1
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
SUNBELT AUTOMOTIVE GROUP, INC.
ARTICLE I.
The name of the Corporation is: SUNBELT AUTOMOTIVE GROUP, INC.
ARTICLE II.
The street address and county of the Corporation's initial registered
office shall be at: 2150 Cobb Parkway, Smyrna, Georgia 30080. The initial
registered agent of the Corporation at such address shall be: Stephen C.
Whicker, Esq.
ARTICLE III.
The name and address of the incorporator are: Stephen C. Whicker, Esq.,
2150 Cobb Parkway, Smyrna, Cobb County, Georgia 30080.
ARTICLE IV.
The mailing address of the Corporation's initial principal office is:
2150 Cobb Parkway, Smyrna, Georgia 30080.
ARTICLE V.
The total number of shares of all classes which the Corporation has
authority to issue is 500,000,000, of which 450,000,000 shares shall be
designated as "Common Stock", with a par value of $0.001 per share, and
50,000,000 shares shall be designated as "Preferred Stock," with a par value of
$0.001 per share.
The designations and the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption of the shares of each class of stock are as
follows:
2
COMMON STOCK
Subject to all the rights of the Preferred Stock as expressly provided
herein, by law or by the Board of Directors pursuant to this Article V, the
Common Stock of the Corporation shall possess all such rights and privileges as
are afforded to capital stock by applicable law in the absence of any express
grant of rights or privileges in the Corporation's Articles of Incorporation,
including, but not limited to, the following rights and privileges:
(a) dividends may be declared and paid or set apart for payment
upon the Common Stock out of any assets or funds of the
Corporation legally available for the payment of dividends;
(b) the holders of Common Stock shall have the right to vote for
the election of directors and on all other matters requiring
shareholder action, each share being entitled to one vote; and
(c) upon the voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the net assets of the
Corporation available for distribution shall be distributed
pro rata to the holders of the Common Stock in accordance with
their respective rights and interests, and subject to the
rights of the holders of Preferred Stock.
PREFERRED STOCK
Subject to the provisions of any applicable law or of the Bylaws of the
Corporation, as from time to time amended, with respect to fixing the record
date for the determination of shareholders entitled to vote, and except as
otherwise provided by any applicable law or by the resolution or resolutions of
the Board of Directors providing for the issue of any series of Preferred Stock,
the holders of the Common Stock shall have and possess exclusive voting power
and rights for the election of directors and for all other purposes, with each
share being entitled to vote.
2
3
The Board of Directors is hereby expressly authorized to issue, at any
time and from time to time, shares of Preferred Stock in one or more series. The
number of shares within any such series shall be designated by the Board of
Directors in one or more resolutions, and the shares of each series so
designated shall have such preferences with respect to the Common Stock and
other series of Preferred Stock, and such other rights, restrictions or
limitations with respect to voting, dividends, conversion, exchange, redemption
and any other matters, as may be set forth in one or more resolutions adopted by
the Board of Directors. If and to the extent required by law, or as otherwise
resolved by the Board of Directors, Articles of Amendment setting forth any such
designation, preferences, rights, restrictions or limitations shall be filed
with the Georgia Secretary of State prior to the issuance of any shares of such
series.
The authority of the Board of Directors with respect to the
establishment of each series of Preferred Stock shall include, without
limitation, determination of the following matters which may vary between
series:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or
dates, and the relative rights of priority, if any, of
payments of dividends on shares of that series;
(c) Whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of
such voting rights;
(d) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including
provisions for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
(e) Whether the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable,
and the amount per share payable in case of redemption, which
amount may vary under different conditions;
3
4
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so,
the terms and amount of such sinking fund;
(g) The rights of shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding-up of the
Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
(h) Any other relative preferences, rights, restrictions or
limitations of that series, including but not limited to any
obligations of the Corporation to repurchase shares of that
series upon specified events.
ARTICLE VI.
A. The number of directors of the Corporation shall be not less than
three (3) and not more than fifteen (15) directors. The Board of Directors shall
be divided into three classes, as nearly equal in number as possible, with
respect to the first time for which they shall severally hold office. Each
Director of the First Class chosen shall hold office until the first annual
meeting of the shareholders following his or her election and until a successor
shall be elected and qualified, or until his or her earlier death, resignation,
incapacity to serve, or removal; each Director of the Second Class first chosen
shall hold office until the second annual meeting following his or her election
and until a successor shall be elected and qualified, or until his or her
earlier death, resignation, incapacity to serve, or removal; and Director of the
Third Class first chosen shall hold office until the third annual meeting
following his or her election and until a successor shall be elected and
qualified, or until his or her earlier death, resignation, incapacity to serve,
or removal. At each annual meeting of the shareholders held thereafter, the
successor to the class of Directors whose terms shall expire at that time shall
be elected to hold office until the third succeeding annual meeting of the
shareholders following their election, and until a successor shall be elected
and qualified, or until their earlier death, resignation, incapacity to serve,
or removals. Any increase or decrease in the number of Directors shall be so
apportioned among the classes as to make all classes authorized by the requisite
vote of the shareholders as nearly equal in number as possible.
4
5
B. Any vacancy in the Board of Directors resulting from the death,
resignation or retirement of a Director, or from any other cause other than
removal by the shareholders or increase in the authorized number of Directors,
shall be filled by a majority vote of the remaining Directors, though less than
a quorum, for a term corresponding to the unexpired term of his or her
predecessor in office.
