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EXHIBIT 3.01
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
NORTHERN AUTOMOTIVE CORPORATION
The Amended and Restated Articles of Incorporation of Northern Automotive
Corporation are hereby amended in their entirety to read as follows:
FIRST: The name of the corporation (hereinafter called the "Corporation")
is:
CSK AUTO, INC.
SECOND: The address, including street, number, city, and county, of the
known place of business of the Corporation in the State of Arizona is 645 E.
Missouri Avenue, Suite 400, City of Phoenix, County of Maricopa, and the name
of the statutory agent of the Corporation in the State of Arizona is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Arizona Business
Corporation Act ("ABCA").
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Three Hundred One Thousand Five
Hundred (301,500). There shall be three classes of stock of the Corporation.
The first class of stock of the Corporation shall have a par value of $.01 per
share and shall be designated as "Common Stock" and the number of shares
constituting such class shall be Twenty Thousand (20,000). The second class of
stock of the Corporation shall have a par value of $1,000 per share and shall
be designated as "Preferred Stock" and the number of shares constituting such
class shall be Seventy-Five Thousand (75,000). The third class of stock of the
Corporation shall have a par value of $.01 per share and shall be designated as
"Series A Cumulative Preferred Stock" and the number of shares constituting
such class shall be Two Hundred Six Thousand Five Hundred (206,500); said class
is sometimes referred to in these Articles as "Series A Preferred Stock." The
par value shall be paid in at such time as the Board of Directors of the
Corporation (the "Board") may designate, in cash, real or personal property,
services, lease, option to purchase, or any other valuable right or thing, for
the uses and purposes of the Corporation, and all shares of capital stock, when
issued in exchange therefor, shall thereupon and thereby become and be fully
paid, the same as though paid for in cash at par, and shall be non-assessable
forever, and the judgment of the Board as to the value of any property, right
or thing acquired in exchange for capital stock shall be conclusive.
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The designation, preferences, privileges, voting powers, restrictions and
qualifications of the shares of Common Stock, Preferred Stock and Series A
Preferred Stock are as follows:
(A) PREFERRED STOCK
1. Dividends.
(a) The holders (the "Preferred Stockholders") of outstanding shares of
Preferred Stock shall be entitled to receive, when and as declared by the
Board, out of any funds legally available therefor, cumulative dividends at the
rate of $140 per share per annum and no more. Such dividends on the shares of
Preferred Stock shall accrue from the date of issuance thereof and shall be
payable annually on the 1st day of June in each year (each, a "Payment Date").
All dividends accrued shall, at the Corporation's option, be paid in cash or
additional shares of Preferred Stock (at the rate of one share for each $1,000
of dividends so paid).
(b) No dividends shall be declared or paid or set aside for payment to any
holders of Common Stock (the "Common Stockholders"), and no such stock shall be
purchased, redeemed or otherwise acquired for any consideration by the
Corporation, unless and until the full cumulative dividends on all outstanding
shares of Preferred Stock shall have been, or contemporaneously are, declared
and paid or declared and a sum sufficient for the payment thereof set aside for
such payment.
2. Liquidation. In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation, whether voluntary or involuntary
(collectively, a "Liquidation"), the Preferred Stockholders shall be entitled
to receive, out of the net assets of the Corporation, after payment or
provision for payment of the debts and other liabilities of the Corporation,
the amount of $1,000 per share, plus an amount equal to all accrued and unpaid
dividends (whether or not earned or declared) on each such share up to the date
fixed for distribution, before any distribution or payment shall be made to any
Common Stockholder. After payment to the Preferred Stockholders of the full
amounts to which they are entitled, they shall have no right or claim to any of
the balance of the net assets of the Corporation. Neither the consolidation
nor merger of the Corporation into or with any other corporation nor the sale
or transfer by the Corporation of all or any part of its assets shall be deemed
a Liquidation within the meaning of the provisions of this Section (A) 2.
3. Voting. Shares of Preferred Stock shall not entitle the holder thereof
to any voting power as to any matter, including the right to participate in any
meeting of stockholders, to have notice of any meeting of stockholders or to
take action without a meeting, except as otherwise provided by law. On any
matters on which the Preferred Stockholders are entitled to vote, each such
Preferred Stockholder shall be entitled to one vote for each share held.
The Preferred Stock shall be issuable in one or more series in such
designations, and with such relative rights and limitations, as may be fixed
from time to time by the Board.
