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Exhibit 3.1
C-0066792
FILED
2:26 PM
MAY 12 1998
EFFECTIVE_________________
ELAINE F MARSHALL
SECRETARY OF STATE
NORTH CAROLINA
ARTICLES OF RESTATEMENT
OF
THE J.H. HEAFNER COMPANY, INC.
Pursuant to Section 55-10-07 of the General Statutes of North
Carolina, the undersigned corporation hereby submits the following for the
purpose of amending and restating its Articles of Incorporation:
1. The name of the Corporation is The J.H. Heafner Company, Inc.
2. The text of the Second Amended and Restated Articles of
Incorporation is attached hereto.
3. These Second Amended and Restated Articles of Incorporation
contain amendments requiring approval by the holders of the Corporation's common
stock, and such approval was obtained as required by Chapter 55 of the General
Statutes of North Carolina.
IN WITNESS WHEREOF, this statement is signed by the Corporation this
11 day of May, 1998.
THE J.H. HEAFNER COMPANY, INC.
By: /s/ WILLIAM H. GAITHER
----------------------------------
William H. Gaither
President and Chief Executive Officer
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THE J. H. HEAFNER COMPANY, INC.
SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION
These Second Amended and Restated Articles of Incorporation of The
J. H. Heafner Company, Inc. (the "Corporation") have been duly adopted by its
board of directors (the "Board of Directors") and its stockholders in accordance
with Sections 55-10-03 and 55-10-07 of the North Carolina Business Corporation
Act (as the same may amended, supplemented or repealed from time to time, the
"Act"). The original Articles of Incorporation of the Corporation were filed
with the Secretary of State of the State of North Carolina on February 27, 1962,
were last amended on May 2, 1997 and are hereby amended and restated in their
entirety as follows:
ARTICLE 1. CORPORATE NAME. The name of the Corporation is The J. H.
Heafner Company, Inc.
ARTICLE 2. REGISTERED AGENT. The address, including street, number,
city, and county, of the registered office of the Corporation in the State of
North Carolina is 814 East Main Street in the Town of Lincolnton, County of
Lincoln, and the name of the registered agent of the Corporation in the State of
North Carolina at such address is William H. Gaither.
ARTICLE 3. PURPOSE. The purpose of the Corporation is to conduct any
lawful business, to promote any lawful purpose, and to engage in any lawful act
or activity for which a corporation may be organized under the Act.
ARTICLE 4. CAPITAL STOCK.
Section 4.1. Shares Authorized. The total number of shares of
capital stock which the Corporation shall have authority to issue is (i)
30,000,000 shares of Common Stock, par value of $.01 per share (the "Common
Stock"), and (ii) 11,500 shares of Preferred Stock with a par value of $.01 per
share (the "Preferred Stock").
Section 4.2. Common Stock. The Common Stock shall have such rights,
powers and privileges as provided in these Articles, in any amendment to these
Articles and under applicable law. Of the 30,000,000 shares of Common Stock
authorized for issuance by the Corporation, 10,000,000 shall initially be
designated Class A Common Stock (the "Class A Common Stock") and 20,000,000
shall initially be designated Class B Common Stock (the "Class B Common Stock").
Section 4.3. Preferred Stock. The Preferred Stock shall have such
voting powers, designations, preferences, such other relative, participating,
optional and other special rights, and such qualifications, limitations and
restrictions as provided in these Articles and in any amendment to these
Articles. Of the 11,500 shares of Preferred Stock authorized for issuance by the
Corporation, 7,000 shares shall initially be designated Series A Cumulative
Redeemable Preferred Stock (the "Series A Preferred Stock") and 4,500 shares
shall initially be designated Series B Cumulative Redeemable Preferred Stock
(the "Series B Preferred Stock" and, together with the Series A Preferred Stock,
the "Kelly Preferred Stock"). The stated value of the Series A Preferred Stock
(the "Series A Liquidation Preference") shall be $1,000.00 per share. The stated
value of the Series B Preferred Stock (the "Series B Liquidation Preference")
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shall initially be $1,000.00 per share and shall be adjusted from time to time
as provided in Section 6.3.
Section 4.4. Rank of Capital Stock. With respect to dividend rights
and other rights upon liquidation, dissolution or winding up of the Corporation,
(i) the Series A Preferred Stock and the Series B Preferred Stock shall rank on
a parity with each other and senior to the Common Stock and (ii) the Class A
Common Stock and the Class B Common Stock shall rank on a parity with each
other. Other classes or series of capital stock may, subject to the provisions
of these Articles and applicable law, be authorized by the Board of Directors
that rank (as to payment of dividends or distribution of assets upon
liquidation, dissolution or winding up) senior to ("Senior Stock"), on a parity
with ("Parity Stock") or junior to ("Junior Stock") other classes or series of
capital stock.
Section 4.5. No Preemptive Rights. No holder of shares of capital
stock of the Corporation shall have preemptive rights to acquire unissued shares
of capital stock of the Corporation under these Articles.
Section 4.6. Reclassification. Upon the effectiveness of these
Articles, all shares of Common Stock outstanding immediately prior to the
effectiveness of these Articles shall be automatically reclassified as Class A
Common Stock.
ARTICLE 5. COMMON STOCK.
Section 5.1. Voting Rights. (a) Each outstanding share of Class A
Common Stock shall be entitled to vote on each matter on which the stockholders
of the Corporation shall be entitled to vote, and each holder of Class A Common
Stock shall be entitled to twenty votes for each share of such stock held by
such holder.
(b) Each outstanding share of Class B Common Stock shall be entitled
to vote on each matter on which the stockholders of the Corporation shall be
entitled to vote, and each holder of Class B Common Stock shall be entitled to
one vote for each share of such stock held by such holder.
(c) Except as otherwise provided by the Act, the holders of Class A
Common Stock and the holders of Class B Common Stock shall vote together as a
single class on all matters on which the stockholders of the Corporation shall
be entitled to vote.
Section 5.2. Dividends and Distributions. The holders of shares of
Class A Common Stock and the holders of Class B Common Stock shall be entitled
to receive dividends or other distributions, which must be identical for each of
the Class A Common Stock and the Class B Common Stock, out of the assets of the
Corporation legally available therefor when, as and if declared by the Board of
Directors.
Section 5.3. Liquidation, Dissolution or Winding Up. In the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, holders of Common Stock shall be entitled to share ratably in the
net assets of the Corporation remaining after payment or provision for payment
of the debts and liabilities of the Corporation and all amounts payable to
holders of Senior Stock.
Section 5.4. Automatic Conversion of Class B Stock. Each share of
Class B Common Stock shall automatically convert into one share of Class A
Common Stock without the requirement of any further action on the part of the
Corporation or its stockholders upon the earliest to occur of (i) an initial
public offering of the Class A Common Stock in connection with
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a registration of the Class A Common Stock under the Securities Act of 1933, as
amended, (ii) the occurrence of any condition or event which results in the
acceleration of the maturity of the indebtedness evidenced by the Debt Documents
(as defined below in Section 6.6), and (iii) an order for relief under Title 11
of the United States Code is entered against the Company.