C. Any vacancy in the Board of Directors occurring as a result of the
removal of a Director by the shareholders shall be filled by the shareholders,
or, if authorized by the shareholders, by a majority vote of the remaining
Directors, though less than a quorum, for a term corresponding to the unexpired
term of his or her predecessor in office.
ARTICLE VII.
At any meeting of the shareholders called for such purpose, any
Director may, by a vote of at least eighty percent (80%) of the shares of the
capital stock of the Corporation entitled to vote for the election of Directors,
be removed for any reason whatsoever, or may, by the vote of a majority of the
shares of capital stock of the Corporation entitled to vote for the election of
Directors be removed for any of the following reasons:
(a) appropriation by the Director, in violation of his or her
duties, of any business opportunity of the Corporation;
(b) acts or omissions of the Director, which involve intentional
misconduct or a knowing violation of laws;
(c) the types of liability of the Director set forth in Section
14-2-832 of the Georgia Business Corporation Code, as amended;
and
(d) any transaction from which the Director receives an improper
personal benefit.
ARTICLE VIII.
No Director shall have any personal liability to the Corporation or to
its shareholders for monetary damages for any action taken, or any failure to
take any action, as a Director by reason of
5
6
any act or omission occurring subsequent to the date when this provision becomes
effective, except that this provision shall not eliminate or limit the
liability of a Director described Section 14-2-202(b)(4)(A) through (D) of the
Georgia Business Corporation Code (the "Code"), as amended from time to time or
any successor statute thereto. Neither the amendment, nor repeal of this Article
VIII, nor the adoption of any provision of the Articles of Incorporation of the
Corporation inconsistent with this Article VIII, shall eliminate or reduce the
effect of this Article VIII in respect of any act or failure to act, or any
cause of action, suit or other claim that, but for this Article VIII, would
accrue or arise prior to any amendment, repeal or adoption of such an
inconsistent provision. If the Code is subsequently amended to provide for
further limitations on the personal liability of directors of corporations for
any action taken, or any failure to take action, as a director, then the
personal liability of the Directors of the Corporation shall be so further
limited to the greatest extent pemmitted by the Code.
ARTICLE IX.
A. Each person who is or was a Director or officer of the Corporation,
and each person who, while a Director or officer of the Corporation, is or was
serving at the Corporation's request as a Director, officer, partner, trustee,
employee, or agent of another domestic or foreign corporation, partnership,
joint venture, trust, employee benefit plan, or other entity, shall be
indemnified by the Corporation against any liability (including attorneys' fees)
which is allowed to be paid or reimbursed by the Corporation under the laws of
the State of Georgia and which is actually and reasonably incurred in connection
with any proceeding in which such person may be involved by reason of his or her
being or having been a Director or officer of this Corporation or of such other
entity. Such indemnification shall be made only in accordance with the laws of
the State of Georgia and subject to the conditions prescribed therein.
B. In any instance where the laws of the State of Georgia permit
indemnification to be provided to such a Director or officer only on a
detemmination with respect to a specific proceeding that certain specified
standards of conduct have been met, upon application for indemnification by
6
7
any such person the Corporation shall promptly cause such determination to be
made in a manner consistent with any requirements of the Code.
C. As a condition to any such right of indemnification, the Corporation
may require that it be permitted to participate in the defense of any such
proceeding through legal counsel designated by the Corporation and at the
expense of the Corporation.
D. The Corporation may purchase and maintain insurance on behalf of an
individual who is a Director, officer, employee, or agent of the Corporation or
who, while a Director, officer, employee, or agent of the Corporation, serves at
the Corporation's request as a Director, officer, partner, trustee, employee, or
agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan or other entity, against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a Director, officer, employee or agent, whether or not the Corporation would
have the power to indemnify or advance expenses to him or her against the same
liability under Part 5 of the Code. If any expenses or other amounts are paid by
way of indemnification, other than by court order, action by shareholders or by
an insurance carrier, the Corporation shall provide notice of such payment to
the shareholders in accordance with any applicable provision of the laws of the
State of Georgia.
E. For the purposes of this Article IX, the terms "Director,"
"officer," "party," "proceeding," "liability," "expenses" and other terms used
in this Article IX shall have such meanings, if any, as are prescribed in
Section 14-2-850 of the Code or any successor statute thereto. Nothing in this
Article IX shall be construed as limited the applicability and scope of Georgia
law with respect to indemnification, reimbursement of expenses and advances for
expenses of any persons.
ARTICLE X.
Special meetings of the shareholders of the Corporation may be called
only by the Chief Executive Officer of the Corporation, the Chairman of the
Board of Directors, or by a majority vote of the Board of Directors.
7
8
ARTICLE XI.
An affirmative vote of the holders of at least two-thirds of the voting
power represented by all outstanding Common Stock of the Corporation shall be
required to approve any amendments to these Articles of Incorporation regarding
(i) the classification of the Board of Directors; (ii) indemnification of
Directors and officers; (iii) limitation on liability of Directors; (iv)
management of the Corporation by the Board of Directors and amendment of the
Corporation's bylaws; (v) persons entitled to call a special meeting of the
shareholders; and (vi) provisions authorizing the issuance of Preferred Stock of
the Corporation.
IN WITNESS WHEREOF, the undersigned incorporator has executed these
Articles of Incorporation.
This 17th day of December, 1997.
/s/ Stephen C. Whicker
----------------------------------
Stephen C. Whicker, Incorporator
2150 Cobb Parkway
Smyrna, Georgia 30080
8