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(B) SERIES A PREFERRED STOCK
The number of authorized shares of Series A Preferred Stock is Two Hundred
Six Thousand Five Hundred (206,500). The designations, preferences and
relative, participating optional and other special rights of the Series A
Preferred Stock, unless otherwise fixed by the Board of Directors, and the
qualifications, limitations and restrictions thereof, are as follows:
1. Dividend Rate.
(a) Dividends on the shares of Series A Preferred Stock (including
Additional Shares) shall accrue from the date on which each specific
share of Series A Preferred Stock is issued at a rate of twelve percent
(12%) per annum computed on the basis of the actual number of days
elapsed in a 360-day year of twelve 30-day months, and shall be paid in
cash when and as declared by the Board, to the extent the Corporation has
funds legally available to pay such dividends in cash and the use of such
funds would not violate any law or statute and would not directly or
indirectly (with the passage of time or giving of notice) cause a default
or event of default under any indebtedness or other contractual agreement
of the Corporation or any corporation or other entity directly or
indirectly controlled by the Corporation. To the extent that the
dividend payment due upon any Dividend Payment Date (as defined herein)
is not paid in full in cash the Corporation shall pay such dividend by
means of the issuance of Additional Shares (or fractions thereof), which
shares will be issued in such amount that the aggregate Liquidation
Preference of such shares is equal to the aggregate dollar value of
dividends that the Corporation is not paying in cash on such Dividend
Payment Date. A dividend payment paid in Additional Shares shall be
deemed to fully satisfy the Corporation's obligations with respect to
dividends for all purposes, provided that such payment is in accordance
with the provisions of this subsection. All Additional Shares issued as
a dividend with respect to the Series A Preferred Stock will thereupon be
duly authorized, validly issued, fully paid and nonassessable. All
dividends shall be cumulative and shall be payable semi-annually in
arrears on April 30 and October 31 of each year, commencing, in the case
of the first issuance of shares of Series A Preferred Stock, April 30,
1997 (each such date being hereinafter individually a "Dividend Payment
Date" and collectively the "Dividend Payment Dates"), except that if any
Dividend Payment Date is a Saturday, Sunday or legal holiday then such
dividend shall be paid on the next business day following such Dividend
Payment Date and no additional amount shall accrue as a result of such
delay. Holders of shares of Series A Preferred Stock shall not be
entitled to any dividends, whether payable in cash, Additional Shares,
property or stock, in excess of full cumulative dividends, as provided in
paragraphs (a) and (b) of this Section 1 on the Series A Preferred Stock.
For purposes of this Section (B) "Additional Shares" means any shares of
Series A Preferred Stock (or fractions thereof) issued in payment of
dividends in lieu of cash dividend payments.
(b) Each dividend shall be paid to the holders of record of shares
of Series A Preferred Stock as they appear on the books of the
Corporation on the record date, not exceeding 30 days prior to the
Dividend Payment Date thereof, as shall be fixed by the Board. Dividends
in arrears may be declared and paid at any time, without reference to
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any regular Dividend Payment Date, to holders of record on such date, not
exceeding 45 days preceding the payment date thereof, as may be fixed by
the Board.
(c) Each fractional share of Series A Preferred Stock outstanding
shall be entitled to a ratably proportionate amount of all dividends
accruing with respect to each outstanding share of Series A Preferred
Stock pursuant to paragraphs (a) and (b) of this Section 1, and all such
dividends with respect to such outstanding fractional shares shall be
cumulative and shall accrue (whether or not declared), and shall be
payable in the same manner and at such times as provided for in
paragraphs (a) and (b) of this Section 1 with respect to dividends on
each outstanding share of Series A Preferred Stock. Each fractional
share of Series A Preferred Stock outstanding shall also be entitled to a
ratably proportionate amount of any other distributions made with respect
to each outstanding share of Series A Preferred Stock, and all such
distributions shall be payable in the same manner and at the same time as
distributions on each outstanding share of Series A Preferred Stock.
(d) Except as hereinafter provided, no dividends (either in cash or
Additional Shares) shall be declared or paid or set apart for payment on
the shares of Series A Preferred Stock for any period if the Corporation
shall be in default in the payment of any dividends (including cumulative
dividends, if applicable) on any shares of preferred stock ranking, as to
dividends, prior to the Series A Preferred Stock, unless a dividend
sufficient to cure such default shall be contemporaneously declared and
paid.
