EXHIBIT 4-D
NUMBER TRUSERV SHARES
CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
NON-QUALIFIED CLASS B COMMON STOCK
NON-VOTING
"Individual Members of TruServ Corporation, not as joint tenants,
tenants-in-common, tenants by their entireties or any other tenancy with other
Member, but as individual, divided and separate owners of that portion hereof
as appears on the books and records of TruServ Corporation; this bulk security
having been issued for convenience only and without intention to affect any
Member's individual ownership of his portion hereof."
THIS CERTIFIES THAT VOID IS THE OWNER OF
____________________________________________
_______________________________________________________________________________
full paid and non-assessable share of the par value of
$100 each of the Class B Common Stock of
TRUSERV CORPORATION
transferable on the books of the Company in person or by
duly authorized Attorney upon surrender of this certificate properly endorsed.
A description of each class of stock and a statement of the designations
and the powers, preferences and rights of the classes of stock, and the
qualifications, limitations or restrictions thereof, as set forth in the
Certificate of Incorporation, and the By-Laws of the Company, appear on the
back hereof. This certificate and the shares represented thereby are issued and
shall be held subject to the provisions of the Certificate of Incorporation and
the By-Laws, and the holder hereof by accepting this certificate expressly
assents thereto and is bound thereby. The shares represented hereby, and any
distributions thereon, are subject to lien as described on the reverse hereof.
IN WITNESS WHEREOF, the said Company has caused this Certificate to be
signed by its duly authorized officers and sealed with the Seal of the Company,
this _________ day of ___________________, A.D. 20______.
VOID VOID
_________________________ __________________________
SECRETARY VICE PRESIDENT
(C) GOES 858 LITHO IN U.S.A.
EXCERPT FROM THE CERTIFICATE OF INCORPORATION
FOURTH. The total number of shares of all classes of Common Stock which this
Corporation shall have the authority to issue is 4,750,000, consisting of:
750,000 shares of Class A Common Stock, $100 par value; and
4,000,000 shares of Class B Common Stock, $100 par value.
The designations and the powers, preferences and rights, and the qualifications,
limitations and restrictions of the Class A Common Stock and the Class B Common
Stock are as follows:
1. Only the Class A Common Stock shall have voting rights. The holder of
record of each outstanding share of Class A Common Stock shall be entitled to
one vote on each matter submitted to a vote at a meeting of stockholders.
2. Except as hereinabove provided with respect to voting rights, neither
of the two classes of common stock shall be entitled to any preference or
priority over the other. No dividend shall be declared or paid unless at the
same rate per share on both classes of common stock at the same time, and in the
event of the dissolution, liquidation or winding up of the Corporation, the
shares of Class A Common Stock and Class B Common Stock shall be entitled to the
same amounts per share without preference or priority of one class over the
other.
3. The Corporation shall have a lien upon the shares of Class A Common
Stock and Class B Common Stock registered in the name of any stockholder and
upon any dividends payable on such shares, to secure the payment of any
indebtedness due to the Corporation from such stockholder. The Corporation shall
not be required to transfer upon its records the shares of Class A Common Stock
or Class B Common Stock of such stockholder or to pay any dividends declared on
any such shares until such indebtedness shall have been fully paid, and the
Corporation shall have the right to apply the dividends declared from time to
time upon the stock of such stockholder to the liquidation, in whole or in part,
of the said indebtedness. If the Corporation shall exercise its option as
hereinafter in these articles provided to repurchase shares of Class A Common
Stock or Class B Common Stock owned by a stockholder who is then indebted to the
Corporation, it shall have the right to offset the stockholder's indebtedness
against the purchase price of such shares.
4. The number of shares of Class A Common Stock which shall comprise a
unit of ownership shall be fixed from time to time by the Board of Directors or
in the By-Laws. No shares of Class B Common Stock shall be issued or sold except
to persons who are, at the time of such issuance, holders of shares of Class A
Common Stock.
5. No holder of any class of stock of the Corporation shall have any
preemptive or preferential right to subscribe to or purchase any shares of stock
of the Corporation or shares or securities of any kind, either convertible into
or evidencing the right to purchase any shares of stock of the Corporation,
other than such thereof, if any, as the Board of Directors in its discretion may
from time to time determine.
6. Whenever, for any reason, any stockholder shall desire to dispose of
any shares of Class A Common Stock or Class B Common Stock of the Corporation
(whether by sale, transfer, assignment, gift or in any other manner), or
whenever any stockholder shall die or shall suffer any other event by which any
of such shares are voluntarily or involuntarily transferred by operation of law
or otherwise, the Corporation shall have an option to purchase all shares of
Class A Common Stock and Class B Common Stock owned by such stockholder, at the
price, and upon the conditions, hereinafter stated. Such option may be exercised
by the Corporation at any time within ninety (90) days following the date upon
which the Corporation receives from the stockholder written notice of such
stockholder's desire to dispose of any of the shares owned by the stockholder or
within ninety (90) days following the receipt by the Corporation, from any party
in interest, of written notice of the death of the stockholder or other fact
giving rise to voluntary or involuntary transfer of any of the shares. The price
to be paid by the Corporation upon exercise of its option to purchase such
shares shall be an amount equal to the par value thereof; such purchase shall
proceed upon such other terms and conditions as may be specified in the By-Laws.
