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Exhibit 3.2
Exhibit A
ARTICLES OF AMENDMENT
TO THE RESTATED CHARTER
OF THE ARNOLD PALMER GOLF COMPANY
Pursuant to the provisions of Section 48-20-106 and 48-16-102
of the Tennessee Business Corporation Act, the undersigned corporation adopts
the following Articles of Amendment to its Restated Charter:
1. The name of the corporation is:
The Arnold Palmer Golf Company
2. The text of the amendment adopted is:
A new Paragraph 6.C. shall be added to Part I of the Restated
Charter, which shall read as follows:
Series NB Preferred Stock. The corporation is authorized to
issue 833,333 shares of "Series NB Preferred Stock," par value
$.50 per share, with the following powers, preferences,
rights, qualifications, limitations and restrictions:
1. Conversion. Each outstanding share
of Series NB Preferred Stock shall be convertible at any time
into one share (the "Conversion Number") of common stock, $.50
par value, of the corporation (the "Common Stock"). Each
conversion of shares of Series NB Preferred Stock into shares
of Common Stock will be effected by the surrender of the
certificate or certificates representing the shares to be
converted, at the principal office of the corporation at any
time during normal business hours, together with a written
notice by the holder of such shares stating the number of
shares of Series NB Preferred Stock that are being converted
into shares of Common Stock. Upon receipt of such notice by
the corporation, the rights of any such holder with respect to
the converted Series NB Preferred Stock shall cease and the
holder will be deemed to have become the holder of record of
the shares of Common Stock issuable upon conversion.
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At such time, the corporation will issue and deliver, in
accordance with the surrendering holder's instructions, the
certificate or certificates for the Common Stock issuable upon
conversion and a certificate representing any shares of Series
NB Preferred Stock that were represented by the certificate or
certificates delivered to the corporation in connection with
such conversion but that were not converted. The issuance of
certificates for the Common Stock upon conversion will be made
without charge to the holder or holders of such shares for any
issuance tax (except stock transfer taxes) in respect thereof
or other costs incurred by the corporation in connection with
such conversion. In the event the corporation shall at any
time after the date the shares of Series NB Preferred stock
are issued (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding shares
of Common Stock, or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, then in each
such case, the Conversion Number in effect immediately after
such event shall be the Conversion Number in effect
immediately prior to such event multiplied by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event, and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
2. Dividends.
(a) The holders of the Series NB
Preferred Stock shall be entitled to receive, in preference to
the holders of Common Stock and any other junior stock,
cumulative dividends equal to thirty percent (30%) of the
earnings realized by the corporation from the corporation's
holdings of Series D Preferred Stock of Nevada Bob's Holdings,
Inc. (the "Series D Preferred Stock"). The corporation's
earnings from the Series D Preferred Stock shall include
dividends received by the corporation on the Series D
Preferred Stock, amounts received in excess of $5,000,000 on
the redemption of the Series D Preferred Stock, and any gain
realized by the corporation on the common stock of Nevada
Bob's Holdings, Inc. ("Nevada Bob's") (assuming a
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$5,000,000 cost basis) in the event the Series D Preferred
Stock has been converted into common stock of Nevada Bob's.
(b) Cumulative dividends on the
Series NB Preferred Stock shall be payable upon (i) conversion
of the Series NB Preferred Stock to Common Stock (payable at
the option of the corporation in cash, Common Stock (valued at
the average closing price for the 30 trading days immediately
prior to payment as reported on the National Association of
Securities Dealers Automated Quotation System or such other
national securities exchange on which the Common Stock is
traded, and if no such public trading market exists for the
Common Stock, the valuation of the Common Stock shall be based
upon the written opinion of an investment banking firm
selected by the corporation's board of directors) or Series D
Preferred Stock or common stock of Nevada Bob's in the case of
a conversion of the Series D Preferred Stock (valued as
determined by the corporation's board of directors)) or (ii) a
redemption of the Series NB Preferred Stock as provided in
paragraph 3 below.
3. Redemption. The corporation shall be
required to redeem the Series NB Preferred Stock on a pro rata
basis upon (a) a redemption by Nevada Bob's of the Series D
Preferred Stock, or (b) upon a sale by the corporation of its
holdings of Series D Preferred Stock or common stock of Nevada
Bob's in the case of a conversion of the Series D Preferred
Stock. The Series NB Preferred Stock shall be redeemed at a
price equal to $5,000,000 plus cumulative dividends (as
determined in accordance with paragraph 2 hereof) on the
Series NB Preferred Stock.
4. Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the corporation, the holders of Series NB
Preferred Stock shall be entitled to receive in full out of
the assets of the corporation, including its capital, before
any amount shall be paid or distributed among the holders of
shares of Common Stock or any other junior stock, $5,000,000
plus cumulative dividends (as determined in accordance with
paragraph 2
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hereof) of the Series NB Preferred Stock (the "Series NB
Liquidation Preference"). In the event the assets of the
corporation available therefor are insufficient to permit the
payment in full of the Series NB Liquidation Preference, then
such assets shall be distributed ratably to the holders of the
Series NB Preferred Stock. After payment to the holders of
Series NB Preferred Stock of the Series NB Liquidation
Preference, the holders of Series NB Preferred Stock shall
have no right or claim to any of the remaining assets of the
corporation.
5. Voting Rights. The holders of shares
of Series NB Preferred Stock shall have the following voting
rights:
(a) Each share of Series NB
Preferred Stock shall entitle the holder thereof to one vote
on all matters submitted to a vote of the shareholders of the
corporation; and
(b) Except as otherwise provided
herein, by law or in the Restated Charter, the holders of
shares of Series NB Preferred Stock and the holders of shares
of Common Stock shall vote together as one class on all
matters submitted to a vote of shareholders of the
corporation.
6. Registration Rights.
(a) Corporation Registration.
(i) Whenever the corporation
proposes to register any of its Shares, either for
its own account or the account of a security holder
or holders, under the Securities Act of 1933 (the
"Securities Act"), other than a registration on Form
S-8 relating to employee benefit plans or in
connection with a business combination transaction on
Form S-8 or S-4 (or any successor to Form S-8 or
S-4), and the registration form to be used may be
used for the registration of shares of Common Stock
received by the former holder of Series NB Preferred
Stock (the "Shareholder") upon a conversion of the
Series NB Preferred Stock (the "Shares"), the
corporation will give
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prompt written notice to the Shareholder of its
intention to effect such a registration and will
include in such registration (and any related
qualification under blue sky laws or other
compliance) all the Shares with respect to which the
corporation has received a written request for
inclusion therein within 20 days after receipt of the
corporation's notice. The Shareholder shall be
entitled to participate in an unlimited number of
such registrations.
(ii) If the registration of which the
corporation gives notice is for a registered public
offering involving an underwriting, the corporation
shall so advise the Shareholder as part of the
written notice given pursuant to paragraph 6(a)(i).
In such event, the right of the Shareholder to
registration pursuant to this paragraph 6(a) shall be
conditioned upon its participation in such
underwriting and the inclusion of the Shares in the
underwriting to the extent provided herein. When
proposing to distribute its Shares through such
underwriting, the Shareholder shall (together with
the corporation and any and all other shareholders
distributing their securities through such
underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected
for such underwriting by the corporation.
Notwithstanding any other provision of this paragraph
6, if the managing underwriter determines that
marketing factors require a limitation of the number
of shares to be underwritten, it shall so advise the
Shareholder in writing specifying the marketing
factors imposing a limitation on the number of shares
to be underwritten, and the managing underwriter may
limit the Shares to be included in such registration
on a pro rata basis with all other securities to be
included in such registration other than those being
registered for the corporation's own account.
(iii) The corporation shall have the
right to terminate or withdraw any registration
initiated by it under this paragraph
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6(a) prior to the effectiveness of such registration
whether or not the Shareholder has elected to include
any Shares in such registration. If the Shareholder
disapproves of the final terms of any underwriting
undertaken pursuant to this paragraph 6(a), the
Shareholder may elect to withdraw therefrom by
written notice to the corporation and the managing
underwriter. If the Shareholder so elects, the
corporation shall either (a) withdraw the Shares from
registration, or (b) substitute newly issued shares
of the corporation for the Shares in such
registration.
(b) Demand Registration. Following
a conversion of the Series NB Preferred Stock into Common
Stock, the Shareholder shall have the right to demand that the
corporation register the Shares under the Securities Act. Upon
receipt of a written notice of demand from the Shareholder
specifying the number of Shares to be registered, the
corporation will use its best efforts to effect the
registration of the Shares and to cause the Shares to be
qualified in such jurisdictions as the Shareholder may
reasonably request; provided, however, that the corporation
shall not be required to effect more than one registration
pursuant to this paragraph 6(b). The substantive provisions of
paragraph 6(a)(ii) shall be applicable to the registration
initiated under this paragraph 6(b).