(e) Except as hereinafter provided, no dividends shall be declared
or paid or set apart for payment on the preferred stock of any class or
series ranking, as to dividends, on a parity with or junior to the Series
A Preferred Stock for any period unless full cumulative dividends have
been or contemporaneously are declared and paid on the Series A Preferred
Stock through the last Dividend Payment Date. When dividends are not
paid in full in cash, as aforesaid, upon the shares of Series A Preferred
Stock and any other preferred stock ranking on a parity as to dividends
with the Series A Preferred Stock, all dividends declared upon shares of
the Series A Preferred Stock and any other preferred stock ranking on a
parity as to dividends with the Series A Preferred Stock shall be
declared pro rata so that the amount of cash dividends declared per share
on the Series A Preferred Stock and such other preferred stock shall in
all cases bear to each other the same ratio that accrued cash dividends
per share on the shares of the Series A Preferred Stock and such other
preferred stock bear to each other. Nothing herein shall limit or
prevent the distribution of dividends payable in the form of Additional
Shares. Such dividends paid in the form of Additional Shares shall not
be included in any calculation of accrued or pro rata dividends for
purposes of this paragraph (e) of Section 2.
(f) So long as any share of the Series A Preferred Stock is
outstanding, no dividend (other than (i) a dividend payable in Common
Stock or in any other stock of the Corporation ranking junior to the
Series A Preferred Stock as to dividends and upon liquidation or (ii) as
provided in paragraph (e) of this Section 1, shall be declared or paid or
set aside for payment, or other distribution declared or made, upon the
Common Stock or upon any other stock of the Corporation ranking junior to
or on a parity with the Series
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A Preferred Stock as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the Corporation ranking junior to or
on a parity with the Series A Preferred Stock as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the Series A Preferred Stock as to
dividends and upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of the Preferred Stock shall have
been paid or contemporaneously are declared and paid through the last
Dividend Payment Date; provided, however, that nothing contained in this
paragraph (f) shall prevent the Corporation from repurchasing or
redeeming any of its capital stock pursuant to the terms of any
subscription agreement entered into with any officer, director or
employee of the Corporation or any of its subsidiaries.
2. Optional Redemption. The shares of Series A Preferred Stock are
redeemable on the terms and conditions set forth below, at any time or
from time to time, at the option of the Corporation expressed by
resolution of the Board, at a per share redemption price of One Thousand
and Ten Dollars ($1,010.00) plus, in each case, accrued and unpaid
dividends thereon to the date fixed for redemption. The shares of Series
A Preferred Stock may be redeemed in whole or in part in not more than
three partial redemptions, provided that in the first of such three
partial redemptions not 1ess than 20% of the number of shares of Series A
Preferred Stock then outstanding shall be redeemed, that in the second of
such three partial redemptions not less than 50% of the number of shares
of Series A Preferred Stock then outstanding shall be redeemed, and that
in the third of such three partial redemptions all of the shares of
Series A Preferred Stock then outstanding shall be redeemed.
3. Mandatory Redemption. On October 31, 2008, the Corporation shall
redeem all outstanding shares of Series A Preferred Stock at a per share
redemption price of One Thousand Dollars ($1,000.00) plus accrued and
unpaid dividends thereon to the date fixed for redemption.
4. Procedure for Redemption.
(a) If fewer than all the outstanding shares of Series A Preferred
Stock are to be redeemed, the number of shares to be redeemed shall be
determined by the Board, subject to the provisions of Sections 2 and 3
above, and the shares to be redeemed shall be determined by lot or pro
rata as may be determined by the Board or by any other method as may be
determined by the Board in its sole discretion to be equitable.
(b) Notice of a redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to
the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the books of
the Corporation. Each such notice shall state: (i) the redemption date;
(ii) the number of shares of Series A Preferred Stock to be redeemed and,
if fewer than all the shares held by such holder are to be redeemed, the
number of such shares to be
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redeemed from such holder; (iii) the redemption price; (iv) the place or
places where certificates for such shares are to be surrendered for
payment of the redemption price; (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date; and (vi) any other
information required by applicable laws or regulations.