Section 5.6. Other Rights. Except as otherwise required by the Act
or as otherwise provided in these Articles, each share of Class A Common Stock
and each share of Class B Common Stock shall have identical powers, rights and
privileges.
ARTICLE 6. KELLY PREFERRED STOCK. The Kelly Preferred Stock shall
have the following voting powers, preferences and other rights, qualifications,
limitations and restrictions:
Section 6.1. Series A Dividends and Distributions. (a) Holders of
shares of Series A Preferred Stock, in preference to the holders of shares of
Common Stock and any shares of other capital stock of the Corporation other than
shares of Parity Stock or Senior Stock with respect to the Series A Preferred
Stock, shall be entitled to receive, when, as and if declared by the Board of
Directors, out of the assets of the Corporation legally available therefor,
cumulative cash dividends (the "4% Series A Dividends") on the Series A
Liquidation Preference of such shares at an annual rate of 4.0%; provided that,
if as of December 31, 1997 (i) the Corporation and its subsidiaries are not
ordering all of their respective requirements of "Winston" brand tires from The
Kelly-Springfield Tire Company, a division of The Goodyear Tire and Rubber
Company (together with its affiliates, "Kelly-Springfield"), and (ii)
Kelly-Springfield is otherwise ready, willing and able to supply the Corporation
and its subsidiaries with such "Winston" brand tires in accordance with the
terms set forth in the Supply Agreement (as defined below in Section 6.5(c)),
then, beginning immediately thereafter and continuing until such time as the
earlier of (1) the Corporation and its affiliates are ordering all of such
"Winston" brand tires from Kelly-Springfield and (2) the Kelly Preferred Stock
has been redeemed in full, the annual rate of the 4% Series A Dividends shall be
at the greater of (x) 4% and (y) 120% of the Prime Rate (as defined below in
Section 6.1(b)) (the "Adjusted Series A Dividend Rate"). The 4% Series A
Dividends shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months, and shall accrue and be payable, in immediately available
funds, due on the last Business Day of each calendar month (each a "4% Dividend
Monthly Payment Date"). Payment of 4% Series A Dividends on shares of Series A
Preferred Stock shall commence on the first 4% Dividend Monthly Payment Date
following the date of original issue of such shares (the "Series A Issue Date").
The first payment of 4% Series A Dividends on such shares shall be in an amount
equal to the product of (i) the quotient obtained by dividing (1) the product of
the Series A Liquidation Preference of such shares and 4.0% by (2) 12 and (ii)
the quotient obtained by dividing (x) the number of days from and including the
Series A Issue Date up to and excluding the initial 4% Dividend Monthly Payment
Date by (y) 30. If holders of shares of Series A Preferred Stock are entitled to
receive 4% Series A Dividends on a date other than a 4% Dividend Monthly Payment
Date (a "4% Dividend Special Payment Date"), such payment shall be in an amount
equal to the product of (i) the quotient obtained by dividing (1) the product of
the Series A Liquidation Preference of such shares and 4.0% or the Adjusted
Series A Dividend Rate, as applicable, by (2) 12 and (ii) the quotient obtained
by dividing (x) the number of days from and including the date of such
immediately preceding 4% Dividend Monthly Payment Date up to and excluding the
4% Dividend Special Payment Date by (y) 30. All other payments of 4% Series A
Dividends shall accrue from and including the immediately preceding 4% Dividend
Monthly Payment Date or 4% Dividend Special Payment Date, as applicable, to but
excluding the following 4% Dividend Monthly Payment Date or 4% Dividend Special
Payment Date, as applicable. "Business Day" means any day other than a Saturday,
Sunday or other day on which banks in Atlanta, Georgia are authorized to close.
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(b) In addition to the 4% Series A Dividends, holders of Series A
Preferred Stock, in preference to the holders of shares of Common Stock and any
shares of other capital stock of the Corporation other than shares of Parity
Stock or Senior Stock with respect to the Series A Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
the assets of the Corporation legally available therefor, cumulative cash
dividends (the "Series A Additional Dividends" and, together with the 4% Series
A Dividends, the "Series A Dividends") in an amount equal to the product of the
Series A Liquidation Preference of such shares and the Applicable Rate (as
defined below). The Series A Additional Dividends shall accrue and be payable in
immediately available funds on the last Business Day of January of each year
(each an "Additional Dividend Payment Date"), with the first such Series A
Additional Dividend to accrue and be payable on the last Business Day of January
1999; provided that, if in any calendar year immediately preceding an Additional
Dividend Payment Date a 4% Series A Dividend accrues and becomes payable at the
Adjusted Series A Dividend Rate, the amount of the Series A Additional Dividend
that accrues and becomes payable on such Additional Dividend Payment Date shall
be reduced by an amount equal to the excess, if any, of (x) the aggregate amount
of the 4% Series A Dividends that accrued and became payable in such calendar
year over (y) the aggregate amount of such Series A Dividends that would have
accrued and become payable in such calendar year if the Adjusted Series A
Dividend Rate had not applied in such calendar year. The "Applicable Rate" for
determining the amount of the Series A Additional Dividend for each Additional
Dividend Payment Date shall be the percentage rate set forth opposite such date
(and corresponding to the applicable number of Units Purchased (as defined
below)) set forth below:
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Additional Dividend
Payment Date Units Purchased Applicable Rate
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January 1999 Less than 1,000,000 Standard Rate
1,000,000-1,099,999 4.0
1,100,000-1,199,999 3.0
1,200,000-1,299,999 2.0
1,300,000-1,399,999 1.0
1,400,000 or more 0.0
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January 2000 Less than 1,100,000 Standard Rate
1,100,000-1,199,999 4.0
1,200,000-1,299,999 3.0
1,300,000-1,399,999 2.0
1,400,000-1,499,999 1.0
1,500,000 or more 0.0
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January 2001 Less than 1,144,000 Standard Rate
1,144,001-1,247,999 4.0
1,248,000-1,351,999 3.0
1,352,000-1,455,999 2.0
1,456,000-1,559,999 1.0
1,560,000 or more 0.0
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------------------------------------------------------------------
Additional Dividend
Payment Date Units Purchased Applicable Rate
------------------------------------------------------------------
January 2002 Less than 1,189,760 Standard Rate
1,189,761-1,297,919 4.0
1,297,920-1,406,079 3.0
1,406,080-1,514,239 2.0
1,514,240-1,622,399 1.0
1,622,400 or more 0.0
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January 2003 Less than 1,237,350 Standard Rate
1,237,351-1,349,836 4.0
1,349,837-1,462,322 3.0
1,462,323-1,574,809 2.0
1,574,810-1,687,295 1.0
1,687,296 or more 0.0
------------------------------------------------------------------
January 2004 Less than 1,286,844 Standard Rate
1,286,845-1,403,829 4.0
1,403,830-1,520,815 3.0
1,520,816-1,637,801 2.0
1,637,802-1,754,787 1.0
1,754,788 or more 0.0
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January 2005 Less than 1,338,318 Standard Rate
1,338,319-1,459,982 4.0
1,459,983-1,581,648 3.0
1,581,649-1,703,313 2.0
1,703,314-1,824,978 1.0
1,824,979 or more 0.0
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January 2006 Less than 1,391,851 Standard Rate
1,391,852-1,518,381 4.0
1,518,382-1,644,914 3.0
1,644,915-1,771,446 2.0
1,771,447-1,897,977 1.0
1,897,978 or more 0.0
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January 2007 Less than 1,447,525 Standard Rate
1,447,526-1,579,116 4.0
1,579,117-1,710,711 3.0
1,710,712-1,842,304 2.0
1,842,305-1,973,896 1.0
1,973,897 or more 0.0
------------------------------------------------------------------
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------------------------------------------------------------------
Additional Dividend
Payment Date Units Purchased Applicable Rate
------------------------------------------------------------------
January 2008 Less than 1,505,426 Standard Rate
1,505,427-1,642,281 4.0
1,642,282-1,779,139 3.0
1,779,140-1,915,996 2.0
1,915,997-2,052,852 1.0
2,052,853 or more 0.0
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provided that, in no event shall the Applicable Rate be higher than the Standard
Rate. "Standard Rate" means the excess, if any, of (x) the Prime Rate over (y)
4%. "Prime Rate" means the rate of interest publicly announced from time to time
by BankBoston, N.A., at its head office at 100 Federal Street, Boston,
Massachusetts as its "base" rate as in effect on the Business Day immediately
preceding the applicable dividend payment date. "Units Purchased" means, for any
Additional Dividend Payment Date, the net number of tires (other than "Monarch"
brand tires) purchased by the Corporation and its subsidiaries from
Kelly-Springfield during the calendar year immediately preceding such Additional
Dividend Payment Date, which number of tires shall not include an amount equal
to the sum of (x) 250,000 and (y) an amount equal to the number of premium tires
purchased by the Corporation and its affiliates from Kelly-Springfield in 1996.