(c) Registration Procedures. In the
case of each registration, qualification or compliance
effected by the corporation pursuant to this paragraph 6, the
corporation shall keep the Shareholder advised in writing as
to the initiation of each registration, qualification and
compliance and as to the completion thereof. At its expense,
the corporation shall:
(i) prepare and file with the
Securities and Exchange Commission (the "SEC") a
registration statement with respect to such
securities and use its best efforts to cause such
registration statement to become and remain effective
for at least three hundred sixty five (365) days,
provided that no such registration shall constitute a
shelf regis-
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tration under Rule 415 promulgated by the SEC under
the Securities Act;
(ii) enter into a written
underwriting agreement in customary form and
substance reasonably satisfactory to the corporation,
the Shareholder and the managing underwriter or
underwriters of the public offering of such
securities, if the offering is to be underwritten in
whole or in part;
(iii) furnish to the Shareholder and
to the underwriters of the securities being
registered such reasonable number of copies of the
registration statement, preliminary prospectus, final
prospectus and such other documents as such
underwriters may reasonably request in order to
facilitate the public offering of such securities;
(iv) use its best efforts to register
or qualify the securities covered by such
registration statement under such state securities or
blue sky laws of such jurisdiction as the Shareholder
may reasonably request within ten (10) days prior to
the original filing of such registration statement,
except that the corporation shall not for any purpose
be required to execute a general consent to service
of process or to qualify to do business as a foreign
corporation in any jurisdiction where it is not so
qualified;
(v) notify the Shareholder
promptly after it shall receive notice thereof of the
time when such registration statement has become
effective or a supplement to any prospectus forming a
part of such registration statement has been filed;
(vi) notify the Shareholder promptly
of any request by the SEC for the amending or
supplementing of such registration statement or
prospectus or for additional information;
(vii) prepare and file with the SEC
promptly upon the request of the Share-
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holder any amendments or supplements to such
registration statement or prospectus which, in the
reasonable opinion of counsel for the Shareholder, is
required under the Securities Act or the rules and
regulations thereunder in connection with the
distribution of the Shares by the Shareholder;
(viii) prepare and promptly file with
the SEC, and promptly notify the Shareholder of the
filing of, any such amendments or supplements to such
registration statement or prospectus as may be
necessary to correct any statements or omissions if,
at the time when a prospectus relating to such
securities is required to be delivered under the
Securities Act, any event has occurred as the result
of which any such prospectus or any other prospectus
as then in effect would include an untrue statement
of a material fact or omit to state any material fact
necessary to make the statements therein not
misleading in light of the circumstances in which
they were made;
(ix) in case the Shareholder or any
underwriter for the Shareholder is required to
deliver a prospectus at a time when the prospectus
then in effect may no longer be used under the
Securities Act, prepare promptly upon request such
amendment or amendments to such registration
statement and such prospectuses as may be necessary
to permit compliance with the requirements of the
Securities Act;
(x) advise the Shareholder
promptly after it shall receive notice or obtain
knowledge thereof of the issuance of any stop order
by the SEC suspending the effectiveness of such
registration statement or the initiation or
threatening of any proceeding for that purpose and
promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such
stop order should be issued; and
(xi) at the request of the
Shareholder, furnish on the effective date of
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the registration statement and, if such registration
includes an underwritten public offering at the
closing provided for in the underwriting agreement,
(i) an opinion, dated each such date, of the counsel
representing the corporation for the purposes of such
registration, addressed to the underwriters, if any,
and to the Shareholder, covering such matters with
respect to the registration statement, the prospectus
and each amendment or supplement thereto, proceedings
under state and federal securities laws, other
matters relating to the corporation, the securities
being registered and the offer and sale of such
securities as are customarily the subject of opinions
of issuer's counsel provided to underwriters in
underwritten public offerings; and (ii) use its best
efforts to obtain a letter dated each such date, from
the independent public accountants of the
corporation, to the extent that such accountants are
willing to provide such a letter, addressed to the
underwriters, if any, and to the Shareholder, stating
that they are independent public accountants within
the meaning of the Securities Act and that in the
opinion of such accountants the financial statements
and other financial data of the corporation included
in the registration statement or the prospectus or
any amendment or supplement thereto comply in all
material respects with the applicable accounting
requirements of the Securities Act, and additionally
covering such other financial matters, including
information as to the period ending not more than
five (5) business days prior to the date of such
letter with respect to the registration statement and
prospectus, as the underwriters or the Shareholder
may reasonably request.
(d) Expenses of Registration. All
expenses, except Selling Expenses (as defined below), incurred
by the corporation in complying with this paragraph 6,
including, without limitation, all registration, qualification
and filing fees, printing expenses, courier and shipping
charges, escrow fees, fees and disbursements of counsel for
the corporation, blue sky fees and
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expenses and the expense of any special audits incident to or
required by any such registration, shall be borne by the
corporation. All Selling Expenses relating to Shares
registered on behalf of the Shareholder pursuant to this
paragraph 6 shall be borne by the Shareholder. "Selling
Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the Shares
registered by the Shareholder and all fees and disbursements
of counsel for the Shareholder.
3. The amendment was duly adopted by the Board of
Directors of the corporation on August 16, 1996. Shareholder approval of the
amendment was not required.
DATED: August 16, 1996 THE ARNOLD PALMER GOLF COMPANY
By: /s/ George H. Nichols
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George H. Nichols
President and Chief
Operating Officer
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