(c) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price of the shares
called for redemption) dividends on the shares of Series A Preferred
Stock so called for redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price plus accrued and unpaid
dividends to the date fixed for redemption) shall cease. Upon surrender
of the certificates for any shares so redeemed in accordance with said
notice (properly endorsed or assigned for transfer, if the Board shall so
require and the notice shall so state), such shares shall be redeemed by
the Corporation at the redemption price aforesaid. In case fewer than
all of the shares presented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(d) Any shares of Series A Preferred Stock which shall at any time
have been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Series A Preferred Stock. No redeemed
shares of Series A Preferred Stock shall be reissued as shares of Series
A Preferred Stock.
(e) If the Corporation shall be in default in the payment of any
dividends on any shares of preferred stock ranking, as to dividends,
prior to the Series A Preferred Stock, then no shares of Series A
Preferred Stock shall be redeemed and the Corporation shall not purchase
or otherwise acquire any shares of Series A Preferred Stock.
(f) Notwithstanding the foregoing provisions of this Section 4,
unless the full cumulative dividends on all outstanding shares of Series
A Preferred Stock shall have been paid or contemporaneously are declared
and paid through the last Dividend Payment Date, no shares of Series A
Preferred Stock shall be redeemed unless all outstanding shares of Series
A Preferred Stock are simultaneously redeemed; provided, however, that
the foregoing shall not prevent the purchase or acquisition of shares of
Series A Preferred Stock pursuant to a purchase or exchange offer made on
the same terms to all holders of outstanding shares of Series A Preferred
Stock.
5. Voting. The shares of Series A Preferred Stock shall not have
any voting powers either general or special, except as required by law or
regulation and except that unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of
the holders of at least a majority of all of the shares of Series A
Preferred Stock, and all other classes and series of preferred stock
ranking on a parity with the Series A Preferred Stock either as to
dividends or upon liquidation and upon which like voting rights have been
conferred and are then exercisable, at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting called
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for the purpose at which the holders of such shares shall vote together
as a single class without regard to series, shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal
of any of the provisions of the Articles of Incorporation or of any
amendatory Statement thereto (including any document relating to any
series of preferred stock) so as to affect materially and adversely the
rights, preferences, privileges or voting power of shares of Series A
Preferred Stock. In case the shares of Series A Preferred Stock would be
so affected in a materially different manner than any other class or
series of preferred stock then outstanding by any such action, the
holders of shares of Series A Preferred Stock shall be entitled to vote
as a separate class, and the Corporation shall not take such action
without the consent or affirmative vote, as above provided, of at least a
majority of the total number of shares of Series A Preferred Stock then
outstanding, in addition to or as a specific part of the consent or
affirmative vote hereinabove otherwise required. The increase of the
authorized amount of any preferred stock, or the creation, authorization
or issuance of any shares of any other class or series of stock of the
Corporation ranking (i) junior to the Series A Preferred Stock, or (ii)
on a parity with the shares of Series A Preferred Stock, as to dividends
or upon liquidation, or the reclassification of any authorized or
outstanding stock of the Corporation into any such junior or parity
shares, or the creation, authorization or issuance of any obligation or
security convertible into or evidencing the right to purchase any such
junior or parity shares shall not be deemed to affect materially and
adversely the rights, preferences, privileges or voting power of shares
of Series A Preferred Stock.
6. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares
of Series A Preferred Stock shall be entitled to receive out of the
assets of the Corporation available for distribution to stockholders,
before any payment or distribution shall be made on the Common Stock or
on any other class of stock ranking junior to Series A Preferred Stock
upon liquidation, the amount of One Thousand Dollars ($1,000.00) per
share (the "Liquidation Preference"), plus a sum equal to all dividends
(whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution, subject only to the provisions
of this paragraph (a) of this Section 6. All shares of preferred stock
ranking in whole or in part prior to the shares of Series A Preferred
Stock as to liquidation shall be entitled to be paid to the extent of
such priority in full in cash, or money for the payment thereof set
apart, before any payment provided for in this Section 6 shall be made
with respect to the shares of Series A Preferred Stock.
(b) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the
property and assets of the Corporation nor the merger or consolidation of
the Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation shall
be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purposes of this Section 6.
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(c) After the payment to the holders of the shares of Series A
Preferred Stock of the full preferential amounts provided for in this
Section 6, the holders of shares of Series A Preferred Stock as such
shall have no right or claim to any of the remaining assets of the
Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of shares of Series A Preferred Stock upon
any dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to paragraph (a) of
this Section 6, no such distribution shall be made on account of any of
shares of any other class or series of preferred stock ranking in whole
or in part on a parity with the shares of Series A Preferred Stock upon
such dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares of Series A
Preferred Stock, ratably, in proportion to the full distributable parity
amounts for which holders of all such parity shares are respectively
entitled upon such dissolution, liquidation or winding up.