(c) If, as of the close of business on any 4% Dividend Monthly
Payment Date, there is a 4% Series A Dividend Arrearage (as hereinafter
defined), an additional dividend (the "4% Series A Makewhole Dividend") shall
accrue on each share of the Series A Preferred Stock for the period from and
including such 4% Dividend Monthly Payment Date to the earlier of (x) the date
on which such 4% Series A Dividend Arrearage is paid in full and (y) the next
succeeding 4% Dividend Monthly Payment Date, in an amount equal to the product
of (i) the Prime Rate (calculated for such period in accordance with Section
6.1(a)) and (ii) the amount of such 4% Series A Dividend Arrearage as of such 4%
Dividend Monthly Payment Date. "4% Series A Dividend Arrearage" means, with
respect to each share of Series A Preferred Stock, as of any 4% Dividend Monthly
Payment Date, the excess, if any, of (i) all 4% Series A Dividends accrued to
(but excluding) such 4% Dividend Monthly Payment Date on such share over (ii)
all 4% Series A Dividends actually paid with respect to such share on or before
the close of business on such 4% Dividend Monthly Payment Date.
(d) If, as of the close of business on any Additional Dividend
Payment Date, there is a Series A Additional Dividend Arrearage (as hereinafter
defined), an additional dividend (the "Additional Series A Makewhole Dividend")
shall accrue on each share of the Series A Preferred Stock for the period from
and including such Additional Dividend Payment Date to the earlier of (x) the
date on which such Additional Series A Dividend Arrearage is paid in full and
(y) the next succeeding Additional Dividend Payment Date, in an amount equal to
the product of (i) the Prime Rate and (ii) the amount of such Additional Series
A Dividend Arrearage as of such Additional Dividend Payment Date. "Additional
Series A Dividend Arrearage" means, with respect to each share of Series A
Preferred Stock, as of any Additional Dividend Payment Date, the excess, if any,
of (i) all Series A Additional Dividends accrued to (but excluding) such
Additional Dividend Payment Date on such share over (ii) all Series A Additional
Dividends actually paid with respect to such share on or before the close of
business on such Additional Dividend Payment Date.
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(e) The 4% Series A Dividends shall accrue, and shall be cumulative
from the Series A Issue Date of the underlying shares, whether or not declared
by the Board of Directors. The Series A Additional Dividends shall accrue, and
shall be cumulative from the first day on which such dividends are due, whether
or not declared by the Board of Directors. The 4% Series A Makewhole Dividend
and the Additional Series A Makewhole Dividend, if any, shall accrue, and shall
be cumulative from the date on which a 4% Series A Dividend Arrearage or Series
A Additional Dividend Arrearage arises, whether or not declared by the Board of
Directors. If the Corporation makes a dividend payment on shares of Series A
Preferred Stock in an amount less than the total amount of accrued and payable
dividends on the underlying shares at such time, then the dividends paid shall
be allocated ratably on a share-by-share basis among all shares of Series A
Preferred Stock then outstanding. The Board of Directors may fix a record date
that is no more than sixty days and no less than ten days prior to any date
fixed for payment of a dividend declared on shares of Series A Preferred Stock
to determine the holders of shares of Series A Preferred Stock entitled to
receive such payment. Accumulated but unpaid dividends for any past dividend
periods or payment dates may be declared and paid at any time (without reference
to any regular payment date) to holders of record on a record date fixed by the
Board of Directors that is no more than sixty days and no less than ten days
preceding the date fixed for payment of such dividends.
(f) The holders of shares of Series A Preferred Stock shall not be
entitled to receive, and the Corporation shall not declare or pay thereon, any
dividends or other distributions except as provided herein. No interest or sum
of money in lieu of interest shall be payable in respect of any dividend payment
or payments on the shares of Series A Preferred Stock which may be in arrears.
Section 6.2. Series B Dividends and Distributions. (a) If during any
calendar year beginning with 1998 the Corporation and its affiliates do not
purchase from Kelly-Springfield tires with an aggregate purchase price in an
amount equal to or greater than (i) for 1998, $60,000,000, (ii) for 1999,
$80,000,000, and (iii) for each calendar year thereafter, an amount averaging at
least 104% of the aggregate purchase price for tires purchased from
Kelly-Springfield in the prior calendar year, holders of shares of Series B
Preferred Stock, in preference to the holders of shares of Common Stock and any
shares of other capital stock of the Corporation other than shares of Parity
Stock or Senior Stock with respect to the Series B Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
the assets of the Corporation legally available therefor, cumulative cash
dividends (the "Series B Dividends") on the Series B Liquidation Preference of
such shares at the Prime Rate. The Series B Dividends shall accrue and be
payable in immediately available funds on the last Business Day of the month of
January following each such calendar year during which the applicable aggregate
purchase price threshold is not equaled or exceeded (each a "Series B Dividend
Payment Date").
(b) If, as of the close of business on any Series B Dividend Payment
Date, there is a Series B Dividend Arrearage (as hereinafter defined), an
additional dividend (the "Series B Makewhole Dividend") shall accrue on each
share of the Series B Preferred Stock for the period from and including such
Series B Dividend Payment Date to the earlier of (x) the date on which such
Series B Dividend Arrearage is paid in full and (y) the next succeeding Series B
Dividend Payment Date, in an amount equal to the product of (i) the Prime Rate
and (ii) the amount of such Series B Dividend Arrearage as of such Series B
Dividend Payment Date. "Series B Dividend Arrearage" means, with respect to each
share of Series B Preferred Stock, as of any Series B Dividend Payment Date, the
excess, if any, of (i) all Series B Dividends accrued to (but excluding) such
Series B Dividend Payment Date on such share over (ii) all Series B Dividends
actually paid with respect to such share on or before the close of business on
such Series B Dividend Payment Date.
