordance with procedures established by the Board), for a period of three
years (or such other period as the Board may specify at grant) from the
date of such termination or the expiration of the stated term of such Stock
Option, whichever period is the shorter; provided, however, that if the
optionee dies within such three-year period
539826.1
-6-
<PAGE>
(or such other period as the Board may specify at grant), any unexercised
Option held by such optionee shall thereafter be exercisable pursuant to
Section 5(f). In the event of termination of employment by Retirement, if a
Stock Option theretofore designated as an Incentive Stock Option is
exercised more than three (3) months after such termination of employment,
such Stock Option shall be treated as a Non-Qualified Stock Option.
(i) Other Termination. Unless otherwise determined by the Board (or
pursuant to procedures established by the Board) at or after grant, if an
Employee's employment by the Company and any Subsidiary or Affiliate
terminates:
(i) due to voluntary resignation of employment by the Optionee,
the Stock Option shall thereupon terminate;
(ii) due to death, Disability, Normal or Early Retirement, then
the provisions of Sections 5(f), 5(g), 5( h), as appropriate, shall
apply;
(iii) due to involuntary termination of the Optionee's employment
by the Company, any Subsidiary or Affiliate without "Cause", the Stock
Option shall thereupon terminate, except that the Stock Option may be
exercised, to the extent otherwise then exercisable, for the lesser of
three months or the balance of such Stock Option's term;
(iv) for any other reason, including termination of the
Optionee's employment for Cause, the Stock Option shall thereupon
terminate.
For purposes of this Plan, "Cause" means a felony conviction of a
participant or the failure of a participant to contest prosecution for
a felony, or a participant's willful misconduct or dishonesty, or other
unauthorized activity any of which, in the good faith opinion of the
Board, is directly and materially harmful to the business or reputation
of the Company or any Subsidiary or Affiliate.
(j) Buyout Provisions. The Board may at any time offer to buy out for
a payment in cash or Stock an option previously granted, based on such
terms and conditions as the Board shall establish and communicate to the
optionee at the time that such offer is made.
(k) Certain Recapitalizations. In general, if the Company is merged
into or consolidated with another corporation under circumstances in which
the Company is not the surviving corporation, or if the Company is
liquidated, or sells or otherwise disposes of substantially all of its
assets to another corporation (any such merger, consolidation, etc., being
hereinafter referred to as a "Non-Acquiring Transaction") while unexercised
options are outstanding under the Plan, after the effective date of a
Non-Acquiring Transaction each holder of an outstanding option shall be
entitled, upon exercise of such option, to receive such stock or other
securities as the holders of the same class of stock as those shares
subject to the option shall be entitled to receive in such Non-Acquiring
539826.1
-7-
<PAGE>
Transaction based upon the agreed upon conversion ratio or per share
distribution.
However, in the discretion of the Board of Directors, any limitations
on exercisability of options may be waived so that all options, from and
after a date prior to the effective date of such Non-Acquiring Transaction
shall be exercisable in full. Furthermore, in the discretion of the Board,
the right to exercise may be given to each holder of an option during a
30-day period preceding the effective date of such Non-Acquiring
Transaction. Any outstanding options not exercised within such 30-day
period may be cancelled by the Board as of the effective date of any such
Non-Acquiring Transaction. To the extent that the foregoing adjustments
relate to stock or securities of the Company, such adjustments shall be
made by the Board, whose determination in that respect shall be final,
binding and conclusive.
(l) Subdivision or Consolidation. Except as set forth in this Plan,
optionees shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase of decrease in the number of shares of stock
of any class or by reason of any dissolution, liquidation, merger, or
consolidation or spinoff of stock of another corporation, and no issue by
the Company of shares of stock of any class shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of
shares subject to the option. The grant of any option pursuant to the Plan
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or to transfer all or any part of its business or
assets.
(m) Fractional Shares. If any adjustment referred to herein shall
result in a fractional share for any optionee under any option hereunder,
such fraction shall be completely disregarded and the optionee shall only
be entitled to the whole number of shares resulting from such adjustment.
SECTION 6. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue the Plan, but, except as
otherwise provided herein, no amendment, alteration, or discontinuation shall be
made which would impair the rights of an optionee or participant under a Stock
Option theretofore granted, without the optionee's or participant's consent, or
which, without the approval of the Company's stockholders, would:
(a) materially increase the benefits accruing to participants under
the Plan;
(b) materially increase the number of securities which may be issued
under the Plan; or
539826.1
-8-
<PAGE>
(c) materially modify the requirements as to eligibility for
participation in the Plan.
The Board may amend the terms of any Stock Option theretofore granted,
prospectively or retroactively, but, subject to Section 3 above, no such
amendment shall impair the rights of any holder without the holder's consent.