7. Priority. For purposes of this Article, any stock of any class
or classes of the Corporation shall be deemed to rank:
(a) Prior to the shares of the Series A Preferred Stock, either as
to dividends or upon liquidation, if the holders of such class or classes
shall be entitled to the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, as the case may be, in preference or priority
to the holders of shares of Series A Preferred Stock. Each holder of any
share of Series A Preferred Stock, by such holder's acceptance thereof,
expressly covenants and agrees that the rights of the holders of any
shares of any other class or series of preferred stock of the Corporation
to receive dividends or amounts distributable upon dissolution,
liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be and hereby are expressly prior to such holder's
rights unless in the case of any particular class or series of preferred
stock the certificate or other instrument creating or evidencing the same
expressly provides that the rights of the holders of such series shall
not be prior to the shares of Series A Preferred Stock.
(b) On a parity with shares of Series A Preferred Stock, either as
to dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share or
sinking fund provisions, if any, be different from those of the Series A
Preferred Stock, if the holders of such stock shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, whether voluntary or
involuntary, as the case may be, in proportion to their respective
dividend rates or liquidation prices, without preference or priority, one
over the other, as between the holders of such stock and the holders of
shares of Series A Preferred Stock. The Preferred Stock shall be on a
parity with the Series A Preferred Stock.
(c) Junior to shares of Series A Preferred Stock, either as to
dividends or upon liquidation, if such class or classes shall be Common
Stock or if the holders of shares of
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Series A Preferred Stock shall be entitled to receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, as the case may be, in
preference to the holders of shares of such class or classes.
(d) All payments to a holder of Series A Preferred Stock shall be
made at the office or agency of the Corporation maintained for such
purpose in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private
debts; provided, however, that at the option of the Corporation payment
may be made (i) by check mailed to such holder at such holder's address
appearing on the records of the Corporation, or (ii) at the request of
such holder, by wire transfer of immediately available funds to the
address designated by such holder in writing.
(C) COMMON STOCK
1. Dividends. Subject to the prior and superior right of the
Preferred Stock and the Series A Preferred Stock, the Common Stockholders
shall be entitled to receive dividends as, when and in the amount
declared by the Board, out of any funds legally available therefore.
2. Liquidation. In the event of any Liquidation, the Common
Stockholders shall be entitled to receive, out of the net assets of the
Corporation, after payment or provision for payment of the debts and
other liabilities of the Corporation and the amounts to be distributed to
the Preferred Stockholders and the holders of Series A Preferred Stock,
that portion of the remaining funds to be distributed. Such funds shall
be paid to the Common Stockholders on the basis of the number of shares
of Common Stock held by each of them. Neither the consolidation nor
merger of the Corporation into or with any other corporation nor the sale
or transfer by the Corporation of all or any part of its assets shall be
deemed a Liquidation within the meaning of the provisions of this Section
(C)2.
3. Voting. Shares of Common Stock shall entitle the holder thereof
to one vote for each share held with respect to all matters voted on by
the stockholders of the Corporation.
FIFTH: The names and mailing addresses of the original incorporators
were as follows:
NAME MAILING ADDRESS
John D. Borie 2503 San Andres Way, Claremont, CA
Jean Melton 231 Begonia Avenue, Ontario, CA
Margaret Main 11969 Del Mar, Chino, CA
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within
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the State of Arizona 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 the ABCA, order a meeting 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 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, such
compromise, arrangement or reorganization, as the case may be, shall, if
sanctioned by the court to which the said application has been made, be binding
on all the stockholders or class of stockholders, of this Corporation, as the
case may be, and also on this Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and its
stockholders or any class thereof, as the case may be, it is further provided:
(A) The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
Corporation has. No election of directors need be by written ballot.
(B) After the original or other By-Laws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 10-1020 of the ABCA, and, after the Corporation has
received any payment for any of its stock, the power to adopt, amend, or
repeal the By-Laws of the Corporation may be exercised by the Board;
provided, however, that any provision for the classification of directors
of the Corporation
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for staggered terms pursuant to the provisions of Section 10-806 of the
ABCA shall be set forth in these Articles of Incorporation.