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(c) Series B Dividends shall accrue, and shall be cumulative from
the first day on which such dividends are due, whether or not declared by the
Board of Directors. Series B Makewhole Dividends, if any, shall accrue, and
shall be cumulative from the date on which a Series B Dividend Arrearage arises.
If the Corporation makes a dividend payment on the shares of Series B Preferred
Stock in an amount less than the total amount of accrued and payable dividends
on the underlying shares at such time, then the dividends paid shall be
allocated ratably on a share-by-share basis among all shares of Series B
Preferred Stock then outstanding. The Board of Directors may fix a record date
that is no more than sixty days and no less than ten days prior to any date
fixed for payment of a dividend declared on shares of Series B Preferred Stock
to determine the holders of shares of Series B Preferred Stock entitled to
receive such payment. Accumulated but unpaid dividends for any past dividend
periods or payment dates may be declared and paid at any time (without reference
to any regular payment date) to holders of record on a record date fixed by the
Board of Directors that is no more than sixty days and no less than ten days
preceding the date fixed for payment of such dividends.
(d) The holders of shares of Series B Preferred Stock shall not be
entitled to receive, and the Corporation shall not declare or pay, any dividends
or other distributions except as provided herein. No interest or sum of money in
lieu of interest shall be payable in respect of any dividend payment or payments
on the shares of Series B Preferred Stock which may be in arrears.
Section 6.3. Adjustment of Series B Liquidation Preference. After
the date of original issue of the shares of Series B Preferred Stock (the
"Series B Issue Date"), the Series B Liquidation Preference for the outstanding
shares of Series B Preferred Stock on any date (a "Series B Valuation Date")
shall be an amount per share equal to the excess, if any, of (i) $1,000 over
(ii) the quotient obtained by dividing (x) the aggregate Tire Purchase Credit
(as defined below) as of such Series B Valuation Date by (y) the total number of
shares of Series B Preferred Stock outstanding as of such Series B Valuation
Date. The "Tire Purchase Credit" as of any Series B Valuation Date shall be an
amount equal to (x) $1.00 per unit of "Broad Line" tires and (y) $2.00 per unit
of "HV&Z Performance" tires, in each case purchased by the Corporation and its
affiliates from and including the Series B Issue Date through such Series B
Valuation Date; provided that, for purposes of calculating the amount of the
Tire Purchase Credit, purchases of "Value Line" and "OPP" tires shall not be
counted.
Section 6.4. Voting Rights.
(a) Ownership of shares of Kelly Preferred Stock shall entitle the
holders to no voting rights except as provided in this Section 6.4 and under
applicable law.
(b) So long as any shares of either Series A Preferred Stock or
Series B Preferred Stock shall be outstanding, the Corporation shall not,
without the affirmative vote or written consent of the holders of a majority of
the aggregate number of shares of Series A Preferred Stock or Series B Preferred
Stock then outstanding, as applicable, each considered as a separate series, (i)
alter or change the powers, preferences or rights given to the Series A
Preferred Stock or Series B Preferred Stock, as applicable, by these Articles or
(ii) amend these Articles to increase the authorized amount of Series A
Preferred Stock or Series B Preferred Stock or to authorize or create any Senior
Stock or Parity Stock with respect to the Series A Preferred Stock or Series B
Preferred Stock. The amendment of these Articles to authorize or create, or to
increase the authorized amount of, any Junior Stock shall not be deemed to alter
or change the powers, preferences or rights given to the Series A Preferred
Stock or the Series B Preferred Stock by these Articles. Notwithstanding the
foregoing provisions, the affirmative vote or consent of the holders of the
Series A Preferred Stock or the Series B Preferred Stock, as applicable, shall
not be required for any alteration or change on which the holders would
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otherwise be entitled to vote if, at or prior to the time that any such
alteration or change takes effect, due provision is made for the redemption of
all such shares of Series A Preferred Stock or Series B Preferred Stock at the
time outstanding.
(c) So long as Kelly-Springfield holds (of record and beneficially)
all of the outstanding shares of Kelly Preferred Stock, if on any date (1) any
condition or event shall occur which results in the acceleration of the maturity
of the indebtedness evidenced by the Debt Documents or (2) without the requisite
vote or consent of the holders of Series A Preferred Stock or Series B Preferred
Stock, as applicable, the Corporation adversely alters or changes the powers,
preferences or rights given to such series by these Articles, then the number of
directors constituting the Board of Directors shall, without further action, be
increased by the Specified Number (as defined below) and the holders of shares
of Kelly Preferred Stock shall have, in addition to the other voting rights set
forth in these Articles, the exclusive right, voting separately as a single
class, to elect such Specified Number of directors of the Corporation to fill
such newly created directorships, by written consent as provided herein, or at a
special meeting of such holders called as provided herein. Any such additional
directors shall continue as directors (subject to reelection or removal as
provided in Section 6.4(d)(ii)) and the holders of Kelly Preferred Stock shall
have such additional voting rights until such time as (A) Kelly-Springfield no
longer holds (of record and beneficially) all of the outstanding shares of Kelly
Preferred Stock, (B) in the case of any event described in clause (1) above,
such acceleration of the indebtedness evidenced by the Debt Documents shall have
been rescinded or such indebtedness shall have been repaid in full, (C) in the
case of clause (2) above, such adverse alteration or change of the powers,
preferences or rights given to the Series A Preferred Stock or the Series B
Preferred Stock, as applicable, shall have been rescinded or (D) all of the
outstanding shares of Kelly Preferred Stock shall have been redeemed pursuant to
Section 6.5, whichever is earlier, at which time such additional directors shall
cease to be directors and such additional voting rights of the holders of Kelly
Preferred Stock shall terminate subject to revesting in the event of each and
every subsequent event of the character indicated above. "Specified Number"
means a number of directors equal to the number required so that the holders of
Kelly Preferred Stock will have the right to elect, voting separately as a
single class, a majority of the Board of Directors at any time.
(d) (i) The right of holders of shares of Kelly Preferred Stock to
take any action as provided in Section 6.4(c) may be exercised at any annual
meeting of stockholders or at a special meeting of holders of shares of Kelly
Preferred Stock held for such purpose as hereinafter provided or at any
adjournment thereof, or by the written consent, delivered to the Secretary of
the Corporation, of the holders of the minimum number of shares required to take
such action, which shall be a majority of the outstanding shares of Kelly
Preferred Stock unless otherwise required by law.
So long as such right to vote continues (and unless such right has
been exercised by written consent of the minimum number of shares required to
take such action), the President of the Company may call, and upon the written
request of holders of record of at least 10% of the outstanding shares of Kelly
Preferred Stock, addressed to the Secretary of the Company at the principal
office of the Company, shall call, a special meeting of the holders of shares
entitled to vote as provided herein. Such meeting shall be held within 30 days
after delivery of such request to the Secretary, at the place and upon the
notice provided by law and in the by-laws of the Company for the holding of
meetings of stockholders.