Any disposition or attempted disposition of the shares of Class A Common
Stock or Class B Common Stock of the Corporation, voluntary or involuntary, by
operation of law or otherwise, shall be null and void and no such disposition or
attempted disposition shall entitle any person to have any of said shares
transferred on the books of the Corporation or to claim or assert any of the
rights of a stockholder of the Corporation, unless the Corporation shall have
been afforded a proper opportunity to exercise its option for the purchase of
said shares as hereinbefore provided and shall have failed to exercise its
option within the time limited.
Nothing hereinbefore contained shall restrict the right of any stockholder:
(a) to pledge (or otherwise subject to a lien) any of the shares of Class A
Common Stock or Class B Common Stock of the Corporation in a bona fide
transaction as security for a debt or other obligation of the stockholder, or
affect the rights which the pledgee or lienholder would otherwise have with
respect to said shares; provided, however, that if the pledge or lien shall be
foreclosed and the stockholder shall cease to be the owner of said shares, such
foreclosure shall be deemed to be an involuntary transfer of the shares and the
Corporation shall thereupon have the option to purchase the shares hereinabove
provided which shall be exercisable within ninety (90) days after receipt of
written notice of the fact of foreclosure; or
(b) to sell or otherwise dispose of all or any part of the shares of Class
B Common Stock (but not of Class A Common Stock) to a person who is then a
holder of shares of Class A Common Stock of the Corporation.
Should the Corporation fail or decline to exercise its option and
disposition be consummated, the stock shall be subject to all and the same
rights and restrictions (including, without limitation, the option set forth
herein and any call or similar rights of the Corporation as may be set forth
herein, in the By-Laws or elsewhere) in the hands of the new holder as in the
hands of the former holder.
7. The Corporation may be obligated or have the option to purchase or
redeem its stock and stockholders may be obligated or have the right to sell
their stock to the Corporation at par value in such circumstances and upon terms
and conditions as may be specified in the By-Laws from time to time. Without
limiting the generality of the preceding sentence of this Paragraph 7 of ARTICLE
FOURTH or compelling inclusion of any provision in the By-Laws, such right or
obligation may be granted with respect to situations where the business
relationship of a stockholder and the Corporation terminates.
8. As used in these articles, the term "person" shall mean and include
any individual, group or association of individuals however organized,
corporation, and any other natural or artificial entity. The term "stockholder"
shall mean any person, so defined, who is a stockholder of the Corporation.
EXCERPT FROM THE BY-LAWS
ARTICLE VII
SECTION 6. REDEMPTION OF STOCK.
(a) TERMINATION REDEMPTION. Upon termination of a Member Agreement (as
referred to in Article VIII hereof) for any reason whatsoever, the stockholder
shall sell to the Corporation and the Corporation shall redeem from the
stockholder all of its stockholder's capital stock in the Corporation for the
par value thereof upon the terms and conditions set forth in section 7 of this
Article VII.
(b) OPTIONAL REDEMPTION.
(i) Whenever the Board of Directors shall by the affirmative vote of
two-thirds or more of the directors then in office decide that it is in the best
interests of the Corporation that any stockholder shall cease to be associated
with the Corporation in that capacity, the Corporation shall have the right,
upon written demand addressed to such stockholder at the address as shown on the
books of the Corporation, to purchase all (but not less than all) of such
stockholder's capital stock in the Corporation for the par value thereof upon
the terms and conditions set forth in section 7 of this Article VII.
(ii) The Corporation shall, in the discretion of management, have the
right to purchase, in cash at par value, all or any portion of outstanding
shares of capital stock of the Corporation which are in excess of the number of
shares required to be held by a stockholder or which are distributed as
non-qualified written notices of allocation. Upon the effective date of the
exercise of an option to purchase any stock redeemed pursuant to this section
6(b)(ii), the stock redeemed shall be deemed to be and shall be and become the
property of this Corporation; from and after such date all rights and privileges
incident to the ownership of the shares shall cease, except only the right to
receive the purchase price, without interest, and subject to the Corporation's
liens and right of setoff.
(c) NOTICE OF REPURCHASE RIGHTS. The right or obligation of purchase or
redemption hereby reserved to the Corporation may be stated in the subscription
agreement under which the Corporation's stock is sold, in the Member Agreement
and on any stock certificates.
(d) REPURCHASE RIGHTS NOT EXCLUSIVE. The right or obligation of purchase or
redemption provided for in this section 6 of Article VII of the By-Laws is in
addition to, and not in derogation of, the rights reserved to the Corporation by
the provisions of Article Fourth of the Certificate of Incorporation and any
other rights to repurchase, redeem or otherwise acquire its stock that the
Corporation may now have or ever obtain.