The Board may also substitute new Stock Options for previously granted Stock
Options (on a one for one or other basis), including previously granted Stock
Options having higher option exercise prices.
Subject to the above provisions, the Board shall have broad authority to
amend the Plan to take into account changes in applicable securities and tax
laws and accounting rules, as well as other developments.
SECTION 9. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Board may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Stock or payments in lieu of or with respect to awards
hereunder; provided, however, that, unless the Board otherwise determines with
the consent of the affected participant, the existence of such trusts or other
arrangements is consistent with the "unfunded" status of the Plan.
SECTION 10. WITHHOLDING.
The Company's obligation to deliver shares upon the exercise of any Option
granted under the Plan or to make any payments required by any option agreement
shall be subject to the Optionee's satisfaction of any applicable federal,
state, and local income and employment tax and withholding requirements in a
manner and form satisfactory to the Company.
SECTION 11. GENERAL PROVISIONS.
(a) The Board may require each person purchasing shares pursuant to a
Stock Option under the Plan to represent to and agree with the Company in
writing that the optionee or participant is acquiring the shares for
investment and without a view to distribution thereof. The certificates for
such shares may include any legend which the Board deems appropriate to
reflect any restrictions on transfer.
All certificates for shares of Stock or other securities delivered
under the Plan shall be subject to such conditions, stop-transfer orders
and other restrictions as the Board may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Stock is then
539826.1
-9-
<PAGE>
listed, and any applicable Federal or state securities law, and the Board
may cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements
may be either generally applicable or applicable only in specific cases.
(c) The adoption of the Plan shall not confer upon any employee of the
Company or any Subsidiary or Affiliate any right to continued employment
with the Company or a Subsidiary or Affiliate, as the case may be, nor
shall it interfere in any way with the right of the Company or a Subsidiary
or Affiliate to terminate the employment of any of its employees at any
time.
(d) No later than the date as of which an amount first becomes
includable in the gross income of the participant for Federal income tax
purposes with respect to the exercise of any Option, the participant shall
pay to the Company, or make arrangements satisfactory to the Board
regarding the payment of, any Federal, state, or local taxes of any kind
required by law to be withheld with respect to such amount. The obligations
of the Company under the Plan shall be conditional on such payment or
arrangements and the Company and its Subsidiaries or Affiliates shall, to
the extent permitted by law, have the right to deduct any such taxes from
any payment of any kind otherwise due to the participant.
(e) The Plan and all awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of
Georgia.
SECTION 12. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of April __, 1998, upon the approval of the
Plan by a majority of the votes cast by the holders of the Company's capital
stock entitled to vote thereon at the Company's Annual Meeting of Stockholders
to be held on such date.
SECTION 13. TERM OF PLAN.
No Stock Option shall be granted pursuant to the Plan on or after the tenth
anniversary of the effective date of the Plan, but awards granted prior to such
tenth anniversary may extend beyond that date.
539826.1
-10-
<PAGE>
ANNEX 2
PROXY
BUCKHEAD AMERICA CORPORATION
4243 DUNWOODY CLUB DRIVE
SUITE 200
ATLANTA, GA 30350
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned, revoking all prior proxies, hereby appoints Douglas C.
Collins and Robert B. Lee, and each of them, as Proxies, each with the power to
appoint his substitute, and hereby authorizes each of them to represent and to
vote, as designated below, all the shares of Common Stock of Buckhead America
Corporation (the "Company") held of record by the undersigned on April 24, 1998,
at the Annual Meeting of Shareholders to be held on May 28, 1998 or any
adjournment thereof (the "Meeting").
1. ELECTION OF DIRECTORS
FOR all nominees listed below REFRAIN FROM VOTING FOR election of (except as
marked to the contrary below) [] the individuals set forth as directors []
(INSTRUCTION: To withhold authority to vote for any individual nominee strike a
line through the nominee's name in the list below.)
Douglas C. Collins, Robert M. Miller, William K. Stern, Robert B. Lee and Steven
A. Van Dyke
2. Proposal to amend the Company's Certificate of Incorporation to increase the
number of authorized shares of Common Stock of the Company from 3,000,000 shares
to 5,000,000 shares.
[] FOR [] AGAINST [] ABSTAIN
- --------------------------------------------------------------------------------
3. Proposal to approve the adoption of the Company's 1998 Employee Stock
Option Plan.
[] FOR [] AGAINST [] ABSTAIN
4. In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the Meeting. THE PROXIES SHALL VOTE AS
SPECIFIED ABOVE, OR IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR EACH
OF THE LISTED PROPOSALS.
Date: ________________, 1998
---------------------------
(Signature)
---------------------------
(Signature if held jointly)
(Stockholders should sign exactly as
name appears on stock. Where there
is more than one owner each should
sign. Executors, Administrators,
Trustees and others signing in a
representative capacity should so
indicate.)
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