(ii) At each meeting of stockholders at which the holders of
shares of Kelly Preferred Stock shall have the right, voting separately as a
single class, to elect the directors of the Corporation as provided in Section
6.4(c), the presence in person or by proxy of the holders of record of a
majority of the total number of shares of Kelly Preferred Stock then
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outstanding and entitled to vote on the matter shall be necessary and sufficient
to constitute a quorum. At any such meeting or at any adjournment thereof:
(A) the absence of a quorum of the holders of shares of Kelly
Preferred Stock shall not prevent the election of directors other than
those to be elected by the holders of shares of Kelly Preferred Stock, and
the absence of a quorum of the holders of shares of any other class or
series of capital stock shall not prevent the election of directors to be
elected by the holders of shares of Kelly Preferred Stock; and
(B) in the absence of a quorum of the holders of shares of
Kelly Preferred Stock, a majority of the holders of such shares present in
person or by proxy shall have the power to adjourn the meeting as to the
actions to be taken by the holders of shares of Kelly Preferred Stock from
time to time and place to place without notice other than announcement at
the meeting until a quorum shall be present.
For taking of any action as provided in Section 6.4(c) by the
holders of shares of Kelly Preferred Stock, each such holder shall have one vote
for each share of such stock standing in his name on the transfer books of the
Corporation as of any record date fixed for such purpose or, if no such date be
fixed, at the close of business on the Business Day next preceding the day on
which notice is given, or if notice is waived, at the close of business on the
Business Day next preceding the day on which the meeting is held or, if action
is taken by written consent, at the close of business on the Business Day next
preceding the day on which such consent is entered into; provided that shares of
Kelly Preferred Stock owned by the Corporation or any Affiliate of the
Corporation shall not be deemed to be outstanding for purposes of taking any
action as provided in Section 6.4(c).
Each director elected by the holders of shares of Kelly Preferred
Stock as provided in Section 6.4(c) shall, unless his or her term shall expire
earlier in accordance with the provisions hereof, hold office until the annual
meeting of stockholders next succeeding his or her election or until his or her
successor, if any, is elected and qualified.
If any director so elected by the holders of Kelly Preferred Stock
shall cease to serve as a director before his or her term shall expire (except
by reason of the termination of the voting rights accorded to the holders of
Kelly Preferred Stock with respect to the Specified Number of directors in
accordance with Section 6.4(c)), the holders of the Kelly Preferred Stock then
outstanding and entitled to vote for such director may, by written consent as
provided herein, or at a special meeting of such holders called as provided
herein, elect a successor to hold office for the unexpired term of the director
whose place shall be vacant.
Any director elected by the holders of shares of Kelly Preferred
Stock voting separately as a single class may be removed from office with or
without cause by the vote or written consent of the holders of at least a
majority of the then outstanding shares of Kelly Preferred Stock, at the time of
removal.
Section 6.5. Redemption.
(a) Subject to the restrictions contained in Section 6.6, beginning
on the last Business Day of December 2002, and on the last Business Day of each
June and December thereafter ending on the last Business Day of June 2007 (each
a "Series A Fixed Redemption Date"), the Corporation shall redeem, out of the
assets of the Corporation legally available therefor, a number of outstanding
shares of Series A Preferred Stock equal to the lesser of (x) 700 and (y) the
total number of shares of Series A Preferred Stock outstanding on such Series A
Fixed Redemption Date at a price per share equal to the sum of (1) 100% of the
Series A
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Liquidation Preference and (2) an amount per share equal to all accrued and
unpaid Series A Dividends, 4% Series A Makewhole Dividends and Additional Series
A Makewhole Dividends on such shares, whether or not declared or payable, to
such Series A Fixed Redemption Date, in immediately available funds. If less
than all of the outstanding shares of Series A Preferred Stock are to be
redeemed pursuant to this Section 6.5(a), shares shall be redeemed from all
holders of outstanding Series A Preferred Stock on the date the redemption
notice specified in Section 6.5(g) is mailed, pro rata in proportion (to the
extent practicable) to the number of shares of Series A Preferred Stock held by
each such holder. No fractions of shares shall be redeemed pursuant to this
Section 6.5(a).
(b) Subject to the restrictions contained in Section 6.6, on the
last business day of June 2007 (the "Series B Fixed Redemption Date"), the
Corporation shall redeem, out of the assets of the Corporation legally available
therefor, all of the outstanding shares of Series B Preferred Stock at a price
per share equal to the sum of (1) 100% of the Series B Liquidation Preference
and (2) an amount per share equal to all accrued and unpaid Series B Dividends
and Series B Makewhole Dividends on such shares, whether or not declared or
payable, to the Series B Fixed Redemption Date, in immediately available funds.
(c) Subject to the restrictions contained in Section 6.6, no later
than 30 Business Days after the termination of the Supply Agreement (the "Supply
Agreement") to be entered into by and between the Corporation and
Kelly-Springfield in connection with Kelly-Springfield's purchase of the Kelly
Preferred Stock (the "Kelly Mandatory Redemption Date"), the Corporation shall
redeem, out of the assets of the Corporation legally available therefor, all of
the shares of Kelly Preferred Stock outstanding on the Kelly Mandatory
Redemption Date at a price per share equal to the sum of (1) the product of (x)
100% of the Series A Liquidation Preference or the Series B Liquidation
Preference, as applicable, and (y) the Applicable Premium then in effect as
provided in paragraph (f) below and (2) an amount per share equal to all accrued
and unpaid Series A Dividends, 4% Series A Makewhole Dividends and Additional
Series A Makewhole Dividends or Series B Dividends and Series B Makewhole
Dividends, as applicable, whether or not declared or payable, to the Kelly
Mandatory Redemption Date, in immediately available funds.
(d) Subject to the restrictions contained in Section 6.6, if, at any
time after the Series A Issue Date a Change of Control (as defined below)
occurs, the Corporation shall, within 10 Business Days after such occurrence,
send notice of such occurrence to the holders of Kelly Preferred Stock. If,
within 10 Business Days of such notice, (i) the holders of all (but not less
than all) of the outstanding shares of Kelly Preferred Stock send notice to the
Corporation specifying that such holders thereby request that the Corporation
redeem all of the outstanding shares of Kelly Preferred Stock held by each such
holder and (ii) Kelly-Springfield agrees in writing to the termination of the
Supply Agreement, the Corporation shall redeem, out of the assets of the
Corporation legally available therefor, all such shares within 30 Business Days
of the Corporation's receipt of all such requests (the "Change of Control
Redemption Date") at a price per share equal to the sum of (1) the product of
(x) 100% of the Series A Liquidation Preference or the Series B Liquidation
Preference, as applicable, and (y) the Applicable Premium then in effect as
provided in paragraph (f) below and (2) an amount per share equal to all accrued
and unpaid Series A Dividends, 4% Series A Makewhole Dividends and Additional
Series A Makewhole Dividends or Series B Dividends and Series B Makewhole
Dividends, as applicable, whether or not declared or payable, to the Change of
Control Redemption Date, in immediately available funds.