(C) Whenever the Corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof to
notice of, and the right to vote at, any meeting of stockholders. Whenever
the Corporation shall be authorized to issue more than one class of stock,
no outstanding share of any class of stock which is denied voting power
under the provisions of these Articles of Incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of the ABCA shall otherwise require; provided, that no
share of any such class which is otherwise denied voting power shall
entitle the holder thereof to vote upon the increase or decrease in the
number of authorized shares of said class.
NINTH:
(A) The Corporation shall indemnify each Authorized Representative
to the fullest extent from time to time required or permitted by Article 5
of the ABCA. The Corporation shall make such indemnification to the
Authorized Representative within 30 days after receipt by the Corporation
of the written request of the Authorized Representative for such
indemnification unless, within that time, the Corporation has determined
(in accordancd with Section 10-855 of the ABCA) that the Authorized
Representative is not entitled to such indemnification.
(B) Expenses (including attorneys' fees and all other costs and
expenses reasonably related to a Proceeding) incurred by an Authorized
Representative or on such Authorized Representative's behalf in connection
with any such Proceeding shall be paid by the Corporation in advance of
the final disposition of such Proceeding, within 10 days after receipt by
the Corporation of the written request of the Authorized Representative
for such advance. The Corporation may condition such advance upon the
receipt of: (i) if required by said Article 5, a written affirmation as to
standards of conduct; (ii) whether or not required by said Article 5, the
written undertaking of such Authorized Representative or on such
Authorized Representative's behalf to repay such amount if it shall
ultimately be determined that the Authorized Representative is not
entitled to be indemnified by the Corporation. Such undertaking shall not
be required to be guaranteed by any other person or collateralized, and
shall be accepted by the Corporation without regard to the financial
ability of the person providing such undertaking to make such repayment.
(C) For all purposes of this Article and to the fullest extent
permitted by applicable law, there shall be a rebuttable presumption in
favor of the Authorized Representative that all requested indemnifications
and advancements of expenses are reasonable and that all conditions to
indemnification or expense advancements, whether required under this
Article or the ABCA, have been satisfied.
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(D) As used in this Article, "Authorized Representative" means,
collectively: (i) any person who is or was a "director" (as defined in
Section 10-850 of the ABCA); (ii) any person who is or was an officer of
the Corporation or of any subsidiary of the Corporation; and (iii) any
other person who may be designated by the Board from time to time as an
"authorized representative" for purposes of this Article. The provisions
of Section 10-850 of the ABCA shall apply to this Article.
(E) The Corporation may maintain, at its expense, the insurance
permitted by Section 10-857 of the ABCA.
(F) The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which
any Authorized Representative may have or hereafter acquire under any
statute, these Articles of Incorporation, any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise. Nothing in this
Article shall affect the right of the Corporation to grant rights of
indemnification, and the advancement of expenses, to any other person or
in any other circumstance.
(G) Each Authorized Representative shall be deemed to have acted in
reliance upon the rights to indemnification and advancement of expenses
established in this Article. Unless applicable law requires otherwise, any
repeal or modification of this Article (other than a modification
expanding the right to indemnification and expense advancement in favor of
Authorized Representatives) shall be prospective only and shall not
adversely affect any right or benefit of an authorized Representative to
indemnification or expense advancement existing at the time of such repeal
or modification.
(H) If any portion of this Article shall be held to be illegal,
invalid or otherwise unenforceable by any court having appropriate
jurisdiction, then the Corporation nevertheless indemnify and advance
expenses to each Authorized Representative to the fullest extent permitted
by the applicable portions of this Article not so held to be illegal,
invalid or unenforceable, and otherwise to the fullest extent permitted by
law.
TENTH: For the purposes of determining whether a distribution to
shareholders may be made under the ABCA, the liquidation preference of the
Preferred Stock and the Series A Preferred Stock shall be excluded in the
calculation under Section 10-640 C.(20) of the ABCA.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in these Article of Incorporation, in the manner
now or hereafter prescribed herein and by the laws of the State of Arizona,
and all rights conferred upon stockholders herein are granted subject to this
reservation.
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IN WITNESS WHEREOF, we, the undersigned, have hereunto signed our names
this 29th day of October, 1996.
NORTHERN AUTOMOTIVE CORPORATION
/s/ JAMES BAZLEN
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James Bazlen, President
ATTEST:
By /s/ LON NOVATT
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Lon Novatt, Secretary
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