SECTION 7. MECHANICS, TERMS AND CONDITIONS OF REDEMPTION. Any purchase or
redemption of shares of stock of this Corporation made pursuant to section 6(a)
and 6(b)(i) of these By-Laws or the Certificate of Incorporation, unless
expressly provided otherwise, shall proceed as follows:
(a) TERMINATION OF RIGHTS AND PRIVILEGES AS STOCKHOLDER. Upon the effective
date of the termination of a Member Agreement or upon the date of exercise of
any option to repurchase or redeem stock under section 6(b)(i) or upon such
other date set by these By-Laws, the Certificate of Incorporation, or the Member
and this Corporation, whichever shall be appropriate in the circumstances, all
of this Corporation's stock owned by such stockholder (hereinafter referred to
as "Terminated Stockholder") shall be deemed to be and shall be and become the
property of this Corporation; from and after such date all rights and privileges
incident to the ownership of the shares (including but not limited to the right
to dividends thereon) shall cease, except only the right to receive the purchase
price (as hereinafter provided) plus a sum equal to any dividends declared but
unpaid at said date and accrued Patronage Dividends for the relevant year or
portion thereof (to be paid in the manner provided for payment of all Patronage
Dividends) all without interest and subject to the Corporation's liens and right
of setoff. The Terminated Stockholder shall promptly remit any certificates duly
endorsed in blank or with stock powers.
(b) PAYMENT OF REDEMPTION PRICE. Immediately upon receipt of properly
endorsed certificates representing all of a Terminated Stockholder's stock of
the Corporation, the Corporation shall remit the redemption price to the
Terminated Stockholder in the following manner:
(i) Cash equal to the par value of Terminated Stockholder's Class A
Common Stock reduced by the amount of any lien or setoff to which the
Corporation may be entitled;
(ii) Cash equal to the par value of that portion, if any, of
Terminated Stockholder's Class B Common Stock which has been designated by the
Corporation as "non-qualified" B Common Stock reduced by the amount of any lien
or setoff to which the Corporation may be entitled; and
(iii) A note in face amount equal to the par value of Terminated
Stockholder's remaining Class B Common Stock. The note shall be payable in five
(5) equal annual installments of principal, the first of which shall be due on
the December 31 next following termination of the Terminated Stockholder's
rights and privileges as a stockholder (as provided in section 7(a) of this
Article VII) and shall bear a fixed rate of interest, payable with the
installments of principal, from the date of the note at a rate equal to the
United States Treasury five (5) year notes plus one percent (1%), as determined
on the first business day of the calendar year in which termination occurs. The
note shall be dated as of the date upon which the Terminated Stockholder's
rights as a stockholder terminated (as provided in section 7(a) of this Article
VII) and shall be subject to any lien or right of setoff to which the
Corporation may be entitled.
(c) AVAILABILITY OF FUNDS. Notwithstanding anything to the contrary
expressed or implied herein, should the Board of Directors in its discretion
determine that the funds of the Corporation available for such purpose are
insufficient for immediate payment of all or any part of the redemption price in
light of the Corporation's legal or business requirements, or that immediate
payment of all or any part of the redemption price is otherwise not in the best
interests of the Corporation, the Corporation may delay (without interest) the
payment of all or any part of the redemption price (including the issuance of
any promissory note) until such time as the Board of Directors determines that
sufficient funds are available for such purpose and that it is otherwise in the
Corporation's best interests to recommence payments for such purpose, at which
time the Corporation shall pay to those entitled thereto, in the chronological
order in which such payments were delayed starting with those whose payment has
been longest delayed and continuing until sufficient funds are no longer
available, or through another equitable manner determined by the Board of
Directors, the unpaid redemption price in accordance with Section 7(b), except
that any promissory note shall be dated the date of its issuance.
(d) HARDSHIP. Notwithstanding the provisions of Paragraph 7(b) of this
Article VII, the Board of Directors in its discretion and with due regard for
the financial condition and requirements of the Corporation, may authorize and
cause payment in cash for all or part of the redemption price which would
otherwise be paid by a note if the Board of Directors determines that the
prescribed method of payment imposes an undue hardship upon the Terminated
Stockholder. The Board of Directors may implement this provision by delegating
authority to an officer or officers.
SECTION 8. LIEN ON STOCK AND NOTES. The Corporation shall have a lien on,
and a right of setoff against, any stock or notes, including those issued as
Patronage Dividend and against any cash portion of such Patronage Dividend which
is in excess of twenty percent (20%) of the overall patronage dividend payable
in any year for such indebtedness of the stockholder to the Corporation as may,
for whatever cause, exist. In the event that the Corporation initiates
proceedings to recover amounts due it by the stockholder, the Corporation shall
be entitled to the recovery of all associated costs, interest and reasonable
attorney's fees.
For value received, _________________ hereby sell, assign and transfer unto
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS)
________________________________________________________________________________
_________________________________________________________________________ Shares
of the Stock represented by the within Certificate and do hereby irrevocably
constitute and appoint ________________________________________________ attorney
to transfer the same on the books of the within-named Company, with full power
of substitution in the premises.
Dated ___________________________
In Presence of _________________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
A 43870