"Change of Control" means such time as (i) any person or "group"
(within the meaning of Section 13(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") other than the Principal Shareholders (as defined below), Family
Members (as defined below) or
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Kelly-Springfield is or becomes the beneficial owner, directly or indirectly, of
outstanding shares of capital stock of the Corporation, entitling such person or
persons to exercise 50% or more of the total votes entitled to be cast at a
regular or special meeting, or by action by written consent, of stockholders of
the Corporation (the term "beneficial owner" shall be determined in accordance
with Rule 13d-3, promulgated by the Securities and Exchange Commission under the
Exchange Act), (ii) a majority of the Board of Directors shall consist of
persons other than Continuing Directors (the term "Continuing Director" shall
mean any member of the Board of Directors on the Series A Issue Date, any member
of the Board of Directors elected by Kelly-Springfield pursuant to Section
6.4(c) of these Articles and any other member of the Board of Directors who
shall be recommended or elected to succeed or become a Continuing Director by a
majority of Continuing Directors who are then members of the Board of
Directors), (iii) the stockholders of the Corporation shall have approved a
recapitalization, reorganization, merger, consolidation or similar transaction,
in each case, with respect to which all or substantially all the persons who
were the respective beneficial owners of the outstanding shares of capital stock
of the Corporation immediately prior to such recapitalization, reorganization,
merger, consolidation or similar transaction will beneficially own, directly or
indirectly, less than 50% of the combined voting power of the then outstanding
shares of capital stock of the Corporation resulting from such recapitalization,
reorganization, merger consolidation or similar transaction; or (iv) the
stockholders of the Corporation shall have approved the sale or other
disposition of all or substantially all the assets of the Corporation in one
transaction or in a series of related transactions to a person not owning or
controlling, or any entity not owned or controlled by the holders of, directly
or indirectly, 50% or more of the combined voting power of the outstanding
shares of capital stock of the Corporation immediately prior to such
disposition. "Family Member" means (i) a member of a Principal Shareholder's
family, which shall include her or his ancestors, spouse, siblings, descendants
or spouses (or surviving spouse) of descendants, or (ii) a trust, corporation,
partnership or other entity, all of the beneficial interests in which shall be
held by a Principal Shareholder or one or more persons described in clause (i);
provided, that during the period any such trust, corporation, partnership or
other entity holds any right, title or interest in any Common Stock, no Person
other than such Principal Shareholder or one or more Family Members of such
Principal Shareholder of the type listed in clause (i) may be or become
beneficiaries, stockholders or limited or general partners or owners thereof.
"Principal Shareholders" means Ann Heafner Gaither, William H. Gaither, Susan
Gaither Jones and Thomas R. Jones.
(e) Subject to the restrictions contained in Section 6.6, at any
time after the Series A Issue Date, the Corporation may, in its sole discretion,
redeem all (but not less than all) of the outstanding shares of Kelly Preferred
Stock, out of the assets of the Corporation legally available therefor, at a
price per share equal to the sum of (1) the product of (x) 100% of the Series A
Liquidation Preference or the Series B Liquidation Preference, as applicable,
and (y) the Applicable Premium then in effect as provided in paragraph (f) below
and (2) an amount per share equal to all accrued and unpaid Series A Dividends,
4% Series A Makewhole Dividends and Additional Series A Makewhole Dividends or
Series B Dividends and Series B Makewhole Dividends, as applicable, whether or
not declared or payable, to the Optional Redemption Date (as defined below), in
immediately available funds. "Optional Redemption Date" means, with respect to a
redemption pursuant to this Section 6.5(e), the date specified for such
redemption in the notice to the holders of the Kelly Preferred Stock required
under Section 6.5(g).
(f) The "Applicable Premium" for each of the following periods shall
be the number set forth opposite such period below:
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-----------------------------------------------------------------------
Period Applicable Premium
-----------------------------------------------------------------------
Series A Issue Date through first anniversary 1.22
-----------------------------------------------------------------------
After first anniversary through second anniversary 1.20
-----------------------------------------------------------------------
After second anniversary through third anniversary 1.18
-----------------------------------------------------------------------
After third anniversary through fourth anniversary 1.15
-----------------------------------------------------------------------
After fourth anniversary through fifth anniversary 1.10
-----------------------------------------------------------------------
After fifth anniversary 1.00
-----------------------------------------------------------------------
(g) Notice of any redemption of shares of Kelly Preferred Stock
pursuant to this Section 6.5 shall be mailed at least 10, but not more than 30,
days prior to the date fixed for redemption to each holder of shares of Kelly
Preferred Stock to be redeemed, at such holder's address as it appears on the
transfer books of the Corporation. Such notice shall include instructions for
the surrender of the Kelly Preferred Stock to be redeemed and the receipt of
payment therefor. In order to facilitate the redemption of shares of Kelly
Preferred Stock pursuant to this Section 6.5, the Board of Directors may fix a
record date for the determination of shares of Kelly Preferred Stock to be
redeemed, or may cause the transfer books of the Corporation for the Kelly
Preferred Stock to be closed, not more than 30 days or less than 10 days prior
to the date fixed for such redemption.
(h) Notice of redemption having been given as aforesaid, upon the
date fixed for redemption in respect of shares of Kelly Preferred Stock to be
redeemed pursuant to this Section 6.5, notwithstanding that any certificates for
such shares shall not have been surrendered for cancellation, from and after the
date of redemption designated in the notice of redemption, (i) the shares of
Kelly Preferred Stock represented thereby shall no longer be deemed outstanding,
(ii) the rights to receive dividends thereon shall cease to accrue, and (iii)
all rights of the holders of shares of Kelly Preferred Stock to be redeemed
shall cease and terminate, excepting only the right to receive the applicable
redemption price.
Section 6.6. Limitations on Mandatory Redemption and Dividends.
Notwithstanding anything to the contrary in these Articles, so long as any
amounts are outstanding under any Debt Documents (as defined below) or any
commitments to lend under the Debt Documents have not been terminated, the
Corporation shall not make payment in respect of any redemption permitted or
otherwise required by Section 6.5, or declare, make or pay any dividend or
distribution in respect of any shares of Kelly Preferred Stock if any Event of
Default (as defined in the Debt Documents) or default under any of the Debt
Documents or any event which, upon notice or lapse of time, or both, would
constitute an Event of Default has occurred and is continuing or would result
therefrom and has not been cured or waived in writing by the requisite vote of
the holders of the indebtedness represented by the Debt Documents. "Debt
Documents" means the Loan and Security Agreement, dated as of the Series A Issue
Date between the Corporation, Oliver & Winston, Inc., the financial institutions
party thereto and BankBoston, N.A., as agent, and the Senior Subordinated Note
and Warrant Purchase Agreement, dated the Series A Issue Date, by and among the
Corporation and The 1818 Mezzanine Fund, L.P., and the notes, mortgages,
security documents, guaranties and other agreements entered into in connection
therewith (each as amended, modified, supplemented and/or restated from time to
time in accordance with its terms, including any replacement agreement therefor
and any refinancing of the debt incurred thereunder, which refinancing may
result in a greater principal amount outstanding in connection therewith).
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Section 6.7. Reacquired Shares. Any shares of Kelly Preferred Stock
exchanged, redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares of Kelly Preferred Stock shall upon their cancellation
become authorized but unissued shares of preferred stock, par value $.01 per
share, of the Corporation and, upon the filing of an appropriate charter
amendment with the Secretary of State of the State of North Carolina, may be
reissued as part of another series of preferred stock, par value $.01 per share,
of the Corporation subject to the conditions or restrictions on issuance set
forth herein, but in any event may not be reissued as shares of Kelly Preferred
Stock or other Parity Stock unless all of the shares of Kelly Preferred Stock
shall have already been redeemed.
Section 6.8. Liquidation, Dissolution or Winding Up. (a) If the
Corporation shall commence a voluntary case under the United States bankruptcy
laws or any applicable bankruptcy, insolvency or similar law of any other
country, or consent to the entry of an order for relief in an involuntary case
under any such law or to the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Corporation
or of any substantial part of its property, or make an assignment for the
benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or if a decree or order for relief in respect of
the Corporation shall be entered by a court having jurisdiction in the premises
in an involuntary case under the United States bankruptcy laws or any applicable
bankruptcy, insolvency or similar law of any other country, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Corporation or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and on account of any
such event the Corporation shall liquidate, dissolve or wind up, or if the
Corporation shall otherwise liquidate, dissolve or wind up, no distribution
shall be made (i) to the holders of shares of Junior Stock with respect to the
Kelly Preferred Stock unless, prior thereto, the holders of shares of Kelly
Preferred Stock shall have received an amount equal to the Series A Liquidation
Preference or the Series B Liquidation Preference, as applicable, plus all
accrued and unpaid dividends, whether or not declared or currently payable, to
the date of distribution, with respect to each outstanding share, or (ii) to the
holders of shares of Parity Stock with respect to the Kelly Preferred Stock,
except distributions made ratably on the Kelly Preferred Stock and all other
Parity Stock in proportion to the total amounts to which the holders of all
shares of Kelly Preferred Stock and other Parity Stock are entitled upon such
liquidation, dissolution or winding up.
(b) Neither the consolidation or merger of the Corporation with or
into any other person or entity nor the sale, lease, exchange (for cash, shares
of stock, securities or other consideration) or other distribution to another
person or entity of all or substantially all the assets, property or business of
the Corporation shall be deemed to be a liquidation, dissolution or winding up
of the Corporation for purposes of this Section 6.8.
Section 6.9. Exercise of Rights. (a) The rights of holders of shares
of Kelly Preferred Stock to take any action as provided in Article 6 hereof may
be exercised at any annual meeting of stockholders or by the written consent,
delivered to the Secretary of the Corporation, of the holders of the minimum
number of shares required to take such action, which shall be a majority of the
outstanding shares of Series A Preferred Stock or Series B Preferred Stock, as
applicable, unless otherwise required by law.
(b) For taking of any action as provided in this Article 6 by the
holders of shares of Kelly Preferred Stock, each such holder shall have one vote
for each share of such stock standing in its name on the transfer books of the
Corporation as of any record date fixed for such purpose or, if no such date be
fixed, at the close of business on the Business Day next preceding
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the day on which notice is given, or if notice is waived, at the close of
business on the Business Day next preceding the day on which the meeting is
held.
ARTICLE 7. CORPORATE EXISTENCE. The Corporation is to have perpetual
existence.
ARTICLE 8. CORPORATE GOVERNANCE. 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 of its stockholders or any class thereof, as the case may be,
it is further provided:
Section 8.1. Management. 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
election of directors need not be by written ballot except and to the extent
provided in the By-laws of the Corporation.
Section 8.2. Amendment of Articles. From time to time any of the
provisions of these Articles may be amended, altered or repealed, and other
provisions authorized by the laws of the State of North Carolina at the time in
force may be added or inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the stockholders of the
Corporation by these Articles are granted subject to the provisions of this
Section 8.2.
Section 8.3. Amendment of By-laws. The Board of Directors shall,
subject to Section 55-10-22 of the Act, have the power to adopt, amend, or
repeal the By-laws of the Corporation.
Section 8.4. Indemnification of Directors. To the fullest extent
permitted by the Act, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. No amendment, modification or repeal of this Section 8.4
shall adversely affect any right or protection of a director that exists at the
time of such amendment, modification or repeal.
Section 8.5. Indemnification of Authorized Persons. The Corporation
shall, to the fullest extent permitted by the Act, indemnify any and all persons
whom it shall have power to indemnify thereunder from and against any and all of
the expenses, liabilities, or other matters referred to in or covered by the Act
and may advance funds to such persons in respect of such expenses, liabilities
or other matters. The indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent, and shall inure to
the benefit of the heirs, executors, and administrators of such a person.
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IN WITNESS WHEREOF, the Corporation has caused these Second Amended
and Restated Articles of Incorporation to be signed in its name by its President
and Chief Executive Officer on May 11, 1998.
/s/ WILLIAM H. GAITHER
-----------------------------
William H. Gaither
President and Chief Executive
Officer
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STATE OF NORTH CAROLINA
ARTICLES OF MERGER
OF
ITCO LOGISTICS CORPORATION
A DELAWARE CORPORATION
INTO
THE J. H. HEAFNER COMPANY, INC.
A NORTH CAROLINA CORPORATION
Pursuant to sections 55-11-07(a)(4), 55-11-04, and 55-11-05 of the North
Carolina Business Corporation Act (the "NCBCA"), The J. H. Heafner Company,
Inc., a corporation organized under the laws of North Carolina (the "Surviving
Corporation"), hereby submits these Articles of Merger for the purpose of
merging ITCO Logistics Corporation, a corporation organized under the laws of
Delaware (the "Merging Corporation"), with and into the Surviving Corporation
(such transaction being the "Merger").
1. With respect to each corporation which is a party to the Merger, the
Plan of Merger attached hereto as Exhibit A and made a part hereof was duly
authorized and approved by unanimous consent and in the manner prescribed by law
by the Board of Directors as required by the NCBCA and the General Corporation
Law of Delaware (the "DGCL").
2. The Surviving Corporation owns all of the outstanding shares of each
class of stock of the Merging Corporation. Pursuant to Section 55-11-04 of the
NCBCA and Section 253 of the DGCL, the Merger does not require the vote of the
shareholders of either the Surviving Corporation or the Merging Corporation.
3. The Merger is permitted by the law of the state of incorporation of each
foreign entity which is a party to the Merger.
4. Each foreign entity which is a party to the merger has complied or shall
comply with the applicable laws of its state of incorporation regarding such
Merger.
5. These Articles of Merger shall be effective as of 9:00 p.m., North
Carolina time, on December 31, 1998.
19
This 31 day of December, 1998.
The J. H. Heafner Company, Inc.,
a North Carolina corporation
/s/ William H. Gaither
By: ________________________________
William H. Gaither
President and Chief Executive Officer
20
PLAN OF MERGER
THIS PLAN OF MERGER ("Plan") made as of November 23, 1998, by and
between The J. H. Heafner Company, Inc., a corporation organized under the laws
of North Carolina ("Heafner") and ITCO Logistics Corporation, a corporation
organized under the laws of Delaware (the "Merging Corporation") (collectively,
Heafner and the Merging Corporation are herein referred to as "Constituent
Corporations").
W I T N E S S E T H:
WHEREAS, Merging Corporation is a wholly-owned, direct subsidiary of
Heafner;
WHEREAS, the Board of Directors of each of Heafner and the Merging
Corporation have determined that it is advisable and in the best interests of
such corporations for the Merging Corporation to be merged with and into Heafner
(the "Merger") upon the terms and conditions set forth herein and in accordance
with the Delaware General Corporation Law and the North Carolina Business
Corporation Act; and
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions contained herein,
at the Effective Time (as defined below), the Merging Corporation shall be
merged with and into Heafner, with Heafner being the surviving corporation (the
"Surviving Corporation"). Upon the effectiveness of the Merger, the Surviving
Corporation shall possess all of the rights, privileges, powers and franchises
of the Constituent Corporations, and all property (real, personal and mixed) and
other assets (tangible and intangible) belonging to the Constituent Corporations
shall be vested in the Surviving Corporation, and all such property, assets,
rights, privileges, powers and franchises shall thereafter belong to the
Surviving Corporation, and the title to any real estate vested by deed or
otherwise in the Constituent Corporations shall not revert or be in any way
impaired by reason of the Merger, but all rights of creditors and all liens upon
any property of the Constituent Corporations shall be preserved unimpaired, and
all debts, liabilities and duties of the Constituent Corporations shall,
following the Merger, attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities and duties had been
incurred or contracted by the Surviving Corporation.
1.2 Consummation of the Merger. Promptly following and subject to the
satisfaction of the conditions set forth in Article V herein, the parties hereto
shall cause Articles of Merger to be filed with the Secretary of State of North
Carolina in such form as required by, and executed in accordance with, the
relevant provisions of the North Carolina Business Corporation Act. Furthermore,
promptly following and subject to the satisfaction of the conditions set forth
in Article V herein, the Surviving Corporation shall cause a Certificate of
Ownership and Merger to
21
be filed with the Secretary of State of Delaware in such form as required by,
and executed in accordance with, the relevant provisions of the Delaware General
Corporation Law. The Merger shall be effective upon the completed filing of the
Articles of Merger and Certificate of Ownership and Merger (the "Effective
Time").
1.3 Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any further deeds,
assignments, assurances or any other acts are necessary, desirable or proper to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation,
the title to any property or right of the Constituent Corporations acquired or
to be acquired by reason, or as a result, of the Merger, the Merging Corporation
agrees that the Surviving Corporation and its officers shall execute and deliver
all such deeds, assignments and assurances and do all acts necessary, desirable
or proper to vest, perfect or confirm title to such property or right in the
Surviving Corporation, and the officers of the Surviving Corporation are fully
authorized in the name of the Merging Corporation or otherwise to take any and
all such action.
ARTICLE II
THE SURVIVING CORPORATION
2.1 Articles of Incorporation. Following the Effective Time, the
Articles of Incorporation of Heafner on the date hereof shall be the Articles of
Incorporation of the Surviving Corporation until thereafter amended or repealed
in accordance with the terms thereof and applicable law.
2.2 By-Laws. Following the Effective Time, the By-Laws of Heafner shall
continue to be the By-Laws of the Surviving Corporation until amended or
repealed in accordance with the provisions thereof, the Articles of
Incorporation of the Surviving Corporation and applicable law.
2.3 Directors. Following the Effective Time, the directors of Heafner
shall continue to be the directors of the Surviving Corporation until their
respective successors are duly elected and qualified in the manner provided in
the By-Laws and the Articles of Incorporation of the Surviving Corporation and
applicable law, or until their earlier resignation or removal.
2.4 Officers. Following the Effective Time, the officers of Heafner
shall continue to be the officers of the Surviving Corporation until their
successors are duly elected and qualified in the manner provided in the By-Laws
and the Articles of Incorporation of the Surviving Corporation and applicable
law, or until their earlier resignation or removal.
2
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ARTICLE III
CONVERSION AND CANCELLATION OF SHARES
3.1 Conversion and Cancellation of Shares. As of the Effective Time, by
virtue of the Merger and without any further action on the part either of the
constituent corporations or any holder of any of the capital stock thereof:
(a) Each issued and outstanding share of the Merging
Corporation Stock shall cease to exist and shall be cancelled, retired, and
eliminated, and no shares of Heafner shall be issued in respect thereof.
(b) Each issued and outstanding share of Heafner Common Stock
shall remain outstanding after the Merger and shall not be affected thereby.
ARTICLE IV
CONDITIONS TO CLOSING
The obligations of the Constituent Corporations to consummate the
transactions contemplated by this Plan are subject only to the approval of the
Merger at or before the Effective Time, by the affirmative vote or by the
written consent, of the board of directors of Heafner pursuant to Section
55-11-04 of the North Carolina Business Corporation Act and Section 253 of the
Delaware General Corporation Law.
[SIGNATURES ON FOLLOWING PAGE]
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23
IN WITNESS WHEREOF, the parties hereto have executed this Plan as of
the date first written above.
THE J. H. HEAFNER COMPANY, INC.,
a North Carolina corporation
/s/ William H. Gaither
By: _________________________________________
William H. Gaither
President and Chief Executive Officer
ITCO LOGISTICS CORPORATION, a Delaware
corporation
/s/ William H. Gaither
By: _________________________________________
William H. Gaither
President and Chief Executive Officer
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CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
ITCO LOGISTICS CORPORATION
INTO
THE J.H. HEAFNER COMPANY, INC.
THE J.H. HEAFNER COMPANY, INC., a North Carolina corporation, does
hereby certify pursuant to Section 253 and Section 103 of the Delaware General
Corporation Law as follows:
1. THE J.H. HEAFNER COMPANY, INC. owns all of the outstanding shares of
each class of stock of ITCO LOGISTICS CORPORATION, a Delaware corporation.
2. THE J.H. HEAFNER COMPANY, INC. hereby merges ITCO LOGISTICS
CORPORATION into THE J.H. HEAFNER COMPANY, INC. and assumes all obligations of
ITCO LOGISTICS CORPORATION pursuant to the resolutions of the Board of Directors
of THE J.H. HEAFNER COMPANY, INC., a copy of which is attached as Exhibit A
hereto, which were duly adopted by the Directors of THE J.H. HEAFNER COMPANY,
INC at the November 23, 1998 Regular Meeting of the Directors.
3. This Certificate of Ownership and Merger shall be effective as of
9:00 p.m., Delaware Time, on December 31, 1998.
IN WITNESS WHEREOF, THE J.H. HEAFNER COMPANY, INC. has caused this
Certificate of Ownership and Merger to be signed by William H. Gaither, its
President and Chief Executive Officer, this 31 day of December, 1998.
THE J.H. HEAFNER COMPANY, INC.,
a North Carolina corporation
/s/ William H. Gaither
By:_________________________________
William H. Gaither
President and Chief Executive Officer